Czasopismo Prawno-Historyczne
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Konferencja naukowa: „Profesor Jan Baszkiewicz - człowiek Uniwersytetu”
Get PDFKonferencja naukowa: „Profesor Jan Baszkiewicz - człowiek Uniwersytetu
Problem powstania i charakteru prawa małżeńskiego z 1836 roku
Get PDFThe paper presents events that had preceded the work on the drafting of matrimonial law for the territory of Poland established at the Vienna Congress (1815) as an autonomous unit under the name the Kingdom of Poland, formerly under the occupation of the Russian Empire. The existing Napoleon Code that applied to that territory provided for a lay character of matrimony and as such was opposed by the Roman Catholic church. As a result, the dispute concerning the nature of the state matrimonial law that continued between 1818 and 1830 ended in the implementation in 1836 of a law of a mixed character that combined elements of the lay and well as religious approaches. That law had remained in force until 1945. The complexity of matrimonial law of 1836 was a consequence of its provisions based of religious principles of individual religious denominations. Hence, interpretation and application of that law, already difficult because of its dual character, was further hindered by the unclear relation of that law to the underlying it religious laws, and particularly, the importance of the Catholic canon law provisions in civil law relationships. The judicial decisions of the interwar period (1918-1945) did not provide any uniform interpretation of that issue. However, two basic views regarding the reception of religious law in the state’s matrimonial law were formulated. In one, pursuant to the adopted formula of incorporation of religious law in the matrimonial law enacted by the state, only those religious norms that were included in the state law constituted the basis for effective solutions and decisions. According to the other view, religious law attained a state law value by the very fact that the matrimonial law of 1836 had referred to religious laws and regulations. After the end of World War II, matrimonial law in its previous shape was practically neglected. Since 1989, following the change in the political regime, a religious concept of matrimony has been promoted, but nothing than mere postulates in that matter have been so far proposed
„W czym vertitur powaga moja hetmańska…” Organizacja i procedura sądu hetmańskiego w Koronie w latach 1683-1699
Get PDFThis paper describes the sand procedure of the Hetman’s Court in the Crown Army at the time of the Great Turkish War (1683-1699). The Court has not been the subject of a separate study since the 1920s, whereas older studies relied on a very meagre source base. Meanwhile, there were availble Hetman’s registers (copies of documents issued by Hetman’s chancellery) from the period when the offi ce was held by Stanisław Jan Jabłonowski, the Ruthenian Palatine and later Kraków Castellan. The registers, albeit incomplete (registers for 1683-1685, 1687-1689 and 1696 are missing), contain, inter alia, decrees issued by the Court Martial (i.e., the Hetman’s Court), which served as the basis for this discussion. The Great Crown Hetman, similarly to the connétable de France (until 1627), combined in his hand the authority of the Commander-in-Chief of the regular army and the administrative authority over it. One of the major aspects of the latter was administration of justice over soldiers. Originally, the hetman had exclusive jurisdiction in this respect but the demands of nobility who suffered from robberies by soldiers resulted in subjecting soldiers to the jurisdiction of ‘civil’ (i.e. non military) courts. In the late 17th century, one can speak of the practically overlapping jurisdiction of the Hetman’s Court, Crown Tribunal and fi scal organs with relation to so-called causae iniuriatorum (causes of the aggrieved: nobility vs. the army). The Great Crown Hetman did not have as extensive a judicial apparatus as some western European armies at that time. Most causes were adjudicated by Jabłonowski himself (possibly with the assistance of junior judges). The Court Martial had also its own instigator and ushers. The competences of military judges are not very clear. To perform certain evidentiary acts (such as inquisition – an equivalent of scrutinum conducted in district courts (sądy ziemskie) – a kind of on-site inspection combined with the hearing of witness testimony) the Hetman would delegate trusted offi cers or national enlistment comrades and, not infrequently, local ‘civil’ offi cers. The role of military police was doubtless performed by the Hetman’s company of Hungarian infantry. The procedure of the Hetman’s court was similar to that of a trial before a district court. A military trial was in principle instituted by a complaint, it was adversarial and controlled by the parties. Proceedings were instituted by bringing a complaint to the military instigator who, in turn, petitioned the Hetman to issue a writ of summons. The penalty for a failure to appear on the fi rst date was contumacy (a fi ne – so-called niestanne). A writ of summons for the second date was announced publicly. The second term was a strict one – a failure to appear meant losing the case, having one’s pay distrained (this, by the way, was the most effective remedy) and – theoretically – being dishonourably discharged from the army (wytrąbienie). The most common evidence included inquisition, interrogation (involving torture in the case of people of non-noble descent) and an oath. The most important penalties imposed by the Court Martial included the penalty of the throat (death penalty – imposed very rarely, it practically was not executed in the case of noblemen), imprisonment in a tower and fi nally damages, which had the greatest practical value
Warunek si navis ex Asia venerit w starożytności i średniowieczu
Get PDFThe si navis ex Asia venerit condition made a spectacular career in the texts of Roman jurists. It was so characteristic that even the medieval works that drew on the Roman tradition had plenty of referrals to that condition. Its popularity was obviously connected with its reference to that sphere of life that was essential for the development of the Roman state. However, there is not enough data to allow determination to what extent the frequency of the reference to those words was influenced by sociological factors, or the authority of jurists whose words were quoted, and who referred to that condition. In other words, whether it was the ‘charisma’ of those authorities that played a decisive role in its wide reception and recognition. The review of texts that contain the formula of the above condition allows us to formulate a thesis that the si navis ex Asia venerit condition was used to present issues from almost all areas of law, including the procedural law. It usually took the form of a suspending, casuistic and positive condition. It appeared only once as a negative condition (Digests 44,7,44,2). A careful analysis of individual fragments of the selected texts in which the condition did appear allows us to formulate a postulate that a philological method in the research into Roman law should be used with a substantial degree of caution
„Jesteśmy tu dla Polski”. III Rada Narodowa RP wobec wydarzeń w kraju (1949–1951)
Get PDFThe article presents discussions on the situation in Poland which took place at the forum of the Third National Council. The Council was appointed by the president of Poland in Exile August Zaleski in 1949. It was vicariously performing some of the functions of the Parliament and as such it was an advisory body to the president and to the government. Its term of office lasted for two years (between 1949 and 1951). Polish authorities in exileregarded Poland as an occupied country and that it was ruled by imposed agents. News coming from the country indicated that the communists ruling in Poland were steering it toward its total sovietisation. Politicians in emigration appealed numerous times to their fellow countrymen in the homeland not to undertake armed combat. They feared that an anti-communist uprising would end in disaster. Their goal was free Poland, independent and whole. However, they could not create a programme which would enable achieving this goal
Rezolucje interpretacyjne Rady Nieustającej
Get PDFOne of the most important powers of the Permanent Council that functioned in the years 1775 1789 in Poland was the interpretation of the law in force. The Council issued interpretative resolutions based on the drafts prepared by the Department of Justice, and those resolutions were subsequently approved at the Council’s plenary sessions. Minutes of the Permanent Council’s sessions that have been preserved to these days were the subject of a study which subsequently allowed to identify the entities which petitioned for the interpretation of an unclear provision, the main reasons of doubts in the construction of law, and the main issues or problems that needed to be clarifi ed. The knowledge gained from this study sheds new light on the performance of the Permanent Council which was the fi rst central body of executive power operating in the Polish territory
