Abstract

CONNAUGHTON, Brian. Judicial reform in Spain and New Spain in the 18th and 19th centuries: Matters of contention, procedural paradigms and ecclesiastical defense. Estud. hist. novohisp [online]. 2015, n.53, pp.30-51. ISSN 2448-6922.  https://doi.org/10.1016/j.ehn.2015.06.004.

This study deals with the 18th century juridical crisis in the Spanish Empire, where royal justice attempted to elevate the role of the royal courts and judges in criminal prosecutions, diminishing or eventually eliminating exceptions granted on account of judicial immunities (fuero) o privileged status. Of particular importance were both the perception of impunity caused by attention to such privileges and the fear that it would delegitimize the juridical system and cause social conflict. The struggle against ecclesiastic impunity in the case of grave crimes grew in consequence. Royal lawyers put together legal briefs to establish criminal antecedents and juridical procedure, gradually formulating concepts regarding monarchical sovereignty, the State, the clergy and citizens. Despite their contentions, royal clemency and ecclesiastical resistance -with brilliant juridical rejoinders- prevailed until 1810, yielding partially thereafter in the midst of the war of Independence. Nonetheless, a new legal codification was delayed for decades both in Spain and Mexico, since the criterion of 'sovereign privilege' (potestad económica) as the final right of the executive to determine due procedure, leaving ecclesiastical immunity formally intact while subject to the intromission of the civil courts and final decision by the executive.

Keywords : Justice; Impunity; Judicial appeal; Sovereign privilege.