Original scientific paper
https://doi.org/10.3935/zpfz.71.2.02
“The Concordat's legal force must be recognised still today, since there can be no exception among validly promulgated acts”
Mirela Krešić
orcid.org/0000-0001-7065-7129
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
After the abolishment of neo-absolutism and the restoration of constitutionality (1860), there were debates on the validity of Austrian regulations introduced by means of patents, including the 1855 Concordat. There were often opposing views on the issue, therefore it was discussed not only from a legal standpoint but also as a significant national-political and ecclesiastical issue.
Using probate records from the holdings of the Table of Seven (Stol sedmorice) kept in the Croatian State Archives pertaining to a claim of the title of inheritance after Bishop Strossmayer’s death, the paper reconstructs a legal framework for regulating the title of inheritance on the basis of the prelate’s will and analyses judgements of the Royal Court Table in Osijek (Kraljevski sudbeni stol), the Ban´s Court (Banski stol) and the Table of Seven and their reasonings.
Based on the claim arising from the challenge of the bishop’s will, the courts of law deliberated the validity of the Concordat and considered the issue of whether restoration of constitutionality repealed the regulations that had been introduced during the period of absolutism, including the Concordat. Assuming that the Concordat was still in force, the courts examined the issue of whether Kolonić’s (Kollonich, Kollonitsch) Convention was considered a piece of legislation that had been in force earlier, i.e. juxta sacros canones invoked by §XXI of the Concordat, not allowing the application of the part referring to the prelate’s freedom to dispose by will. Instead, the valid dispositions by will required the ruler’s approval. Since in the view of the plaintiff, Bishop Strossmayer had not obtained the ruler’s approval, his will was null and void. Consequently, rules of intestacy applied according to which the plaintiff was one of the heirs entitled to one third of the assets.
All three judicial levels held that the Concordat as a State law continued to be in force, that Kolonić's Convention was not juxta sacros canones, and that Bishop Strossmayer’s testamentary disposition was valid. In their finding, the courts emphasised that the Concordat had been promulgated in accordance with the law. They deemed the fact that the Concordat had been promulgated during absolutism to be of no consequence since, in accordance with the Law on Judiciary (Zakon o vlasti sudačkoj), courts of law could not assess the constitutionality of pieces of legislation that had been duly promulgated. Moreover, the Instruction on the Provisional Regulation of Counties (Naputak o privremenom uređenju županija) provided for the application of all neo-absolutist regulations until their explicit repeal or replacement by appropriate Croatian regulations, whereas the fact that Austria and Hungary had repealed the Concordat had no impact whatsoever on Croatia. The judicial bodies held that the Concordat was a State law and applicable as such. In addition, they also held that Kolonić’s Convention, whose validity was confirmed by legislative Article 1715:XVI, was a State law, and by no means juxta sacros canones, i.e. the holy law of the Church, which was the qualification that would have enabled its application by invoking the Concordat.
Keywords
the 1855 Concordat; General Civil Code; Croatia and Slavonia; Josip Juraj Strossmayer; will
Hrčak ID:
259349
URI
Publication date:
21.6.2021.
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