Common Lands and Jurisdiction at the Border (Gipuzkoa and Navarra, 17th and 18th centuries)
Camilla de Freitas Macedo
In recent years, historians have increasingly turned their attention to property history and the relation between social composition and land occupation. The growth of interdisciplinary perspectives, focusing not only on the juridical institutions that legitimised land occupation but also on the social profile of those occupying the land, is generating new research questions and approaches that mean the topic remains stimulating, despite the substantial historiography already in existence. Furthermore, the increase of contributions by historians from different contexts enables us to overcome regionalist or nationalist approaches and to think about the process of land
occupation and the consolidation of private property from a more global point of view. Within this framework, the 19th century has acquired key relevance, with a marked interest in the privatisation processes of common goods or their conversion into the municipal property.
The most studied issues concerning land matters in the Basque-Navarre territory are the institution of primogeniture (mayorazgos) and the different forms of using common lands. Both forms of property had in common the impossibility of being disposed of by individual owners, except with royal authorisation. Particularly concerning the tenure and use of common lands, the general rule of inalienability and the possibility of an exception authorised by the monarch had their roots in medieval legal philosophy. Traditionally, the basis of the king’s jurisdiction was marked by an unresolved tension in European doctrine between, on the one hand, the natural and customary right of peoples to appoint their magistrates – known in Spanish as foralidad –, and, on the other, the divinely granted right of the princeps to govern his vassals as head of the social body. Similarly, the basis for the tenure or usage of common lands was controversial, varying between a mere tutelary power of the king to administer the territories under his jurisdiction and actual ownership derived from the right of conquest. Therefore, conflicts between different subjects (towns, their councils, the Crown, landowners, and the towns’ inhabitants) were an inexhaustible source of debate for peninsular jurists for centuries.
The historiography focusing on common lands in the Basque region has been mainly interested in the process of its privatisation, which began in the late 18th century and lasted until the late 19th century. The most frequently voiced justification for this process was the alleged unproductiveness of common lands. However, much less work has been done on the functioning of the commons during their period of stability. This project aims to understand how local societies understood the commons iin the border between Navarra and Gipuzkoa, and to what extent the situation in this very particular jurisdictional frontier space could influence this concept. To this end, my main source are the briefs of lawsuits that took place in the region, referring to conflicts concerning jurisdiction of common lands in the border towns between Navarra and Gipuzkoa/Guipúzcoa.
Image: Curso del Rio Bidasoa comprendido entre Fuenterrabía y Behobia, 1609, Archivo General de Simancas (Spain)