Central Courts in Early Modern Europe and the Americas [1 ed.] 9783428580330, 9783428180332

Citation preview

Comparative Studies in Continental and Anglo-American Legal History Vergleichende Untersuchungen zur kontinentaleuropäischen und anglo-amerikanischen Rechtsgeschichte

Band 34

Central Courts in Early Modern Europe and the Americas Edited by A. M. Godfrey and C. H. van Rhee

Duncker & Humblot · Berlin

Central Courts in Early Modern Europe and the Americas

Comparative Studies in Continental and Anglo-American Legal History Vergleichende Untersuchungen zur kontinentaleuropäischen und anglo-amerikanischen Rechtsgeschichte

Herausgegeben von Richard Helmholz, Knut Wolfgang Nörr und Reinhard Zimmermann

Band 34

Central Courts in Early Modern Europe and the Americas

Edited by A. M. Godfrey and C. H. van Rhee

Duncker & Humblot · Berlin

Printed with the support of the Gerda Henkel Stiftung, Düsseldorf

Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar.

Alle Rechte vorbehalten

© 2020 Duncker & Humblot GmbH, Berlin

Fremddatenübernahme: L101 Mediengestaltung, Fürstenwalde Druck: CPI buchbücher.de gmbh, Birkach Printed in Germany ISSN 0935-1167 ISBN 978-3-428-18033-2 (Print) ISBN 978-3-428-58033-0(E-Book) Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706

Internet: http://www.duncker-humblot.de

Preface This book is dedicated to the memory of W. David H. Sellar (1941–2019), the most distinguished Scottish legal historian of his generation. Both editors of this volume were his students, and were first introduced to each other by him during their doctoral research. He did much to inspire their interest in the history of central courts, and his analysis of the foundation of the College of Justice in Scotland has influenced subsequent interpretations through its stress on a comparative European perspective, and its focus on jurisdiction. He was delighted to meet the Working Group for this volume on the occasion of its meeting in Edinburgh in June 2014, and he followed the progress of the project with interest. David Sellar was the founding Director of the Centre for Legal History at Edinburgh University, established in 1991. His distinguished contribution to legal history was marked by the award of an honorary doctorate of laws by the University of Glasgow in 2016. Born in Glasgow, educated at the universities of Oxford and Edinburgh, he spent his academic career at the Faculty of Law of Edinburgh University, where he taught Scottish and European legal history and Scots private law from 1969 until his retirement, and thereafter as an honorary research fellow. After retirement from the university, he served from 2008–2014 as Lord Lyon King of Arms, one of Scotland’s most ancient offices of state. He was known internationally as a historian of Scots law, was a regular participant in the British Legal History Conference, and participated in several projects of the Société Jean Bodin pour L’Histoire Comparative des Institutions: on actes à cause de mort, on l’assistance dans la résolution des conflits, and on la coutume. He was also an invited member of four research projects sponsored by the Gerda Henkel Stiftung which have published volumes in the Comparative Studies in Continental and AngloAmerican Legal History series – on unjust enrichment, negligence, third party rights and presumptions (1995, 2001, 2008, 2009). In collaboration with Professor R. H. Helmholz, in 2009 he co-edited one of the books in this series, The Law of Presumptions: Essays in Comparative Legal History. The editors of the present volume owe him a debt of gratitude beyond measure, and dedicate this volume to his memory with affection and respect. The editors also wish to record their gratitude to the late Professor K. W. Nörr, without whose encouragement and support the Working Group for this volume would never have been established, and to the Gerda Henkel Stiftung

6 Preface

for its patient support of what has been a long-running project. Thanks are also due to the University of Maastricht, and the Signet Library, Edinburgh, for hosting the two meetings of the Working Group. Special thanks are owed to the former Dean of the Faculty of Advocates, James Wolffe, Q. C., currently Lord Advocate of Scotland, who kindly met with the Working Group and permitted it to make a conducted tour of the Advocates Library to complement its tour of Parliament Hall and the Signet Library during its Edinburgh meeting. It was an inspiration for the Working Group to meet in these surroundings, within the very precincts of the Scottish College of Justice, both a subject of historical enquiry for the project, and the contemporary site of a busy working court. Glasgow/Maastricht, November 2020

Mark Godfrey Remco van Rhee

Table of Contents A. M. Godfrey and C. H. van Rhee Introduction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 K. Salonen The Sacra Romana Rota  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 N. G. Jones The English Court of Chancery  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 W. Prest An ‘ordinary court of justice’? The appellate jurisdiction of the House of Lords, 1689–1760  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 A. M. Godfrey The College of Justice, Court of Session and Privy Council in sixteenth century Scotland, 1532–1603  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 J. D. Ford Adjudication in the Scottish Parliament, 1532–1707  . . . . . . . . . . . . . . . . . . . . 189 P. Oestmann The highest courts of the Holy Roman Empire: Imperial Chamber Court and Imperial Aulic Council  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 D. Tamm The King in Council and the Supreme Court in Denmark, 1537–1660  . . . . . 287 M. Korpiola The Svea Court of Appeal: A basis for good governance and justice in the early modern Swedish realm, 1614–1800  . . . . . . . . . . . . . . . . . . . . . . . . . . 305 H. Pihlajamäki The Appeals Court of Dorpat in the seventeenth century: Establishing Swedish judiciary overseas  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 A. Wijffels The supreme judicature in the Habsburg Netherlands  . . . . . . . . . . . . . . . . . . . 377 C. H. van Rhee Supreme judicature in Holland, Zeeland and West-Friesland after the Dutch Revolt, 1582–1795  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403

8

Table of Contents

D. Freda The Sacro Regio Consiglio of Naples, 15th–17th century  . . . . . . . . . . . . . . . . . 419 I. Czeguhn The history of the supreme courts in the Iberian peninsulafrom the 14th century to the 18th century  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 L. López Valencia The Royal and Supreme Council of the Indies: the Supreme Court of New Spain  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 463 S. Dauchy The Sovereign Council of New France, 1663–1760  . . . . . . . . . . . . . . . . . . . . 517 W. H. Bryson The General Court of Virginia, 1619–1776  . . . . . . . . . . . . . . . . . . . . . . . . . . . 531 List of contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543

A. M. GODFREY AND C. H. VAN RHEE

Introduction 1. Central courts This volume is intended as a contribution to the comparative history of central courts focused principally on their development in early modern Europe, but including aspects of their development relating to European settlement in America. We focus in particular on the formative period in the development of such courts (between roughly the fifteenth and eighteenth centuries), tracing their origins and especially their jurisdiction, and how this became accepted and embedded within the existing structures of jurisdiction and arrangements of courts in individual states (or empires). The book thereby hopes to illuminate the development of the state through examining the changing institutional framework of jurisdiction within which the adjudication of legal disputes developed in the early modern period. This also involves enquiring into the wider role of legal institutions in the development of governance and more particularly in the administration of justice, and the ways in which the legal concept of jurisdiction informed these developments. The concept of a central court provides a focus for each contribution to this book. It relates to courts which were in some sense part of the structure of central governance in a given territory, central governance typically embracing institutions with authority over the whole of a state or otherwise politically connected territory, and associated with government by a ruler with authority over the whole of such territory. The jurisdiction of such courts would therefore be potentially co-extensive with that territory, rather than restricted to a particular locality (though in practice particular localities might nevertheless be exempted from the wider general jurisdiction of a central court or lie beyond it for other reasons). It might usually (though not necessarily) possess a general superior jurisdiction, which might enable it to exercise an appellate jurisdiction over other courts within the territory, as well as some form of first instance jurisdiction. Some of the central courts under discussion were new creations, whilst others developed more organically from existing institutions – the Dutch High Council or Hoge Raad, for example, as well as the Reichskammergericht and the early fifteenth century Scottish ‘Session’ were new creations (in 1582, 1495 and 1426 respectively), whilst the Great Council of Malines (from its reinstatement in 1504), the

10

A. M. Godfrey and C. H. van Rhee

Reichshofrat and the Scottish College of Justice (founded in 1532 but reconstituting the existing judicial Session of the King’s Council) were institutions with a long pre-history. Many of the contributions to this book discuss the way that royal councils could give rise to new central courts, when the judicial role of such royal councils evolved from a peripheral or restricted role into a form of superior regular jurisdiction, existing alongside the more general role such councils continued to play in politics and government. Sometimes this evolution might introduce a central court with general competence into a territory for the first time, as with the sixteenth-century Scottish ‘Session’, though sometimes it might involve the development of a new but supplementary generation of central courts into a system of courts already structured around central jurisdiction, as with the development of Chancery and Star Chamber in sixteenth-century England alongside the earlier generation of central courts of King’s Bench, Common Pleas and Exchequer established in the thirteenth century. A particular focus of the book is on the relationship between such new courts and the more political, governmental privy councils (including in some contexts parliaments or other forms of central political assembly) which were often in some senses their parent bodies, or at least from whom they may have separated institutionally as part of what R. K. Hannay termed a ‘differentiating process’.1 Hannay’s analysis was made in relation to the Scottish King’s Council, whose adjudicative functions were gradually organised separately within council business by the end of the fifteenth century (sitting as ‘the Session’), and finally transferred to a distinctive judicial body in the sixteenth century (the College of Justice). Such differentiation of function was itself a wider feature of governmental development, visible, for example, within the complex Spanish governmental system of ‘polysynody’, in the way the group of councillors on the Council of Castile who heard matters concerning the Indies, meeting as a Consejo de Indias, became autonomous by 1524 as the Royal and Supreme Council of the Indies.2 The more political councils with a general competence in matters of government not only continued to play an essential role in governance after ceding judicial competences to new judicial institutions, but often retained an important residual jurisdiction and judicial role which continued to interact with the new courts. Sometimes, as in the case of the Dutch Republic, new political bodies like the Estates General of the Dutch Republic assumed a 1  R. K. Hannay, On the Antecedents of the College of Justice, in: R. K. Hannay, The College of Justice, Stair Society, Supplementary vol. 1, 1990, ed. H. L. MacQueen, pp.179–215 at 109. For comment see A. M. Godfrey, Civil Justice in Renaissance Scotland. The Origins of a Central Court, Leiden, 2009, pp. 80 and 4, 27, 31. 2  López Valencia in this volume, p. 471.

Introduction11

judicial role from the time of their creation, replicating models from the territories from which they had seceded. The new courts influenced the development of the early modern state through the exercise of superior forms of jurisdiction over other courts, and enhancing their own judicial autonomy from forms of political control. However, this newly focused jurisdiction also had to accommodate itself to other parts of central governance such as privy councils, precisely because they also retained a judicial competence of their own, though not necessarily one which was clearly defined at the outset. In some countries such as England and Scotland there was a need to articulate the jurisdictional relationship not only with privy councils but also with established parliaments which retained their own judicial competence. Indeed, both the English and Scottish parliaments saw a resurgence in judicial activity in the seventeenth century, alongside their competence as legislative bodies. An important wider theme to be explored alongside the charting of institutional developments is the role of jurisdictional change – how and why the jurisdiction of both existing and new institutions changed or developed. This can shed light on the relationship between the development of central courts and the role played by law and the administration of justice in governance. Instances or patterns of contested jurisdiction can provide crucial insights into this theme. Where it has proved feasible, therefore, some individual contributions have been based methodologically upon research in the litigation records of such courts in the late medieval and early modern periods, together with ordinances and statutes affecting their constitution.3 The chronological scope of the book is focused on the early modern period. As touched on already, some countries such as England developed central courts as early as the thirteenth century, but this was the exception. Others, such as Scotland, had no such distinct and separate central court in the medieval period but did rely on the general institution of a parliament to provide a judicial forum exercising central jurisdiction. In this sense Scotland possessed a kind of central court, in that parliament conducted judicial business and was technically constituted as a court of law. But a new pattern emerged between the fifteenth and the seventeenth centuries, as European states tended to develop a new generation of central law courts, distinct from political bodies with a judicial competence. This followed a variety of path3  J. H. Baker (ed.), Judicial Records, Law Reports, and the Growth of Case Law, Comparative Studies in Continental and Anglo-American Legal History, vol. 5, Berlin, 1989, and A. Wijffels (ed.), Case Law in the Making. The Techniques and Methods of Judicial Records and Law Reports, Comparative Studies in Continental and Anglo-American Legal History, vol. 17, Berlin, 1997 are valuable guides to the archival sources of the superior courts of law.

12

A. M. Godfrey and C. H. van Rhee

ways, but was often based on the judicial role of royal chancellors, and the royal councils they presided over on behalf of a sovereign ruler, supported by the administrative office of a royal chancery.4 As we have seen, this new impetus could be evident even in polities which already possessed established central courts, since newer tribunals nevertheless developed out of the extraordinary jurisdiction of royal councils which had hitherto sat outside ordinary legal processes. In other cases, a wider range of interests shaped developments through legislative intervention and the statutory foundation of a new central court, rather than merely through the evolution of royal jurisdiction in the hands of a monarch’s councillors. Comparable developments were widespread across Europe, including in Spain, France, Italy, the Low Countries, Denmark, Sweden, England and Scotland as well as the Holy Roman Empire (at the supranational level as well as in individual territories within the empire). They were also evident in the role of the Sacra Rota Romana as a central court for the universal Church, and an influential model for secular jurisdictions, not least through dissemination in early modern Europe of published editions of its decisiones. Indeed, there seems to be a pattern of institutional development across Europe which stimulated an enhancement in the provision of central justice. This pattern of development not only raises questions about the comparative role of central jurisdiction, judicial institutions and royal councils within European states but also about the transplant of central judicial models in the development of colonial governance, or in newly annexed territories gained by conquest, and the need to define the jurisdictional relationship between colonised or conquered territories and the state or empire to which they belonged. Central courts constituted a new form of authority with the potential to unify the structure of jurisdiction within states, particularly if asserting an appellate role over other courts, and could therefore play a crucial part in defining the structure of authority within a state, as well as stimulating the development of the law which litigants sought to be applied when they turned to central jurisdiction. The development of central courts in European legal history can be seen as a crucial part of the transition from the medieval to the modern state, reflecting the disintegration of a medieval model of governance based on the general competence of royal councils, and the way that central judicial bodies originally associated with royal councils were coming to function autonomously from government. It also reflected a strengthening of the very idea of central authority within individual ‘states’ in the late medieval and early 4  B. Guenée, States and Rulers in Later Medieval Europe, Oxford, 1985, p. 125 (originally published as L’Occident aux xive et xve siècles, 1st ed., Paris, 1971, 2nd ed., Paris, 1981); J. R. Strayer, On the Medieval Origins of the Modern State, Princeton, 1970, p. 98.

Introduction13

modern periods. This affected the role of representative assemblies, central administration, bureaucracy and government, law making, methods of raising revenue, and the financing of diplomacy and war. In the work of historians, this has led to an emphasis on the fourteenth and fifteenth centuries in particular as a ‘transitional period’ when the medieval state gradually gave way to the modern.5 The development of central courts is a feature of this transition. It is also important for the investigation of many other questions, including the role of central courts in importing the influence of the ‘learned laws’ (Roman and canon law) into the judicial development of municipal law (local or national) in the early modern period. Why such courts developed is a crucial question which requires wider attention in its own right. Was enhancement in the provision of central justice a response to demand from litigants, or was it a refashioning of judicial institutions to better embody contemporary perceptions of how authority should be exercised in a state, especially the authority of a sovereign ruler? The circumstances of individual states are likely to vary significantly, but an understanding of the nature of judicial development and the specific form jurisdictional change took may help illuminate the range of possible answers. The new central law courts in question have long been studied in their national or local context,6 or touched on in the context of a broader historical synthesis.7 From a legal perspective, a number of specialised studies have made important contributions.8 The contributions to this book seek specifically to explore the way that central courts may have embodied a fundamen5  Guenée,

States and Rulers in Later Medieval Europe, pp. 18, 20. example, A. Wijffels/C. H. van Rhee (eds.), European Supreme Courts: A Portrait through History, London, 2013; J. Gilissen et al., Consilium Magnum (1473– 1973). Herdenking van de 500e verjaardag van de oprichting van het Parlement en de Grote Raad van Mechelen. Colloquium, Brussels, Malines, 1977; I. Scheurmann (ed.), Frieden durch Recht: Das Reichskammergericht von 1495 bis 1806, Mainz, 1994; M. Sbriccoli/A. Bettoni (eds.), Grandi Tribunali e Rote nell’Italia di antico regimine, Milan, 1993; C. H. van Rhee, Litigation and Legislation: Civil Procedure at First Instance in the Great Council for the Netherlands in Malines (1522–1559), Brussels, 1997; Godfrey, Civil Justice in Renaissance Scotland; Mia Korpiola et al., The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Institutet för Rättshistorisk Forskning, Stockholm, 2014. 7  Guenée, States and Rulers in Later Medieval Europe. 8  B. Diestelkamp (ed.), Oberste Gerichtsbarkeit und Zentrale Gewalt, Quellen und Forschungen zur Höchsten Gerichtsbarkeit im Alten Reich, vol. 29, Cologne, 1996; L. Auer/W. Ogris/E. Ortlieb (eds.), Höchstgerichte in Europa. Baustein frühneuzeit­ licher Rechtsordnungen, Quellen und Forschungen zur Höchsten Gerichtsbarkeit im Alten Reich, vol. 53, Cologne, 2007; I. Czeguhn et al. (eds.), Die Höchstgerichtsbarkeit im Zeitalter Karls V, Baden-Baden, 2011; Ignacio Czeguhn/José Antonio López Nevot/Antonio Sánchez Aranda (eds.), Control of Supreme Courts in Early Modern Europe, Schriften zur Rechtsgeschichte (RG), vol. 181, Berlin, 2018. 6  For

14

A. M. Godfrey and C. H. van Rhee

tal shift in the structure of jurisdiction of European states in the early modern period, or helped shape the structure of the governance of annexed or colonised territories. The detection of such a jurisdictional shift is important in terms of illuminating the evolution of structures of legal authority, but it may also point to a deeper social change in how authority was exercised and perceived in early modern societies. It is hoped that the contributions will help explore how jurisdiction provides a measure of such changes. Clearly the principal feature or trend of the jurisdictional shift in question was centralisation, and the enhancement of the role of central state institutions in governance. The book is therefore mainly directed towards understanding in what ways central jurisdiction developed within individual legal systems, and whether and, if so, how this was resisted or exploited by litigants or courts exercising local or other privileged forms of jurisdiction. A better understanding of the development of central courts in the early modern period will enable wider questions to be further explored, which are noted below even though beyond the scope of this book: a) to what extent did the development of central courts promote the role of civil justice as a way of resolving disputes, and increase the attractiveness of recourse to law courts and the use of judicial remedies generally? b) what were the implications of the promotion of public justice through law courts at the expense of private dispute settlement in terms of general patterns of dispute resolution? c) in what ways did these developments contribute to the differentiation of criminal justice from civil justice, and cause the prosecution of crime to become more exclusively a responsibility of the state? d) what effects did the Reformation have on jurisdictional structures, and did the role of central courts affect how spiritual jurisdiction became absorbed into or replaced by secular jurisdiction? e) in what ways did such developments stimulate wider changes in the legal order beyond the world of dispute resolution? f) to what extent was the institutional development of central courts matched by any intellectual shift in how legal authority was understood, and how it should be considered to apply to and underpin the various sources of law which such courts drew upon in the early modern period? g) to what extent did these developments prompt juristic attempts to construct new models of authority which assimilated and explained the respective roles of local legislation, customs, court decrees and juristic treatises, alongside Roman law, canon law and the wider ius commune?

Introduction15

What were the implications of this for the intellectual development of theories of sovereignty and the state? The contributions to this book seek to give an introductory account of the institutional history of some of the main examples of European central courts in the period between the fifteenth and eighteenth centuries,9 thus providing a point of reference for comparative study of the historical development of European central courts. As touched on already, it is also hoped to describe the jurisdictional context in which individual central courts developed, including other courts and jurisdictions within the same polity, and their role in civil justice. Above all, it is hoped to explore the relationship between central authority and jurisdictional change in the late medieval and early modern period. Particular areas of interest include how the role of new central courts related to and impacted upon existing jurisdictions and courts, what procedures existed to allow interaction between courts, in what ways the central court interfered with, developed and exercised a supervisory role over the functions of other courts, and how this contributed to establishing recognition of a jurisdictional hierarchy. For example, could such courts transfer cases from other courts on the basis of claims to superior jurisdiction? Was there a competence to review decrees of other courts, and was this formalised as an appeal, or as some other form of remedy? Furthermore, it may be asked whether the jurisdiction or competence of the new central court was technically restricted, what the nature of any such restriction was, how the restriction had developed (for example, custom, statute, the practice of individual courts), how those restrictions were enforced or given effect, and whether and how such restrictions were removed or overcome. When a jurisdictional restriction was overcome, was it by explicit abolition of the restriction, or through the development of new alternative forms of remedy? How did the remedies available to courts enable disputes over such restricted matters to be approached, for example in relation to specific categories of jurisdiction such as the determination of title to immoveable property (i. e. land)? More broadly, it may be asked how particular remedies granted by the new central courts may have helped extend their role and establish their jurisdiction, and whether remedies were developed so as to support an extension of the authority of central courts to determine disputes involving private law rights or in validating, controlling or quashing the jurisdiction or decisions of other courts. Finally, did developments in the exercise of jurisdiction and in remedies result in statements or declarations by the new central court or other bodies of its superior competence as a court, reflecting a new understanding 9  Regrettably it was not possible to include a contribution on the Parlement de Paris.

16

A. M. Godfrey and C. H. van Rhee

of the jurisdictional structure of the ‘state’ in question? For example, did certain areas of jurisdiction come to be declared as exclusively within the competence of the central court and, if not, how was the interaction between central courts and other courts and governmental bodies shaped and developed? The focus will be on the role that the development of central jurisdiction and civil justice played in changing patterns of dispute resolution in the polity in question. The role of courts of justice as part of governance has often been examined from the perspective of criminal justice and public order. But until the seventeenth century, most of the business of the administration of justice related primarily to the resolution of private disputes, and not to the prosecution of crime simply to enforce the criminal law. Yet the role of civil justice and central jurisdiction in the development of the early modern state has been relatively unexplored. The interaction of civil justice with private forms of dispute resolution lies beyond the scope of this book. However, it may help illuminate the extent to which the new central courts promoted civil justice in such a way as to successfully undermine such informal and private methods, and instead to promote public order and public justice exercised by state institutions. It may help understand ways in which such courts promoted formal models of authority, influencing the degree of authority to be ascribed to rights derived from written court decrees and written documents generally, including land titles. It may be asked to what extent central courts promoted a culture in which the stability of dispute settlement depended increasingly on legal rights as tested in adjudication, and upon the services of an educated lay profession of lawyers. This book hopes to enhance comparative perspectives based on the insights flowing from recent work by the authors of the contributions, especially those whose research methodology has shed new light on central courts in their national context through study of litigation and court records preserved only in archival sources. It is hoped that it will advance our understanding of the role of jurisdiction in the development of legal institutions and the modern state. Some preliminary observations arising from an overview of the book as a whole follow, treating first the theme of jurisdiction, and secondly the relationship between the newer central courts and the residual judicial role of parliaments or privy councils.

Introduction17

2. Jurisdiction (a) Defining central court jurisdiction The new courts came into being in a variety of ways, ranging from gradual evolution of existing judicial institutions to new foundations expressly established by legislation. The competence of such courts was often implicitly unbounded, and their jurisdiction given little detailed definition. For example, the Sacra Romana Rota developed its role only rather gradually. Pope Gregory VII had reserved all causae maiores to the papal jurisdiction in 1075, but the Sacra Romana Rota only emerged in the twelfth century and its jurisdiction was only formally defined in 1331 in the constitution Ratio iuris. Even at that point, the jurisdiction of the Rota continued to expand up to the end of the fifteenth century.10 The English Court of Chancery also evolved from the fifteenth century onwards, rather than being specifically founded in a given moment as a new court, and ‘appears to have emerged from delegation to the chancellor of the handling of petitions to the king and council for justice outside the ordinary system’.11 The Danish King’s Council gradually transformed by 1660 from having been ‘a peer’s court for the nobility into being by the end of the period the supreme appellate court’ for the whole realm.12 But some of the new generation of courts were fresh departures established by legislative act and with a wholly new constitution. In the territories of the Holy Roman Empire, the Reichskammergericht, newly created in 1495, ‘marked a true caesura’,13 notwithstanding some aspects of continuity with the former Royal Chamber Court, the Königliches Kammergericht, and the same is true for the Dutch Hoge Raad founded in 1582.14 The Danish Supreme Court, though inheriting the jurisdiction of an existing institution, was founded by a statute specifically for ‘the administration of the Supreme Court in Denmark’ in 1661, superseding the judicial role of the Danish King’s Council.15 The statute set out matters which included the composition of the court, and the extent of its authority, for example the provision that no appeal from its decisions would be permitted. But even establishment through legislation did not necessarily promise more than an ill-defined declaratory 10  Salonen

in this volume, pp. 40–43. in this volume, p. 74. 12  Tamm in this volume, p. 288. 13  Oestmann in this volume, p. 234. 14  Van Rhee in this volume, p. 405. 15  Tamm in this volume, p. 288; J. P. Christensen/J. Erichsen/D. Tamm, The Supreme Court of Denmark, Copenhagen, 2015, p. 92. 11  Jones

18

A. M. Godfrey and C. H. van Rhee

expression of jurisdiction in the broadest terms. The Scottish College of Justice was established by parliamentary statute in 1532, inheriting the ordinary civil jurisdiction of the King’s Council (sitting as the ‘Session’). Its competence was simply but very generally defined as ‘for the doing and administracioune of justice in all civile actiounes’ (‘civil’ actions being demarcated from those belonging to the ‘spiritual’ jurisdiction of the church courts).16 In Sweden such indeterminacy is also apparent. The Svea Court of Appeal was a new foundation, but ‘the 1614 Ordinance that had established the Court had left the precise relationship between Court and King unregulated in various cases’.17 For the Hoge Raad of the United Provinces, it is remarked that ‘the legislation governing the High Council is relatively vague about its subject-matter jurisdiction, something that had also been the case in legislation governing the Great Council of Malines’.18 (b) Jurisdictional change conditioned by wider political context The political context for these new courts could be very different. Generally a central court might be seen as providing impetus towards centralisation and jurisdictional harmonisation, or even jurisdictional unification. However, in some contexts wider political and constitutional developments could create a contrary dynamic towards fragmentation as much as unification of jurisdiction. In the Low Countries, for example, this was because ‘the unifying role of the Great Council disappeared’19 as a consequence of the separation of the United Provinces from the Habsburg Netherlands in the south. As with the Habsburg Netherlands, territorial readjustments might also occur through war and direct conquest – as Alain Wijffels notes, ‘[d]uring the seventeenth century, especially during Louis XIV’s wars, whole parts of the southern edge of the Habsburg Netherlands, after changing fortunes of war, were lost to France’.20 This had jurisdictional consequences for the lost territories of Flanders, with Louis XIV establishing a sovereign court (cour souveraine) in Tournai in 1668, raised to the status of a parlement in 1686.21

16  The Records of the Parliaments of Scotland to 1707, ed. by K. M. Brown et al., St Andrews, 2007–2016 (1532/6). 17  Korpiola in this volume, p. 311. 18  Van Rhee in this volume, p. 407. 19  Van Rhee in this volume, p. 405. 20  Wijffels in this volume, pp. 386–387. 21  A. Wijffels, The Parlement of Flanders, in: A. Wijffels/C. H. van Rhee (eds.), European Supreme Courts. A Portrait Through History, London, 2013, pp. 72–73.

Introduction19

(c) Shaping of jurisdiction through innovations in procedure and remedies Whilst a founding statute might set out the extent of jurisdiction, more commonly the boundaries and limits were shaped by individual rulings and the development of remedies and procedure which avoided general declarations or at least clouded perceptions of the reality of jurisdictional change. After all, where the newer form of central court developed against the background of an older existing jurisdiction, the bounds of pre-existing jurisdiction naturally helped shape the extent of the newer one. Sometimes much of the older jurisdiction was given up or transferred, the remainder persisting but becoming merely residual or exceptional, as with the Scottish Privy Council (and arguably the Scottish Parliament) following the foundation of the College of Justice in 1532. In other cases the new and the old continued as jurisdictions operating in parallel, as in England, where Chancery complemented rather than supplanted the older common law central courts. (d) Importance of appeals in developing supreme jurisdiction The development of a central court with a potentially unbounded jurisdiction did not necessarily lead to its exercising that jurisdiction in full over other courts. It still required to be integrated into the pre-existing structures of jurisdiction through legal processes and linked within the mechanics of procedure. Central courts could also attract litigation through their own first instance jurisdiction, where this existed. However, the most powerful mechanism for wider integration in the legal system was perhaps that of appeal, though attention should also be paid to procedures of advocation, which resulted in the transfer of a case yet to be decided to the central court from its original forum. Typically, however, such courts were able to assert their authority over other courts by developing their appellate role, and this development is evident in particular jurisdictions. Although only a minority of the cases before the Danish King’s Council were appeal cases up to 1600, for example, after that time the number increased to at least half of all cases.22 The consequences could be felt throughout the legal system in terms of formalising a judicial hierarchy. As Mia Korpiola observes of Sweden, ‘one of the major outcomes of the establishing of the Court [of Appeal] was the cementing of an instance order’.23 For the Holy Roman Empire, Peter Oestmann notes that ‘[a]ppeal from the territories to the courts of the empire clarified jurisdictional relationships … There were often conflicts about 22  Tamm

in this volume, p. 300. in this volume, p. 317.

23  Korpiola

20

A. M. Godfrey and C. H. van Rhee

whether all territorial stages of appeal (within the jurisdiction of the territories, as opposed to the empire) were exhausted or not’.24 (e) General or supplementary models of central jurisdiction Another feature of central courts is whether they exercised a general or supplementary form of jurisdiction. General models tended to integrate medieval judicial process with the new jurisdiction, whereas supplementary models tended to operate institutionally in parallel, which raises questions about concurrent jurisdiction, and superiority of jurisdiction, as well as defining when intervention in general legal process by the supplementary jurisdiction was permitted. In Scotland, the foundation of the College of Justice in 1532 was based on a general model of jurisdiction, reflecting how since the late fifteenth century ‘[t]he Session moved from possessing a form of extraordinary residual jurisdiction, with limited categories of competence, to exercising an ordinary jurisdiction, with a general competence’.25 By contrast, the English Chancery’s jurisdiction was formally supplementary, Neil Jones noting how ‘[p]recisely concurrent jurisdiction between the Chancery and the courts of common law was in one sense in principle impossible, in that Chancery was constrained by the statutes of due process to act only where the common law was deficient’.26 (f) Contesting and declining jurisdiction A point of interest in studying litigation before central courts during their development is whether evidence of the contesting of jurisdiction is apparent. This can help indicate whether the development of the central court created any potential friction between the range of jurisdictions on offer to litigants, and court pleadings or decisions in such cases can illuminate the perceived implications of a central court for rules of jurisdiction as understood at the time. When a central court developed a supplementary jurisdiction, the contesting of the jurisdictional boundaries which necessarily arose might be expected. But even when a central court adopted a general model of jurisdiction, there might still be a formative period during which the general nature of its jurisdiction was not yet fully defined or else was not yet accepted by other subordinate jurisdictions.

24  Oestmann

in this volume, p. 248. in this volume, p. 173. 26  Jones in this volume, p. 103. 25  Godfrey

Introduction21

In Scotland, this tension is visible in the pleading of declinatory exceptions in the early sixteenth century. This occurred during the transition from the older model of supplementary jurisdiction exercised by the King’s Council to the emerging general jurisdiction which seems to have been established by the time of the foundation of the College of Justice in 1532. And even after 1532, the College of Justice gradually gave more detailed definition to this general jurisdiction and demarcated parts of it as exclusive rather than merely concurrent with other courts.27 In the Holy Roman Empire, the tension was visible between the territorial jurisdiction of individual states and imperial jurisdiction (whether in the Reichskammergericht or Reichshofrat), in that whilst not denying the general jurisdiction in question, nevertheless ‘defendants often brought exceptiones fori declinatoriae, by which they denied the imperial courts’ jurisdiction for their particular case’.28 A similar tension between general central jurisdiction and superior territorial jurisdiction is evident in the Dutch Republic, where the Hoge Raad in Holland and Zeeland experienced jurisdictional conflict with the territorial Court of Holland, for example in possessory actions over immovables. As Remco van Rhee notes, ‘[s]uch actions were traditionally the prerogative of the highest provincial courts … Now both the Court of Holland and the High Council claimed to be competent to entertain these matters’.29 (g) Jurisdictional complexity and institutional competition Even when a judicial hierarchy was apparent, as in the Kingdom of Naples, concurrency of jurisdiction could still result in jurisdictional conflict, as between the Sacro Regio Consiglio and the Regia Camera della Sommaria, and between the Sacro Regio Consiglio and the Consiglio Collaterale. As Dolores Freda notes, ‘the Consiglio Collaterale tended to become a sort of superior court of appeal for all the decisions of the Sacro Regio Consiglio − despite the formal supremacy and independence of the latter from any other court − and of all the other great tribunals of the Kingdom’.30 In Castile, Ignacio Czeguhn notes how ‘from 1432, the Audiencia was constituted as the only appeals court for cases of civil law. But soon, it would compete with the Consejo Real’.31 In England, though Chancery was a supplementary jurisdiction operating alongside the common law courts, assertion of jurisdiction by 27  Godfrey in this volume, p. 174; Godfrey, Civil Justice in Renaissance Scotland, p. 317. 28  Oestmann in this volume, p. 263. 29  Van Rhee in this volume, p. 407. 30  Freda in this volume, p. 429. 31  Czeguhn in this volume, p. 448.

22

A. M. Godfrey and C. H. van Rhee

the Chancery was nevertheless ‘apparent in the issuing of common injunctions after judgment at law, which caused contention, to varying degrees of intensity, for much of the early modern period’.32 A further context which brought jurisdictional complexity with it was the creation of an absolutely new court such as the Swedish Appeals Court of Dorpat in Livonia in 1630. As Heikki Pihlajamäki observes, ‘[t]he founding of the Dorpat Court of Appeal was a conscious step by the Swedish Crown to establish its authority in the new over-seas province’, but the consequential need to clarify the scope of local manorial and seigneurial jurisdiction, amongst other things, contributed to continuous dispute about the correct judicial forum.33 (h) Limits on jurisdiction One of the most striking features of the development of central courts is that the attainment of a supreme jurisdiction by such courts could be severely constrained in practice by external limits placed on its applicability. The most prominent example of this is perhaps the Holy Roman Empire, where the imperial level of jurisdiction existed in parallel with that of the individual territories of the empire. Although the imperial courts possessed final appellate civil jurisdiction, this was extensively limited in practice by some territories simply being exempted from it, and many more being in possession of the privilege against appeals (privilegium de non appellando). Such privileges against appeals barred appeal to the Reichshofrat just as much as to the Reichskammergericht. However, as Peter Oestmann points out, the inability to take appeals did not preclude other forms of oversight of the territorial courts by the imperial courts, for example in cases of denial of justice or undue delay, or in relation to procedural error. And a consequence of the privilege against appeals was that the rulers in question ‘were obliged to erect a court of appeal in their territory. This territorial appellate court had to follow the Imperial Chamber Court’s procedural principles and procedural maxims’.34 The effect of excluding an appellate imperial jurisdiction was therefore still to some extent to promote overall procedural harmonisation, and the indirect influence of imperial court practice was therefore not excluded. It should be noted that not all central courts experienced this type of ousting of their jurisdiction. Scotland was at the other extreme, for example. There, medieval royal jurisdiction had been extensively limited by grants of ‘regality’ jurisdiction to nobles and religious institutions, blocking the operation of brieves from the royal chancery and court-holding by royal judges 32  Jones

in this volume, p. 110. in this volume, pp. 374; see also pp. 358, 368. 34  Oestmann in this volume, p. 270. 33  Pihlajamäki

Introduction23

over large areas of the kingdom. But the sixteenth-century College of Justice was founded with an unqualified jurisdiction, unconstrained in relation to such franchisal courts, and exercised authority over regalities as much as any other law court.35 (i) Patterns of development and reframing of superior jurisdiction The development of central courts did not necessarily result in a clear acknowledgement of supreme jurisdiction over other courts, particularly when a state with a non-unitary constitutional structure was concerned, be it a confederation like the Holy Roman Empire or the Dutch Republic, or a set of nations united under one royal authority as with the kingdom of England and its jurisdictional relationship with Ireland from the later medieval period until the eighteenth century. In some cases, as well, there could be more than one central court vying for primacy, as already noted in relation to the Neopolitan Sacro Regio Consiglio and the Consiglio Collaterale. In the Holy Roman Empire, the creation of the Reichskammergericht in 1495 put constraints on the influence of the emperor, but after Maximilian I’s reform of the Reichshofrat in 1498 ‘the Aulic Council [i. e. Reichshofrat] turned more and more into a second “highest” court of the empire’, possessing equivalent jurisdiction to the Reichskammergericht. The Reichshofrat was under the direct influence of the emperor, but never established supremacy over the Reichs­kammergericht, though it frequently issued orders (promotoriales) regarding processes subject to undue delay in the Reichskammergericht and demanding acceleration of the processes in issue. A particularly complex situation arose in England after the development of the House of Lords’ appellate jurisdiction in the seventeenth century. This led to a conflict from the 1690s about superiority of jurisdiction between the English and Irish House of Lords in relation to Irish cases. The Irish House of Lords claimed an exclusive jurisdiction to hear Irish appeals, a matter only finally resolved in favour of the English (by then British) House of Lords by legislation in 1720 stating that ‘the House of Lords of Ireland have not, nor of right ought to have, any jurisdiction to judge of, or reverse any judgment … made in any court within the said kingdom’.36

an example, see Godfrey, Civil Justice in Renaissance Scotland, p. 195. S. Tompson, Islands of Law – A Legal History of the British Isles, New York, 2000, p. 51. 35  For

36  Richard

24

A. M. Godfrey and C. H. van Rhee

(j) Central jurisdiction and unlocking the procedural rigidity of medieval legal process One of the reasons for tracing the evolution of the new generation of central courts in the early modern period in terms of jurisdictional change is that such jurisdictional innovation could act as the catalyst for a wider change in the legal system. This could involve not only processes of appeal, and the crystallisation of an ‘instance’ hierarchy recognising a structure of tiers of jurisdiction, but also influence approaches to procedure and remedies across the legal system as a whole. This is particularly the case where the medieval legal system was based on local jurisdiction applying customary law in lay courts without a full concept of appeal, with judgments made by fact-finding lay juries. A central court could bring with it not only jurisdictional and substantive legal harmonisation, but also procedural harmonisation based on the application of the sophisticated principles of Romano-canonical procedure and a correspondingly innovative flexibility in remedies which could be shaped around those principles. This is what occurred in Scotland, for example, where there was a reconceptualisation of the place of central jurisdiction as it shifted from a residual and supplementary role to a general role which gained an increasingly supreme character by the early sixteenth century. This newly powerful jurisdiction operated on the basis of Romano-canonical procedure, previously given general application in the medieval church courts of Scotland, but by the mid-sixteenth century adopted in the main local secular courts too. This also enabled new remedies to develop outside the rigidity of the Scottish medieval common law processes based on brieve (writ) and local inquest, such as the summons for spuilzie (dispossession), based on the canonist actio spolii.37 The Scottish example also shows the new form of central jurisdiction which belonged to the late fifteenth-century King’s Council acting to liberate central judicial institutions from the constraints represented by the earlier and limited medieval parliamentary model of a central court. 3. Central courts, privy councils and parliaments A variety of factors were at play in the emergence of new courts derived from the jurisdiction of royal councils in particular. Naturally, one aspect could be that a royal council tended to sit outside the ordinary procedures of the law and, being in more immediate proximity to the authority of the ruler, tended to attract supplicants who sought justice beyond the scope of ordinary remedies. Where this approach is in evidence, it often led to an undue burden 37  Godfrey,

Civil Justice in Renaissance Scotland, pp. 239–241.

Introduction25

of judicial business on such councils, which stimulated the creation of new institutions to relieve the council of that burden. However, the hiving off of judicial work did not necessarily remove residual jurisdiction from the royal council in question, let alone abolish it. The result is that assessing the jurisdiction of any new central court has to take into account its relationship with the residual jurisdiction of any royal council or equivalent institution. Even where central courts were inaugurated by special legislative enactments conferring jurisdiction, generally no provision was made to expressly remove jurisdiction from predecessor or parent bodies, and so privy councils and parliamentary assemblies generally retained an often ill-defined and potentially powerful judicial competence. Jurisdictional change therefore tended not to involve formal transfer (or surrender) of jurisdiction. The position of the parliaments of England and Scotland illustrates this, since both were able to revive judicial roles in the seventeenth century, despite the highly developed system of courts with ordinary jurisdiction – including central courts – which had developed long before.38 When jurisdiction remained vested in such a body, however latent, there was always potential for it to be revived under pressure from litigants if circumstances otherwise facilitated this. And as the newer central courts embedded the kind of extraordinary supplementary justice associated especially with royal councils into structures of ordinary jurisdiction, the capacity to intervene on equitable grounds in such processes was liable to be displaced and find a new or revived expression in such residual bodies. Where possible, the individual contributions to this book seek to reframe the focus on central jurisdiction so as to set the role of newer central courts alongside the wider context of residual central jurisdiction belonging to privy councils and parliaments. (a) Relieving the burden of judicial work on royal councils In Sweden, Mia Korpiola observes that ‘[t]he legal complaints and supplications that in 1612 had burdened the Royal Chancery so that they had been entrusted to a specially nominated royal secretary had disappeared by 1618. Obviously, the Svea Court had relieved the Chancery of most justicerelated matters’.39 In the early sixteenth century in the Habsburg Netherlands, a similar problem of ordinary litigation dominating privy council proceedings is evident from ordinances in 1517, 1531 and 1540.40 Towards the end of the century Philip II of Spain encountered the same issue, and propos38  Ford

and Prest in this volume. in this volume, p. 310. 40  Wijffels in this volume, pp. 390. 39  Korpiola

26

A. M. Godfrey and C. H. van Rhee

als in 1598 sought to relieve his council from the burden of judicial work.41 In Scotland, the pattern materialised at two periods. First, in the early fifteenth century it seems that the burdening of Parliament with judicial business led to the creation of the first separate judicial ‘sessions’ outside the ordinary court system but directly regulated by Parliament. Second, once the King’s Council had broadened its judicial role by the early sixteenth century, in the form of the ‘Session’, the foundation of the College of Justice represented a separation of the ordinary judicial functions of the Council from the business of what became thereafter a privy council with only residual jurisdiction. This pattern was not universal, since differences in governance arrangements released different dynamics as central courts developed. Indeed, in the case of New France the inverse process was at work. A council with general governmental authority – the Sovereign Council of Quebec – saw its political role pass to other institutions entirely, leaving the rump of judicial work as its primary responsibility. From the 1660s the role of the Intendant gained in importance at the expense of the Council, and ‘in the 1670’s, a refocusing of the Sovereign Council on its judicial prerogatives as an appellate court can clearly be observed’.42 In other types of colonial situation where governance was too newly established and small-scale to have witnessed differentiation of judicial and legislative functions, we find little sign of such dynamics. Colonial Virginia, for example, suddenly ceased to be a private corporation constituted by royal charter in 1624, and was formally brought under direct royal authority. Its courts became royal courts, but accompanying jurisdictional structures were built around a very limited number of governmental institutions. Hamilton Bryson notes the appellate judicial role of the legislature in Virginia, for example, observing that ‘from its beginning in 1619, the General Assembly, the legislature of Virginia, had judicial sessions’. More­ over, the first instance General Court of Virginia was itself ‘the Virginia equivalent in this respect of the European and British royal privy councils’, since it was constituted by members of the Council of State of Virginia.43 (b) Privy councils in relation to the jurisdiction of ordinary courts Wilfrid Prest refers to the ‘bewildering jumble of conflicting and parallel jurisdictions which together made up early modern England’s legal “sys­ tem”’,44 a characterisation which could be extended to many early modern 41  Czeguhn

in this volume, p. 455. in this volume, p. 525. 43  Bryson in this volume, p. 533. 44  Prest in this volume, p. 123. 42  Dauchy

Introduction27

legal systems more generally. The development of new central courts did not fundamentally change that situation, and a degree of indeterminacy of jurisdiction was the consequence. Even with England’s long-established central common law courts, we find, as Neil Jones comments, that ‘given “consumer demand” for royal justice, the existence of multiple central courts inevitably led to uncertainties and frictions at jurisdictional boundaries. These are apparent in relation to the Chancery and the courts of common law at least from the time of Wolsey, and the jurisdictional boundaries remained to some extent malleable at least into the earlier eighteenth century’.45 It might be tempting to imagine that privy councils would be anxious to assert their jurisdiction as ultimately superior to that of any central court, and that in consequence jurisdictional competition might be in evidence. However, in the Habsburg Netherlands, for example, possessing its Privy Council, as well as the Great Council of Malines and the provincial courts, ‘[t]he Privy Council could … and regularly did, commit a case which had been brought before its jurisdiction to one of these courts to be dealt with and decided’.46 By the mid-sixteenth century in Scotland there is also very clear evidence of the Privy Council seeking to prevent ordinary litigation being brought before it instead of the Session (sitting as the new College of Justice), because ‘the lordis of the secret counsale are oftymes impeschit [i. e. obstructed/delayed] with billis and actionis that aucht to be decydit in the sessioun’.47 In England, Chancery did not necessarily seek to supplant other locally-constituted forms of governance based on a parallel regional form of council. For example, in relation to the Council in the Marches for Wales, it ‘not infrequently dismissed suits to determination in the Marches on the ground of the parties’ residence within the Council’s jurisdiction, usually combined with some other ground, such as the smallness of the claim’.48 It might be that these privy councils and similar bodies were aiming to focus on cases with a more general significance, or which engaged general policy on questions such as public order or matters of special political importance, and were trying to avoid hearing cases that were considered to be of a purely private interest to the parties bringing the lawsuits. But sometimes privy councils did play a more assertive role, for example when the wider legal framework had little alternative to a more direct engagement of privy council jurisdiction, as in the colony of Virginia. Here, appeals from the General Court of Virginia were transferred from the General Assembly of Virginia to 45  Jones

in this volume, p. 113. in this volume, p. 392. 47  Godfrey in this volume, p. 179. See also Acta Dominorum Concilii introductory to the Register of the Privy Council of Scotland, Edinburgh, 1932, p. 584 (7 March 1548/9). 48  Jones in this volume, p. 107. 46  Wijffels

28

A. M. Godfrey and C. H. van Rhee

the English Privy Council in 1679.49 This also points to the way, in a colonial setting, that the Privy Council’s close proximity to the King could still make it very much the appropriate body to connect royal jurisdiction to a colonial governance structure situated outside the realm of England. (c) The indeterminacy of residual jurisdiction: blurred division between executive and judicial bodies When tracing the emergence of new judicial institutions, there is a danger of imposing standards of evaluation which might seem conceptually clear but risk being anachronistic. One form this can take with central courts is to regard an absolute and unqualified supreme jurisdiction as the sine qua non of such an institution becoming established and integrated as a central court into the overall structure of jurisdiction. But where the jurisdiction of such a court has derived or gradually evolved from that of a royal council, we have already noted how the parent body is likely to have retained some degree of residual jurisdiction. The respective scope of jurisdiction between the two bodies in this situation is likely to be overlapping and therefore potentially unclear. In other contexts, the new central court may come into existence alongside similar pre-existing central judicial bodies in a situation in which the scope of their respective jurisdictions was already unclear. A lack of jurisdictional clarity and a blurring of the precise division of jurisdiction between such bodies was therefore to be expected. Ultimately rules of jurisdiction reflected to some extent an underlying matrix of authority. When jurisdictional innovation occurred through the establishing of new courts, this required justification in the absence of a clear jurisdictional framework. In many states this would often be based on the exercise by that court of the fundamental prerogative of royal authority to do justice, without attempting a more systematic definition of the extent of jurisdictional competence. The jurisdictional framework which resulted might be contested over a long period, and could only begin to be established once the new court began to exercise its authority. In this situation, jurisdictional rules and competence were not immediately capable of precise definition, and might tend to remain indeterminate until the course of actual litigation prompted rulings to be made in individual cases, through which a principled basis for the scope of jurisdiction could be arrived at over time.50 49  Bryson

in this volume, p. 537. legal ambiguity and indeterminacy in conceptual frameworks, see David Ibbetson, What is Legal History a History of?, in: A. Lewis/M. Lobban (eds.), Law and History, Current Legal Issues, vol. 6, Oxford, 2004, pp. 33–40; discussed in Godfrey, Civil Justice in Renaissance Scotland, pp. 450–452. 50  On

Introduction29

This kind of indeterminacy is visible especially where a multiplicity of central jurisdictions co-existed. In the Holy Roman Empire both central courts – the Reichskammergericht and the Reichshofrat – exercised a largely concurrent jurisdiction. In the Kingdom of Naples, the Consiglio Collaterale ‘would often intervene, regardless of the existence (or not) of any competence on its part, in cases already examined and decided by the Sacro Regio Consiglio, inhibiting in fact – thanks to a bill of nihil innovare – the exercise of jurisdiction on the part of the great tribunal …’.51 In the Habsburg Netherlands, the Privy Council’s jurisdiction was not formally constrained, but was nevertheless ‘meant to interfere only exceptionally with the course of the ordinary courts of law (including the provincial appellate courts and the Great Council in Malines)’, though no clear jurisdictional statement of the criteria justifying interference seems to have been systematically articulated. Indeed, there was no ‘strict demarcation between the council’s powers to adjudicate on a particular case and the jurisdiction of the ordinary courts of law of the sovereign’.52 In England, as Neil Jones observes, ‘the king’s Council in a broad sense, having given rise to the central courts of common law, and to the Chancery, retained a jurisdiction similar to that of the Chancery, subject to the statutes of due process …’ Moreover, he notes that ‘a clear distinction between the court of Chancery and the king’s Council was established only slowly during the fifteenth century’, whilst in the first half of the sixteenth century much of the residual jurisdiction of the Council passed in turn to the court of Star Chamber, finally leaving the residual Privy Council as primarily an organ of government.53 Part of the background to the apparent indeterminacy is also what Alain Wijffels refers to as ‘the fleeting boundaries, in early modern times, between “police and justice”, while both had not yet been separated’.54 Though privy councils, as parent bodies of many of the newer central courts, were typically not subject to formal limits on their jurisdiction, nevertheless we can sometimes see a clearer articulation emerging of the criteria for privy council interference in ordinary jurisdiction. In Scotland we find the concept of the ‘judge ordinary’ being applied to the Session in the 1540s, soon after the foundation of the College of Justice in 1532 (when the Session as a judicial body began to be organised separately from the King’s Council). This helped to provide a conceptual basis for the supreme jurisdiction of the Session over other courts, whilst the category of whether a case was a ‘civil’ matter provided the conceptual basis for defining the boundary, or the opera51  Freda

in this volume, p. 435. in this volume, pp. 391. 53  Jones in this volume, pp. 70–71, 74. 54  Wijffels in this volume, p. 390, fn. 43. 52  Wijffels

30

A. M. Godfrey and C. H. van Rhee

tion of a filter, between the Privy Council and the Session – indeed, ‘determining when an action was “civil” would become the most important criterion for a decision that a case ought to be remitted from the Privy Council to the jurisdiction of the Session as judge ordinary’.55 But as soon as such distinctions gained a more concrete clarity there could be consequential changes of perception amongst litigants in pursuit of justice about where best to seek a remedy. As John Ford remarks, ‘the more standardised the handling of cases in the session became, the more inclined parties became to look elsewhere for equitable relief. Likewise, the more the lords of session came to be regarded as judges ordinary, the less they were expected to provide extra­ ordinary remedies’.56 (d) Lack of unified ordinary jurisdiction balanced by development of extraordinary jurisdiction Alain Wijffels has pointed out that ‘in France and in the Holy Roman Empire, but also in the Republic of the United Provinces [Dutch Republic], not a single ordinary court was able to impose its full jurisdiction throughout the whole territory’.57 This inability of ordinary structures of jurisdiction to regulate uniformly an entire politically-connected territory helps explain the enduring function of residual jurisdiction in the hands of privy councils or parliaments. As Wijffels explains in relation to the Habsburg Netherlands, ‘the lack of a general supreme ordinary court was to some degree compensated by the development of the extraordinary jurisdiction of a governmental body, close to the supreme political authority’.58 Similarly in Sweden, ‘the beneficium revisionis started to evolve during the latter half of the seventeenth century into a sort of Supreme Court, distinct from the Svea Court of Appeal, known as the Justitierevision and inferior only to the King’s own high person’.59 Also elsewhere, such as in the Dutch Republic, revision was a means to reconsider cases that had been already decided at the highest instance; it entailed the involvement of governmental bodies such as the Estates General in the administration of justice.60 In a different context, Wilfrid Prest notes how ‘from the middle of the fifteenth century the [House of] Lords’ judicial activities (other than the trial of peers) lay largely dormant for nearly two hundred years. … Other jurisdictions, including the relatively 55  Godfrey

in this volume, p. 176. in this volume, p. 219. 57  Wijffels in this volume, p. 395. 58  Wijffels in this volume, p. 395. 59  Korpiola in this volume, p. 327. 60  Van Rhee in this volume, p. 412. 56  Ford

Introduction31

new Court of Chancery and the king’s privy council sitting as the court of Star Chamber, took up some of the slack’.61 (e) Personal intervention by the monarch and the exercise of grace Personal intervention by the monarch in the course of justice might also remain possible. In the second half of the sixteenth century in England, for example, ‘petitions for justice submitted directly to the monarch might be sent for determination in Chancery’. The Queen would not personally attempt to decide the petition, but her role had substance since she ‘might order that a cause be heard and determined in the court, or order the re-opening of a case which had been dismissed from Chancery, or the sending of a point of law from Chancery for determination by the common law judges’.62 In the Kingdom of Naples, ‘it was always possible to appeal directly to the sovereign in order to obtain the concession of gratia’, though in effect such business was then transacted by the Consiglio Collaterale.63 Meanwhile, a stronger form of intervention remained possible and quite common in the Holy Roman Empire. The Reichshofrat retained into the seventeenth century the practice of Vota ad imperatorem. This involved submission of cases directly to the emperor in the event that both councillors (Referenten) responsible for the case at the Reichshofrat ‘were in disagreement, or when there was disagreement among the judges’.64 Similarly, in the Roman curia the Pope retained the ultimate right to intervene personally in litigation since ‘the papal plenitude of power made it always possible to appeal to the pope so that he would personally make the decision in a case’.65 In this context, it should be noted that in the Dutch Republic revision was considered to be related to the idea of recursus ad principem due to the involvement of the Estates General and other governmental bodies in rehearing cases decided at the highest instance.66 (f) Privy councils and jurisdictional conflict The characteristic indeterminacy of superior early modern jurisdiction and the existence of residual privy council or parliamentary jurisdiction alongside a central court might seem to set the scene for repeated jurisdictional con61  Prest

in this volume, p. 126. in this volume, p. 103. 63  Freda in this volume, p. 434. 64  Oestmann in this volume, p. 266. 65  Salonen in this volume, p. 60. 66  Van Rhee in this volume, p. 408. 62  Jones

32

A. M. Godfrey and C. H. van Rhee

flict. However, the very fact that privy council jurisdiction was residual and not available through the ordinary system of court remedies tended to prevent the privy council being drawn into the word of ordinary litigation. As we have seen, various criteria might emerge to provide a filter or test to determine when cases ought necessarily to be heard in the ordinary court system. In England, for example, much of the residual jurisdiction of the King’s Council was channelled into the Star Chamber in the first decades of the sixteenth century, and from 1540 there was a clearly separate and distinct Privy Council. Even so, ‘the Privy Council retained a right to hear private suits (including disputes over property) and to punish lesser crimes’, but it might pursue these suits by directing the chancellor to appoint commissioners to handle the case, or even refer the case directly to the Chancery.67 Matters were naturally eased in this context by the fact that the chancellor was ‘de facto president of the court of Star Chamber’.68 However, sometimes the residual privy council adopted a more assertive jurisdictional role as a result of the wider political context. For example, in Naples, as we have seen, the Consiglio Collaterale ‘tended to become a sort of superior court of appeal for all the decisions of the Sacro Regio Consiglio’.69 In Castile in the late fourteenth century, the Royal Council (Consejo Real) decided cases brought under the ‘segunda suplicación’, which created conflict with the Audiencia as the highest ordinary jurisdiction. By the sixteenth century, the Royal Council of Castile formally acquired final instance jurisdiction and became in 1543 the highest court in the Spanish realm.70 Sometimes conflict was more explicit. In seventeenth-century England, as Wilfrid Prest notes, ‘when both monarchy and Lords returned in 1660, controversy over the precise bounds of the peers’ jurisdictional powers entered a new phase, marked by fierce determination on the part of the Lords to uphold all their newly restored prerogatives’.71 In the Holy Roman Empire, the recursus ad comitia provided by way of extraordinary remedy a procedural recourse to the Imperial Diet itself against judgments by the Reichskammergericht. At one time rare, its deployment increased substantially in the later seventeenth century. As Peter Oestmann notes, ‘the Diet was meant to annul the imperial courts’ decisions and form its own judgment. At all times, it was disputed whether it should be considered a superior level of jurisdiction to the imperial court’.72

67  Jones

in this volume, p. 101. in this volume, p. 105. 69  Freda in this volume, p. 429. 70  Czeguhn in this volume, p. 450. 71  Prest in this volume, pp. 131–132. 72  Oestmann in this volume, p. 267. 68  Jones

Introduction33

Conclusion The central courts on which this volume concentrates are not necessarily ‘supreme courts’ in the modern sense. First, these courts were not necessarily ‘supreme’ in terms of exercising absolutely final jurisdiction, since some form of ultimate recourse against their judgments was often available, usually from more politically constituted bodies within central governance. This is demonstrated by the availability of technical procedures such as ‘revision’ or recursus ad principem and analogous means of recourse. Furthermore, these courts were not necessarily supreme in an exclusive sense, since they often shared their position at the top of the judicial hierarchy with other bodies exercising a competing if not necessarily identical jurisdiction. Central courts can be distinguished from other courts, however, since they were competent for the whole of a politically connected territory (even if parts of that territory obtained exemption from the exercise of the central jurisdiction), and they typically administered justice in the name of sovereign authority. They would normally issue the final judgment in the majority of civil actions even if further exceptional means of recourse were available, and also because privy councils and related bodies did not generally seek involvement in the normal run of civil actions. Consequently, the central courts discussed in this volume could play the leading role in shaping and unifying the law in their respective territories, and in promoting harmonisation and unification of jurisdiction. Equally, the transformation of royal conciliar jurisdictions outside the ordinary court structures into more autonomous judicial bodies constituted as courts of law could open up a new role for the more political institutions of central governance. In particular, it might serve to stimulate the renewed provision of extraordinary forms of equitable intervention by privy councils or parliaments outside the ordinary court structures, providing a systematic means for the legal system to remain open to the kind of equitable flexibility which litigants might be led to demand in the application of the law. Many central courts discussed in this volume would also have originally exercised powers in areas other than the administration of justice. This is obviously due to the fact that so many of these courts originated in the sovereign’s council, exercising administrative and legislative as well as judicial powers, as well as to the absence of a formal separation of powers in the early modern period. During the period under consideration, however, their non-judicial sphere of competence diminished and the administration of justice became their core task. The focus on judicial work and inclusion of legally-trained judges also tended to promote the rise of learned lawyers generally in the operation of these courts, including amongst those appearing as advocates or advising clients bringing a case. Alongside ongoing dissemina-

34

A. M. Godfrey and C. H. van Rhee

tion of Roman Rota decisiones through published collections, these early modern learned lawyers produced a new juristic literature in the form of observations and reports of secular central court decisions and arguments, which became a crucially important influence on legal development between the sixteenth and eighteenth centuries. This is part of what Douglas Osler has referred to as ‘the absolutely central phenomenon of the emergence of modern juristic writing tied to the emerging territorial state’, in which ‘the centre of gravity is the individual legal system: the forensic literature, the consilia and decisiones, of the great national tribunals which had recently been established, and the academic literature of the other jurists within the individual system’.73 In this and many other aspects the early modern period witnessed the birth of a new type of court, tending to give rise to a jurisdictional shift towards control by central judicial institutions, enhancing the role of central state institutions in governance, and prompting new juristic learning based on forensic practice. Ultimately these early modern developments provided a constitutional legacy which has underpinned the longer-term tradition in which the position of supreme courts in modern societies has been established. Bibliography Acta Dominorum Concilii introductory to the Register of the Privy Council of Scotland, Edinburgh, 1932. Auer, L./Ogris, W./Ortlieb, E. (eds.), Höchstgerichte in Europa. Baustein frühneuzeitlicher Rechtsordnungen, Quellen und Forschungen zur Höchsten Gerichtsbarkeit im Alten Reich, Vol. 53, Cologne, 2007. Baker, J. H. (ed.), Judicial Records, Law Reports, and the Growth of Case Law, Comparative Studies in Continental and Anglo-American Legal History, Vol. 5, Berlin, 1989. Brown, K. M. et al. (eds.), The Records of the Parliaments of Scotland to 1707,­ St Andrews, 2007–2016. Christensen, J. P./Erichsen, J./Tam, D., The Supreme Court of Denmark, Copenhagen, 2015. Czeguhn, I. et al. (eds.), Die Höchstgerichtsbarkeit im Zeitalter Karls V, Baden-Baden, 2011. Czeguhn, Ignacio/López Nevot, José Antonio/Sánchez Aranda, Antonio (eds.), Control of Supreme Courts in Early Modern Europe, Schriften zur Rechtsgeschichte (RG), Vol. 181, Berlin, 2018.

73  Douglas J. Osler, The Myth of European Legal History, in: Rechtshistorisches Journal, 16, 1997, pp. 393–410, at 406, 407.

Introduction35 Diestelkamp, B. (ed.), Oberste Gerichtsbarkeit und Zentrale Gewalt, Quellen und Forschungen zur Höchsten Gerichtsbarkeit im Alten Reich, Vol. 29, Cologne, 1996. Gilissen, J. et al., Consilium Magnum (1473–1973). Herdenking van de 500e verjaardag van de oprichting van het Parlement en de Grote Raad van Mechelen. Colloquium, Brussels, Malines, 1977. Godfrey, A. M., Civil Justice in Renaissance Scotland. The Origins of a Central Court, Leiden, 2009. Guenée, B., States and Rulers in Later Medieval Europe, Oxford, 1985 (originally published as L’Occident aux xive et xve siècles, 1st ed., Paris, 1971, 2nd ed., Paris, 1981). Hannay, R. K., ‘On the Antecedents of the College of Justice’, in: Hannay, R. K., The College of Justice, Stair Society, Supplementary Vol. 1, 1990, ed. MacQueen, H. L., 179–215. Ibbetson, David, ‘What is Legal History a History of?’, in: Lewis, A./Lobban, M. (eds.), Law and History, Current Legal Issues, vol. 6, Oxford, 2004, pp. 33–40. Korpiola, Mia et al., The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Institutet för Rättshistorisk Forskning, Stockholm, 2014. Osler, Douglas J., ‘The Myth of European Legal History’, Rechtshistorisches Journal, 16, 1997, pp. 393–410. Sbriccoli, M./Bettoni, A. (eds.), Grandi Tribunali e Rote nell’Italia di antico regimine, Milan, 1993. Scheurmann, I. (ed.), Frieden durch Recht: Das Reichskammergericht von 1495 bis 1806, Mainz, 1994. Strayer, J. R., On the Medieval Origins of the Modern State, Princeton, 1970. Tompson, Richard S., Islands of Law – A Legal History of the British Isles, New York, 2000. Van Rhee, C. H., Litigation and Legislation: Civil Procedure at First Instance in the Great Council for the Netherlands in Malines (1522–1559), Brussels, 1997. Wijffels, A. (ed.), Case Law in the Making. The Techniques and Methods of Judicial Records and Law Reports, Comparative Studies in Continental and Anglo-American Legal History, Vol. 17, Berlin, 1997 Wijffels, A., ‘The Parlement of Flanders’, in: Wijffels A./Van Rhee, C. H. (eds.), European Supreme Courts. A Portrait Through History, London, 2013, pp. 72–73. Wijffels, A./Van Rhee, C. H. (eds.), European Supreme Courts: A Portrait through History, London, 2013.

K. SALONEN

The Sacra Romana Rota 1. What was the medieval Sacra Romana Rota? The Sacra Romana Rota, officially the Audientia sacri palatii, was the supreme court of the papal curia. The origins of this still-functioning tribunal can be found in the 12th century, but its jurisdiction was officially defined much later, in 1331, through the promulgation of the constitution Ratio iuris by Pope John XXII (pontiff 1316–34). The jurisdiction of the Rota increased during the Middle Ages and the tribunal reached the peak of its influence at the turn of the 15th and 16th centuries. In the course of the 16th and especially the 17th century the popes diminished little by little the jurisdiction of the Rota and entrusted its tasks to various ‘congregations’ that were established in the spirit of reforming the papal administration.1 The influence of the Rota decreased throughout the 17th and 18th centuries until the tribunal lost the remainder of its legal competences in 1870, when Italian troops conquered the Papal States and incorporated the territory into the Kingdom of Italy. In 1908, when Pope Pius X (pontiff 1903–14) reorganized the papal administration, the Sacra Romana Rota was re-established with the promulgation of the constitution Sapienti Consilio.2 This article focuses on the history and functioning of the Rota during the period of its highest influence, the 15th and 16th centuries. In the late Middle Ages and on the eve of the Reformation, the Sacra Romana Rota had a twofold competence. First and foremost the Rota was the highest tribunal of appeal in the ecclesiastical court system. It was possible to appeal to the Rota against a judgment pronounced by a local ecclesiastical 1  About the historical development of the papal administration, Niccolò Del Re, La Curia Romana: lineamenti storico-giuridici. Quarta edizione aggiornata ed accresciuta, Sussidi eruditi, 23, Rome, 1998. 2  The development of the jurisdiction of the Rota in different centuries is described in detail in Stefan Killermann, Die Rota Romana. Wesen und Wirken des päpstlichen Gerichtshofes im Wandel der Zeit, Adnotationes in ius canonicum, 46, Frankfurt am Main, 2009, passim. See also Per Ingesman, Provisioner og processer. Den romerske Rota og dens behandling af danske sager i middelalderen, Århus, 2003, pp. 85–110; Kirsi Salonen, Papal Justice in the Late Middle Ages: The Sacra Romana Rota. Church Faith and Culture in the Medieval West, Abingdon, 2016, pp. 18–31.

38

K. Salonen

court. Typically such cases were first handled at local episcopal or archiepiscopal courts and the Rota functioned as the last resort for those who thought that they would not get justice locally. The 15th and 16th-century source material of the Sacra Romana Rota shows that Christians from all over Christendom appealed to the Rota. The litigation handled by the Rota in the capacity of tribunal of appeal all fell within the competence of ecclesiastical jurisdiction generally. In practice this included disputes concerning the church or ecclesiastical institutions or their rights, quarrels involving persons belonging to the clergy or issues which were of a purely ecclesiastical nature, such as individuals’ rights to choose their burial place or the validity of a marriage. Secondly, the Rota functioned as a tribunal of first instance for persons who were subjects of the diocese of Rome or of the Papal States. If necessary, appeals in these cases took place in the Rota too. The Rota sources demonstrate that Christians indeed used the tribunal for this purpose. The Rota’s jurisdiction in the second role as local ecclesiastical tribunal included – in addition to disputes of an ecclesiastical nature – also certain civil issues, causae profanae, including for example property litigation between lay people. Due to its double competency, the activity of the Rota was intertwined both with the activities of the other papal tribunals functioning in the Roman curia and with the activities of the network of lower-level ecclesiastical tribunals. In the first case, the jurisdiction of the Rota was defined in respect of the other curial tribunals so that the Rota could not handle criminal cases, which were reserved for the authority of the Audientia Camerae, or cases related to the authority of ecclesiastical tribunals to pronounce sentences locally, which were handled by the Audientia litterarum contradictarum. In the second case, the Rota can be considered as a kind of model tribunal for the local ecclesiastical courts. The litigants could appeal against local sentences to the Rota but at the same time the local courts had to follow the principles defined by the supreme papal court.3 The organization of the Rota was basically very simple, the main actors being judges or auditors (auditores) and notaries. Auditors played the main role in the tribunal because their task was to judge. The Rota auditors were professional lawyers of high qualification. The constitution In apostolicae dignitatis of Pope Martin V (pontiff 1417–31)4 defined in detail the requirements for candidates who desired to become auditors. According to the constitution, the auditors had to be famous doctors of jurisprudence (either canonists or legists (i. e. civilians) – or preferably experts in both laws) and they 3  Salonen,

Papal Justice, pp. 13–17. Michael Tangl (ed.), Die päpstliche Kanzleiordnungen von 1200 bis 1500, Innsbruck, 1894, pp. 133–145. 4  In



The Sacra Romana Rota39

should have taught law at a university for at least three years. Additionally, they had to have a permanent position that would guarantee them a yearly income of at least 200 gold florins and it was a prerequisite that they had a good reputation. These high expectations meant that only a few men were eligible as auditors. After the renewal of the activity of the Rota in 1472 by Pope Sixtus IV (pontiff 1471–84) the number of auditors was restricted to twelve. In principle, the twelve auditors resolved individually each case but in difficult matters or in matters of doubt they could consult their peers.5 Each of the twelve auditors had in their service four notaries, who took care of the practical side of the activity of the tribunal. Their task was to write down, during the lawsuit, the acts in each case entrusted to them by the responsible auditor and to make sure that all relevant documents for the case were composed in the correct way. Additionally, the notaries often assisted the auditors in the interrogation of witnesses or examination of documents handed over to them. The professional requirements for notaries were strict too. Notaries had to be at least 25 years old and they had to have experience acting as notaries elsewhere in addition to which they had to be men of good reputation. Originally, the notaries were directly employed by the auditors but the constitution Sicut prudens pater of Sixtus IV from 14776 changed this system. From then on, the notaries were employed directly by the curia and they were no longer dependent on the auditors.7 In addition to auditors and notaries who were officially employed by the papal curia the persons litigating in the Rota used the services of advocates and procurators. Advocates represented their clients and took care of their interests before the tribunal, while procurators helped the advocates and their clients in more practical matters. For example they ensured that the correct documentation was handed over to the notaries in due time. The advocates and procurators were not employed by the Rota but received their salaries directly from their clients. Additionally, Rota cases created work for other persons working at the papal curia, for example copyists writing the necessary documents and messengers serving them.8 5  About auditors, Emmanuele Cerchiari, Capellani Papae et Apostolicae Sedis Auditores causarum sacri palatii apostolici seu Sacra Romana Rota ab origine ad diem usque 20 septembris 1870. Relatio historica-iuridica. Vol. 1: Relatio; Vol. 2: Syntaxis Capellanorum Auditorum; Vol. 3: Documenta; Vol. 4: Formae et Indices, Rome, 1919–1921, passim; Ingesman, Provisioner og processer, pp. 112–122; Salonen, Papal Justice, pp. 32–37. 6  In Cerchiari, Capellani Papae 3, pp. 191–195. 7  About notaries, see Ingesman, Provisioner og processer, pp. 123–131; Salonen, Papal Justice, pp. 37–39. 8  About other persons working for the Rota, see Ingesman, Provisioner og processer, pp. 131–134; Salonen, Papal Justice, pp. 39–41.

40

K. Salonen

The premises of the Sacra Romana Rota were located at the heart of the ecclesiastical administration, in the papal palace. The first mentions of a location especially designed for the Rota are from the times of the Avignon papacy, when Pope Benedict XII (pontiff 1334–42) reserved premises both for the Rota and for the Audientia litterarum contradictarum in the papal palace he built in Avignon.9 During the Roman papacy, the Rota had its premises (palatio causarum apostolica) close to St. Peter’s Basilica in the Vatican. The Rota auditors met there for their common gatherings, audien­ tiae, during which they resolved and discussed the cases. However, the activity of the Rota also took place elsewhere, since the Rota notaries used to work at home or in the building where the auditors they were working for were living. The Rota sources, for example, give evidence of how the notaries interrogated witnesses in the house of the responsible auditor.10 2. The birth and development of the Sacra Romana Rota The Sacra Romana Rota – as with all other contemporary papal offices and tribunals – was never officially founded through a papal constitution or bull but simply developed little by little into the highly influential tribunal which it was on the eve of the Reformation. The history of the Rota is directly connected to the need to reform and centralize the papal administration, and to the development of canon law in the late 12th century but especially in the course of the 13th century. Even though the popes had handled various legal controversies in their role of supreme judge in Christendom since the first centuries AD, the history of the Rota cannot be directly connected to so early a period even though this has been suggested sometimes.11 It is possible to connect the history of the Rota to the high Middle Ages, when the practice of bringing legal issues before the Holy Father became more common. Many 11th-century pontiffs are known as active developers of the papal administration and consolidators of the legal powers of the papacy. One of them was Gregory VII (pontiff 1073–85) who specified in 1075 in Dictatus papae that all 9  Concerning the papal palace in Avignon and the premises of the Rota there, see Gabriel Colombe, Au palais des papes d’Avignon, Recherches critiques et archéologiques, XXI, La ‘rota’ de la Grande Audience, Paris, 1921; Gabriel Colombe, A propos de la ‘rota’ de l’Audience au Palais d’Avignon, Marseille, 1926; Gabriel Colombe, Au palais des papes d’Avignon, Nouvelles recherches critiques et archéologiques, XXIII, Le quartier de l’auditeur général, Paris, 1941. 10  AAV, S. R. Rota, Manualia Actorum 12, f. 70r: ‘… in domo habitationis reverendi patris domini Johannis episcopi Nucerinensi …’; Salonen, Papal Justice, pp. 73– 75. 11  Killermann, Die Rota Romana, pp. 14–20.



The Sacra Romana Rota41

causae maiores were from that date onwards reserved to papal jurisdiction. His 12th century successors, in particular Alexander III (pontiff 1159–81) and Innocent III (pontiff 1198–1216), are known as fervent developers of canon law and thereby also of papal jurisdiction. In fact, some scholars attribute the creation of the Sacra Romana Rota to Pope Innocent III because it was during his pontificate that the resolution of legal problems brought before the pope – who was overburdened with so many different kinds of issues to resolve – was for the first time systematically delegated not only to judicially qualified cardinals collaborating with the pontiff but also to papal chaplains.12 In the course of the 13th century, the papal chaplains took over the handling of legal issues at the papal curia.13 As the handling of numerous cases became a full-time occupation for them, the papacy had to take care of their livelihood. Originally, the papal chaplains received their income from an ecclesiastical benefice they were appointed to, but when they became permanent papal judges this temporary solution of providing a livelihood had to be reconsidered. The jurist-pope Innocent IV (pontiff 1243–54) was especially active in resolving the problem and, indeed, the sources from his pontificate mention for the first time the auditores generales causarum palatii, which indicates a move towards a more stable and permanent institution of papal judges and thereby the existence of an institutional predecessor of the Rota. The 12th and 13th-century developments both in papal administration and jurisdiction meant the concentration of the highest ecclesiastical powers in legal matters into the hands of the pope, who due to his extensive activities could not take care of resolving the cases personally and therefore delegated them to the authority of various officials of the papal curia. This was the first step towards the birth of the Rota as a permanent and official ecclesiastical tribunal. But the Rota did not receive an official status before the promul­ gation of the constitution Ratio iuris of Pope John XXII on 16 November 1331.14 Even though Ratio iuris cannot be considered as the founding document of the Rota, since it only established the practices already existing in the tribunal, the constitution is extremely significant for the history of the Rota because it clarifies and specifies for the first time many matters which earlier had remained undefined. It also had long-lasting effects, because the 12  Killermann, Die Rota Romana, pp. 21–51; Ingesman, Provisioner og processer, pp. 86–91; Salonen, Papal Justice, pp. 19–21. 13  Agostino Paravicini Bagliani, Il ‘Registrum causarum’ di Ottaviano Ubaldini e l’amministrazione della giustizia alla Curia Romana nel secolo XIII, in: Erwin Gatz (ed.), Römische Kurie. Kirchliche Finanzen. Vatikanisches Archiv. Studien zu Ehren von Hermann Hoberg, II, Miscellanea Historiae Pontificiae, 46, Rome, 1979, pp. 635–657 at 644–654. 14  In Tangl (ed.), Die päpstliche Kanzleiordnungen, pp. 57–67.

42

K. Salonen

constitution remained in force until the early modern period. Other Avignon popes improved the activity of the Rota through a handful of constitutions regulating the functioning of the papal curia. Worth mentioning are for example the constitution Decens et necessarium of Pope Benedict XII, promulgated on 26 October 1340,15 and Quamvis a felicis of Pope Gregory XI (pontiff 1370–78), promulgated on 1 March 1375,16 in which the role, status and tasks of the Rota advocates and procurators were defined.17 In 1377, Pope Gregory XI returned to the Eternal City from the ‘Babylonian Captivity’ of the papacy in Avignon, and Rome became the centre of Western Christendom again. Together with the pontiff, the whole papal administration moved back to Rome and from this year onwards we can talk literally about the Roman Rota. The period of the Western Schism (1378–1417) hit the Roman Rota hard. When the successor of Gregory XI, Pope Urban VI (pontiff 1378–89), was not universally recognized as the head of the Church, the ecclesiastical administration – and thereby also the Rota – was split into two. A large proportion of the officials of the Rota left Rome and Pope Urban and joined the French Antipope Clement VII (antipope 1378–94). The difficulties faced by the Roman Rota due to the exit of a large number of skilled personnel meant, ironically, a step forward because the Rota officials in Rome had to develop the functioning of the tribunal and train new personnel, which led to the compiling of manuals and guidebooks for their assistance.18 One of the most famous guidebooks was Stilus palatii abbreviatus, composed by Dietrich von Nieheim around 1380.19 The period of the conciliar movement of the 15th century meant another important step in the history of the Rota. The new universally-recognized Pope Martin V began to rebuild the papacy according to the requirements for a considerable reform of the Church made by the participants of the Council of Constance (1414–18), who had supported the election of the new pontiff. The first task of Pope Martin V was thus to improve the functioning of the Tangl (ed.), Die päpstliche Kanzleiordnungen, pp. 118–124. Tangl (ed.), Die päpstliche Kanzleiordnungen, pp. 128–131. 17  Killermann, Die Rota Romana, p. 51–66; Ingesman, Provisioner og processer, pp. 91–99; Salonen, Papal Justice, pp. 21–25. 18  Salonen, Papal Justice, p. 26. 19  In Georg Erler (ed.), Der Liber cancellariae apostolicae vom Jahre 1380 und der Stilus palatii abbreviatus Dietrichs von Nieheim, Leipzig, 1888, pp. 217–234; Brigide Schwarz, Statuta sacri causarum apostolici palacii auditorum et notariorum. Eine neue Quelle zur Geschichte der Rota Romana im späten Mittelalter, in: Johannes Helmrath/ Heribert Müller/Helmut Wolff (eds.), Studien zum 15. Jahrhundert. Festschrift für Erich Meuthen, vol. 2, Munich, 1994, pp. 845–867. 15  In 16  In



The Sacra Romana Rota43

central administration of the Church in Rome. The reform attempts resulted in two constitutions, In apostolicae dignitatis (promulgated on 1 September 1418)20 and Romani pontificis (1 March 1423),21 which played an important role in regulating the activities of the Rota too. Despite the reform idea behind these constitutions, they did not bring great improvements to the functioning of the Rota but mainly confirmed what had been stipulated in Ratio iuris in 1331 and Quamvis a felicis in 1375. In the spirit of conciliarism, the constitutions of Martin V, however, introduced one important novelty, namely the prohibition of selling offices, including those of Rota notaries.22 When the Roman papacy could not meet the reform requirements of the Council of Constance, a new council was convened in Basel after the death of Pope Martin in 1431. The Church was again divided into more separate factions and a new schism emerged, during which the Rota was again split into two competing parts. The Roman Rota was loyal to Pope Eugene IV (pontiff 1431–47), while the council Rota functioned in Basel. This was a period of uncertainty in the history of the Rota.23 The spirit of the conciliar movement continued after the end of the second conciliar period. From the mid-15th century onwards, popes began again to govern from Rome and attempted to eliminate the malfunctioning of the papal administration and the ineffectiveness of papal tribunals. The first successful step in reforming the Rota was taken by Pope Sixtus IV by promulgating two constitutions. In Romani pontificis (14 May 1472)24 he limited the number of auditors to twelve instead of fourteen, and in Sicut prudens pater (29 November 1477)25 he revised the rules of employment of the Rota notaries. Until 1477 the notaries were employed by individual auditors, and their employment ceased with the death or resignation of their employer. After Sicut prudens pater notaries were considered as officials of the papal curia and their employment was not tied to the person of a particular auditor.26 In addition to Sixtus IV, other late medieval popes also intended to renew the Tangl (ed.), Die päpstliche Kanzleiordnungen, pp. 133–145. Tangl (ed.), Die päpstliche Kanzleiordnungen, pp. 146–160. 22  Killermann, Die Rota Romana, pp. 21–51; Ingesman, Provisioner og processer, pp. 99–105; Salonen, Papal Justice, pp. 26–29. 23  Ingesman, Provisioner og processer, pp.  105–106; Salonen, Papal Justice, pp. 28–29. 24  In Luigi Tomassetti et al. (eds.), Bullarium Romanum. Bullarium diplomatum et privilegiorum sanctorum romanorum pontificum Taurinensis edition. Tomus V ab Eugenio IV (an. MCCCCXXXI) ad Leonem X (an. MDXXI), Turin, 1860, pp. 207– 209. 25  In Cerchiari, Capellani papae 3, pp. 191–195. 26  Salonen, Papal Justice, pp. 37–38. 20  In 21  In

44

K. Salonen

papal curia, but reforming ideas of Pius II (pontiff 1458–64) and Alexander VI (pontiff 1492–1503) were not put into practice.27 Pope Innocent VIII (pontiff 1484–92), in contrast, did succeed in renewing the curial administration and his constitution Finem litibus, promulgated on 10 January 1488, brought a significant change in the activity of the Rota.28 Apart from confirming the existing constitutions regulating the activities of the Rota, the most important innovation of Finem litibus was that the Rota received powers to handle civil cases originating from the territory of the Papal States if the plaintiffs were orphans or widows, or if the litigation concerned a financial dispute below the value of 500 gold florins. The constitution specified that the Rota should handle these cases according to the same principles as it handled litigation concerning benefices, i. e. according to the model of the summary process. The specific aim of Finem litibus in this respect was to make the handling of cases faster, simpler and, thereby, cheaper for litigants. The constitution of Pope Innocent was the last one increasing or affecting the activities of the Rota in the late Middle Ages/Early Modern period. Therefore it is correct to say that the evolution of the Rota ended with his pontificate. By then, the previous reforms and constitutions had expanded the Rota’s powers and turned it into the most important tribunal within the Church.29 The history and development of the Sacra Romana Rota is thus closely connected with the development of the papal administration. The authority of the tribunal increased together with the increased power of the papacy and later declined alongside the increasing criticism directed towards the Church despite reform attempts. Unlike other supreme tribunals in European countries, the Rota was not involved in development or reform of the law itself, even though some of the Rota auditors were leading ecclesiastical jurists, like Guillaume Durand (c. 1230–96), the famous author of the Speculum iudiciale (1271). Likewise, the development of the Rota was not directly connected with the development of ecclesiastical legislation such as the promulgation of the Liber Extra by Pope Gregory IX in 1234. 3. Jurisdiction of the Sacra Romana Rota The jurisdiction of the Rota has its origins in the authority of the pope to resolve legal questions which derived from his role as leader of the Christian Church as it existed already in the first century AD. We know that the Bish27  Ingesman, Provisioner og processer, pp.  107–108; Salonen, Papal Justice, pp. 28–29. 28  In Tomassetti et al. (eds.), Bullarium Romanum V, pp. 339–341. 29  Salonen, Papal Justice, pp. 29–31; Ingesman, Provisioner og processer, p. 108.



The Sacra Romana Rota45

op of Rome was consulted in various disputes, as when the deposed priests of Corinth appealed to Clement I (pontiff 92?–99?) in Rome. This early appeal has, strictly speaking, nothing to do with the history of the Rota, but it demonstrates that the pope was considered from an early date onwards as the supreme judge in important ecclesiastical matters.30 Appealing to the papacy in legal issues emerging in the dioceses of the expanding Church became regulated at the beginning of the fifth century, when Pope Innocent I (pontiff 401–17) wrote to Victricius, Bishop of Rouen, in 404 that in the causae maiores, i. e. the most significant legal cases, appealing to the pope should be the next step after the cases had first been handled by the local bishops. This made the Roman pontiff the supreme ecclesiastical judge above the jurisdiction of episcopal judges. Later papal decisions allowed private persons to appeal to the pope if they had to solve legal issues related to ecclesiastical legislation, such as questions about the validity of a marriage. The number of legal issues brought before the popes remained, however, very modest until the 11th and 12th centuries.31 In 1075 Pope Gregory VII stated in his 27-point edict, Dictatus papae, that all causae maiores were reserved to the papal jurisdiction and that any Christian was free to appeal to the pope if he had legal issues, be they ecclesiastical or civil, to solve.32 The papal jurisdiction remained, however, at this point still very unspecified, partly because the ecclesiastical legislation of that time was still very imprecise. It was only during the 12th and 13th centuries that the regulations of canon law began to develop those various matters that later became the jurisdiction of the Rota. For example, ecclesiastical legislation regarding marriages increased considerably only as a consequence of the Fourth Lateran Council (1215).33 Similarly the papal regulations concerning the appointment of persons to ecclesiastical benefices, which was the most frequent reason to litigate in the Rota, developed fully only during the Avignon papacy (1309–77).34 Important steps in the development of the idea of the pope as the supreme judge in Christendom were taken in various Church Councils that stipulated – in the spirit of unifying ecclesiastical 30  Killermann,

Die Rota Romana, pp. 14–15; Salonen, Papal Justice, p. 18. Die Rota Romana, pp. 15–20. 32  Killermann, Die Rota Romana, p. 21. 33  About the ecclesiastical legislation on marriage, see James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, Chicago, 1987. 34  About the papal policy of the reservation of benefices, see Peter Linden, Der Tod des Benefiziaten in Rom. Eine Studie zu Geschichte und Recht der päpstlichen Reservationen, Kanonistische Studien und Texte, 14, Bonn, 1938; Andreas Meyer, Zürich und Rom. Ordentliche Kollatur und päpstliche Provisionen am Frau- und Grossmünster 1316–1523, Bibliothek des Deutschen Historischen Instituts in Rom, 64, Tübingen, 1986, pp. 26–49. 31  Killermann,

46

K. Salonen

norms – that certain issues were considered so important that they could be resolved only by the pope himself. The first such decision was taken by the Second Lateran Council (1139), which decided that all those who were guilty of homicide against a cleric or monk had to come personally to Rome to plead their case and to ask for absolution.35 The number of reserved cases increased in the course of the Middle Ages and by the 15th century the handling of a considerable number of different kinds of issues was reserved to the papal authority. The diverse responsibilities of the pontiffs meant that they soon were unable to resolve all cases personally. They solved this problem by delegating some of their powers of decision to the officials of the curia, which in the case of legal issues resulted in the birth of permanent papal tribunals. The role of the Rota in resolving legal questions entrusted to the pope was twofold. Firstly, the Rota could take over the role of the pope as the supreme judge in appeal cases that had earlier been handled by local ecclesiastical tribunals or judges. In this case, the Rota was the supreme tribunal of the Church to the authority of which any Christian could appeal if he was not content with the decision of his local tribunal. In this situation the jurisdiction of the Rota encompassed all those ecclesiastical matters that were included in the jurisdiction of the local ecclesiastical tribunals. In practice it meant that the Rota could handle as tribunal of appeal all legal issues in which clerics, ecclesiastical institutions such as parishes, monasteries or chapters were involved or disputes in which there was question about matters regulated by canon law. Compared to the jurisdiction of diocesan tribunals, this meant that the Rota could handle cases such as marriage disputes, violence against the clergy, and disputes about money or property among many other legal issues.36 Secondly, the Rota could act as a first instance local ecclesiastical tribunal for those Christians who were subjects of the diocese of Rome (where the pope was the supreme judge as the bishop of Rome) or of the Papal States (in the territory of which the pope was the supreme judge as the head of the state). In this role the Rota could deal with all cases typically handled in ecclesiastical tribunals. Additionally, as a consequence of the constitution Finis litibus of Innocent VIII in 1488, the Rota could handle in this role also civil 35  Constitution no. 15 of the Second Lateran Council, which is commonly known as Si quis suadente [diabolo] is published in Giuseppe Alberigo et al. (eds.), Conciliorum Oecumenicorum Decreta, 3rd ed., Bologna, 1973, pp. 200. 36  About litigation in the local ecclesiastical courts, see for example Charles Donahue Jr, Law, Marriage, and Society in the Later Middle Ages. Arguments About Marriage in Five Courts, Cambridge, 2007; Richard H. Helmholz, Marriage Litigation in Medieval England, London, 1974.



The Sacra Romana Rota47

cases if the plaintiffs were widows or orphans or if the litigation concerned financial matters not over 500 gold florins.37 Unlike in the case of various other medieval or early modern supreme tribunals or other papal offices, there are no sources that would include detailed information about what kinds of different disputes the Rota had the powers to handle. Neither do the sources inform us about such important matters as what kinds of decisions the Rota should take in different kinds of disputes and why. This is somewhat peculiar because the Rota was without doubt one of the most important and influential tribunals of its time. At the same time the lack of such sources is indicative of the functioning of the papal system of justice. According to the principles of papal administration, the pope could decide upon what kinds of cases could be handled in the papal curia and he (through a representative) was in principle also responsible for accepting or rejecting an appeal to have a case handled by the Rota. When the decision-making was clearly reserved to one person, there was no need to write down exact instructions or information on cases belonging to the jurisdiction of the Rota – or which were rejected from it. If the pope considered a case to be worth bringing to the Rota, then it was referred to the Rota auditors. There are, however, a few groups of sources which can reveal details about the cases handled by the Rota in the Middle Ages up until the beginning of the 16th century and inform us about the jurisdiction of the Rota. Firstly, the 14th-century decisiones of the Rota, which were later printed, contain important information about the jurisdiction of the Rota at that time. Gero Dolezalek, who has studied these collections, has been able to draw several important conclusions about the activity of the Rota in the 14th century on the basis of the decisiones.38 The decisiones, for example, allow the 37  Ingesman,

Provisioner og processer, pp. 108; Salonen, Papal Justice, pp. 30–31. of the fourteenth-century decisiones of the Rota are preserved. At first, the decisiones material circulated in the form of manuscripts among the personnel of the Rota but at a certain point the manuscripts began to travel outside the curial circles. After the invention of book printing, the decisiones collections were published: Decisiones Thomae Falstoli (years 1336–37), Decisiones antiquores (collected in the 1360s), Decisiones antiquae (collected from 1372 onwards), Decisiones Aegidii Bellemerae (years 1374–75), Decisiones novae (years 1376–81). For the oldest decisiones collections and their publishing history, see Gero Dolezalek and Knut Wolfgang Nörr, Die Rechtsprechungssammlungen der mittelalterlichen Rota, in: Helmut Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, vol. I, Munich, 1973, pp. 847–856. See also Gero Dolezalek, Die handschriftliche Verbreitung von Rechtsprechungssammlungen der Rota, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, 58, 1972, pp. 1–106; Gero Dolezalek, Questiones motae in Rota. Richterliche Beratungsnotizen aus dem 14. Jahrhundert, in: Stephan Kuttner/Kenneth Pennington (eds.), Proceedings 38  Some

48

K. Salonen

analysis of what kind of cases were brought before the Rota and Dolezalek has calculated that in the years between 1352 and 1365 approximately 72 % of Rota cases concerned benefices, 8 % other kinds of ecclesiastical issues, 10 % last wills and 5 % property issues, while the rest could be defined as ‘various’ disputes.39 These numbers tell very clearly that almost three ­14th-century Rota cases out of four concerned disputes on benefices, while the proportions of different kinds of other issues remained relatively small. Another kind of source material that presents a clear picture of the jurisdiction of the Rota is the manualia of the Rota. Perhaps the most important source group for studying the activity and jurisdiction of the Sacra Romana Rota is the Manualia Actorum series, which is nowadays kept in the Vatican Apostolic Archives and which contains material from the years 1464–1800.40 The volumes in the manualia series are not attributed to the Rota itself but to individual auditors so that each of the four notaries of the twelve auditors kept a separate manualia in which he recorded the cases entrusted to him. The manualia are not copy books of the tribunal in the classic sense of court records, meaning that all documents and witness’ statements relevant to each case would be noted down in them. Instead, the manualia contain procedural entries in chronological order (day by day) briefly noting what happened each day in different cases. The entries include almost nothing about the details of the cases, about the decision-making process or about the sentence, so that the manualia entries do not allow a close analysis of any one lawsuit and its details. The entries, however, contain enough information about the cases to allow us to understand what kind of litigation was at stake and what the geographical distribution of the provenance of the cases was – and that is extremely valuable information for understanding the jurisdiction of the Rota.41 The analysis of the material in the manualia series42 has also demonstrated that in the 15th and 16th centuries the Rota was mainly a tribunal handling of the Fifth International Congress of Medieval Canon Law, Monumenta Iuris Canonici, Series C: Subsidia 6, Vatican City, 1980, pp. 99–114; Richard Puza, Res iudicata. Rechtskraft und fehlerhaftes Urteil in den Decisionen der Römischen Rota, Grazer Rechts- und Staatswissenschaftliche Studien, 29, Graz, 1973. 39  Dolezalek, Questiones motae, p. 112. When interpreting these numbers, it is important to keep in mind that Dolezalek was able to determine the type of litigation in only one case out of six, sixty-one cases out of the whole corpus of 353 cases. 40  AAV, S. R. Rota, Manualia Actorum, passim. 41  Salonen, Papal Justice, pp. 5–6; Hermann Hoberg, Indice 1057. Sacra Romana Rota. Manualia Actorum et Citationum, Vatican City, s. a.; Hermann Hoberg, Die Protokollbücher der Rotanotare von 1464 bis 1517, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, 39, 1953, pp. 177–227. 42  The following analysis is based on the study of all existing material in the Rota manualia from four sample years, 1466 (275 cases), 1486 (171 cases), 1506 (1,265 cases) and 1526 (1,703 cases), as well as on the manualia of one Rota auditor, Jo-



The Sacra Romana Rota49

litigation concerning benefices, while other kinds of legal issues represented a minority of cases. According to the manualia entries, 80 % of the more than 5,400 Rota cases in the corpus used for this study concerned various kinds of disputes over benefices. These were all disputes between two (or sometimes more) clerics who claimed their rights to the same ecclesiastical position. The cases concerned all kinds of ecclesiastical offices from simple sine cura benefices to positions of parish priests with the cure of souls and to the highest ecclesiastical offices like provostship or archdeaconate in cathedral churches. The second commonest kind of dispute before the Rota seems to have been property litigation, which covered 14 % of all Rota disputes. These cases concerned typically three different kinds of issue: money, immovable or movable property and rights to certain income. Somewhat surprising is the result that marriage disputes, which formed the most common litigation category in the episcopal courts,43 were very rarely taken to the Rota. In fact, according to the manualia entries, marriage disputes covered only 1 % of all Rota cases. In these cases the task of the Rota was to judge whether a contested marriage was valid or void, just as so many local ecclesiastical courts did. The rest of the disputes handled by the Rota, c. 5 % of all cases, were very heterogeneous. These cases include disputes over ecclesiastical authority or prestige, such as the right of patronage or presentation to an ecclesiastical benefice and the right to make ecclesiastical visitations (e. g. of a parish church or monastic house), or the right over ecclesiastical jurisdiction in a certain territory. In some cases there was also a question about disputes deriving from ecclesiastical legislation, such as the right to a burial place or the right to build churches or transfer ecclesiastical institutions from one place to another. Furthermore there are disputes regarding ecclesiastical punishments, the authenticity and validity of papal letters as well as misbehaviour of the clergy.44 A comparison between the information in the decisiones from the 14th century on the one hand and in the manualia from the 15th and 16th centuries on the other hand shows that the jurisdiction and the activities of the Rota did not change significantly during these centuries. For the whole period of its major activity, the tribunal dealt mainly with disputes concerning benefices, hannes de Ceretanis from the years 1471–92 (2,025 cases). The manualia from these years and from Johannes de Ceretanis include roughly 27,000 entries concerning 5,439 Rota cases. AAV, S. R. Rota, Manualia Actorum, 1, 1A, 2, 3, 6, 9, 12–16, 24, 57–68, 139–50, passim. 43  Donahue, Law, Marriage, and Society; Helmholz, Marriage Litigation; Kirsi Salonen, The consistory court of Freising in the late Middle Ages, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, 96, 2010, pp. 226– 257. 44  Salonen, Papal Justice, pp. 99–124.

50

K. Salonen

while other kinds of cases played only a secondary role in its daily activities. The slight increase in cases related to property issues towards the end of the 15th century results most probably from the constitution Finem litibus of Pope Innocent VIII (1488), which extended the powers of the Rota to handle civil litigation of subjects of the Papal States. The absence of certain kinds of disputes in the entries in the Rota manualia also provides evidence of the activity of the Rota in comparison to other supreme courts. For example, the manualia do not include any reference to disputes regarding political issues, neither do they mention any kind of legislative activities. This is clear testimony to the fact that the Rota was judging legal issues entrusted to it according to the regulations of canon law, and sometimes also civil law, but it was certainly not a legislative body. The Rota sources also demonstrate that unlike other European supreme courts, the Rota had no means to control the execution of its decisions. If the local authorities were unwilling or unable to execute the sentences of the Rota, the tribunal had no tools (other than the sentence of excommunication, often used in the late Middle Ages but in many ways ineffective) to force the unwilling locals to comply. The entries in the Rota manualia demonstrate how the activity of the Rota was based on the principles of Romano-canonical procedure and how practice in the tribunal followed the requisite norms. Although the regulations of canon law formed the basis for the activity and decision-making of the Rota, the canon law rules were too general to fully describe the various phases in specific cases. Therefore there existed manuals and guidebooks that described the procedure and its phases in more detail and offered help in practical matters. These manuals, which were meant generally for the use of all ecclesiastical tribunals, were called for example ordines iudiciarii, libelli de ordine iudiciorum or other similar names.45 There also existed special guidebooks for the Rota, which described how the different types of litigation were supposed to proceed and what they entailed. These works are very important for understanding how Rota cases were litigated in practice. The comparison of the description of various types of litigation in these works with the Rota sources demonstrates how the Rota observed very carefully all the different phases, termini, during litigation and how these phases correspond well with the practice defined in Romano-canonical procedure.46 45  Ingesman, Provisioner og processer, pp.  157–160; Salonen, Papal Justice, pp. 8–9, 42–43. 46  Ingesman, Provisioner og processer, pp.  161–162; Salonen, Papal Justice, pp. 43–47.



The Sacra Romana Rota51

All Rota cases began with a petition to the pope. In the petition, the plaintiff explained his legal issue and justified legally his request to have his case handled by the Rota. One of the most common justifications used in the petitions was that the plaintiff could not get just justice locally because his adversary was too powerful and hence the local court could not make impartial decisions. If the pope – or the vice-chancellor to whom this task was entrusted from the 1330s until 1492, when the task was transferred to one of the papal offices, the Signatura justitiae (discussed further below) – found the petition correct and agreeable, he took a positive decision, signed the petition and referred the handling of the case to one of the Rota auditors. With the signature of the decision-maker, the original petition turned into a legal document called a commission (commissio causae). This document was thereafter carried by a papal messenger (cursor) to the auditor to whom the handling of the case was entrusted.47 The handling of the case began immediately after the chosen auditor had received the commission. The auditor appointed one of his notaries to be responsible for the case until the end. The task of the notary was to take care of the relevant documents, to ensure that the documentation was copied into the copybooks and to compose the necessary documents during the different phases of the process. The first task of the notary was to copy the content of the commission into the acta of the case. This was noted down in the manualia. When these practical matters had been taken care of, the handling of litigation in the Rota began by summoning the parties before the auditor for agreeing upon the terms of litigation.48 The procedure followed carefully the various phases or terms of different forms of action defined in the Romano-canonical procedure.49 The number of necessary phases varied somewhat according to what kind of litigation was at stake because certain kinds of litigation could follow the phases of the shorter summary procedure. For example, litigation concerning benefices consisted typically of ten different phases of which each had its own predefined duration. One procedural phase did not necessarily mean only one hearing before the auditor but a phase – for example the phase of interrogating witnesses – could consist of several hearings and last for a considerable period of time. The most voluminous materials upon which this essay is based consist of over one hundred manual entries.50

47  Ingesman,

Provisioner og processer, p. 162; Salonen, Papal Justice, pp. 47–49. Papal Justice, p. 47. 49  The different phases are described fully in Ingesman, Provisioner og processer, pp. 161–169. 50  Salonen, Papal Justice, pp. 161–163. 48  Salonen,

52

K. Salonen

When all phases of the procedure from the first term called terminus ad dicendum contra commissionem (= term for declaring against the commission) were over and the auditor had heard both litigating parties and their witnesses, he could proceed to the last phase of the lawsuit, namely its closing. If the auditor considered the resolving of the case to be difficult, he could consult his peers before he made his final decision. For the consultation, the responsible auditor composed a short summary of the case called ponens, which his colleagues studied carefully for their common discussion. The consultation could end with voting about the decision and the responsible auditor had to respect the opinion of the majority. When the auditor had made his decision, he summoned the litigants to the last hearing in the lawsuit called terminus ad audiendum et videndum diffinitivam in dicta causa ferri sententiam (= term for hearing and seeing the definitive sentence in the said case) during which the auditor officially pronounced the sentence. If none of the litigants objected, the case was closed and the sentencia transit in rem iudicatam.51 If the party who lost the case did not want to give up, he had two possibilities. He could either file an appeal (appellation) or if there was some formal error in the sentence, he could contest it (querela nullitatis). In both cases the lawsuit could be reconsidered only after a petition for that purpose had been presented to and approved by the pope or his representative. Popes usually approved all such petitions if they were formally correct, and the process could continue when the new commission of the case was handed over to the auditor to whom the pope had decided to entrust the case. An appeal could not be heard by the same auditor who had previously heard the case. The ideal was to entrust the appeal to more experienced auditors. In one case it was possible to appeal twice. The third sentence pronounced by the Rota was considered final.52 The Rota sources give us a picture of a tribunal, which handled cases according to the Romano-canonical procedure exactly as it should do. At the same time, a closer analysis of the Rota sources reveals a number of points indicating that the tribunal was not very effective in its activities. First, the manualia entries show that a large part of Rota cases were not carried on up to the closing of the case. Indeed, a large number of Rota cases (70 %) were dropped at very early stages of the procedure. This is not a surprising result when it is compared to the practice of other ecclesiastical – and secular – courts, where a large number of cases never reached the final stage simply because the litigants reached an agreement outside the courtroom and dropped the case. This result, however, was somewhat surprising in the con51  Ingesman, 52  Ingesman,

Provisioner og processer, pp. 167–168. Provisioner og processer, pp. 169; Salonen, Papal Justice, pp. 54–55.



The Sacra Romana Rota53

text of earlier Rota scholarship because the Rota has typically been described as an ineffective tribunal where the corrupt auditors did not do their job because of which poor litigants had to wait for years, sometimes for decades, before their case was closed, if ever. Recent studies about the Rota have shown, however, that the ineffectiveness of the tribunal was not only caused by the personnel of the tribunal but that litigants also had their fair share in it. Sources from the 15th and 16th centuries demonstrate that some plaintiffs simply initiated the lawsuit in order to intimidate their adversaries and if they succeeded in this, they dropped the case as soon as they had gained what they wanted.53 A second observation about the ineffectiveness of the Rota is related to the execution of the sentences of the Rota at the local level. As said before, the tribunal had very little means to ensure that its decisions were executed locally. The only way for the Rota to enforce its sentences was to threaten with excommunication those who refused to collaborate and obey. But since the power of excommunication as effective punishment had decreased in the late Middle Ages due to its excessive use for misguided, often political or personal, purposes, threatening it no longer effectively guaranteed the desired outcome.54 This can also be seen in the Rota sources. It is plausible that the large rate of abandoned cases reflects the distrust of litigants in reaching their goal through litigation. The Rota archives contain examples of litigation concerning benefices, in which it becomes evident that the plaintiff who was fighting for a certain benefice against a local strong opponent simply dropped the case after he eventually realised that even if the sentence of the Rota would be favourable to him, the local authorities would never execute it.55 Finally, Rota cases could also be left unresolved at their conclusion because the ecclesiastical norms of procedure allowed the litigants to file an appeal even before the final judgement. It was possible to appeal against any interlocutory decree made by an auditor. This had the consequence that the handling of the case could be transferred almost at any point to the authority of another auditor because of an appeal. It is impossible to judge from the Rota sources how frequent this kind of practice was but in principle, if the litigants made frequent appeals, the case could be transferred from one audi53  Salonen,

Papal Justice, pp. 155–168. Dolezalek, Reports of the ‘Rota’ (14th–19th centuries), in: John H. Baker (ed.), Judicial Records, Law Reports, and the Growth of Case Law, Berlin, 1989, pp. 69–99 at 70. 55  A good example of this is the case of Henricus Meyer, a German priest and curialist who aimed at receiving the position of a parish priest in Finland, where the local authorities did not want to accept a foreigner. Salonen, Papal Justice, pp. 82–96. 54  Gero

54

K. Salonen

tor to another and on to another and so on – with the consequence of long lawsuits, which might never end.56 Even if the Rota did not wholly succeed in dispensing justice on behalf of the papacy because of the above-mentioned problems, its activity had farreaching consequences for European legal culture. The most important reason for this was the decisiones of the 14th-century Rota auditors, which form a unique source material for European legal history. Contrary to what might be assumed, the decisiones do not contain sentences pronounced by the tribunal but rather deliberations of the Rota auditors before taking decisions in different kinds of cases. These deliberations and explanations have significantly affected decision-making in various other European tribunals because the decisiones, originally meant for the internal use of the Rota only, began to spread around Europe, especially after the invention of book printing at the end of the 15th century. The Rota decisiones were soon used as models according to the principles of which local courts began to make their decisions.57 Thereby it is not wrong to call the Rota one of the most influential tribunals of the late medieval and early modern world. Furthermore it is arguable, even if there are no direct sources telling about such a practice, that the ecclesiastical tribunals at the local level were also following the principles of the Rota when they took decisions, because the local courts were typically part of the process of executing locally the sentences pronounced by the Rota auditors. 4. The role of the Rota in the papal administration In the late Middle Ages, the supreme leaders of the Catholic Church were the Council and the Pope. Since Church Councils were not summoned frequently, the pope was in practice the main responsible authority for administering and leading the Church. As the supreme leader of the Catholic Church, the pope possessed full powers (plenitudo potestatis) to deal with issues related to the Church or Christians, be they administrative, legal, theological or even practical issues of the everyday life of the faithful. The only limitation to the papal powers was that the pope could not make decisions that were in conflict with the Holy Scriptures or ecclesiastical norms stipulated by the Councils. Taking care of ecclesiastical jurisdiction and legislation was an important part of the papal responsibilities and therefore the Rota was an essential part of the papal system of administration.58 56  Dolezalek,

Reports of the ‘Rota’, p. 70. and Nörr, Die Rechtsprechungssammlungen. See also Dolezalek, Die handschriftliche Verbreitung; Dolezalek, Questiones motae; Puza, Res iudicata. 58  Dolezalek, Reports of the ‘Rota’, p. 69; Salonen, Papal Justice, p. 13. 57  Dolezalek



The Sacra Romana Rota55

In principle, the pontiff as the head of the Church could make decisions independently without consulting anyone. In practice, however, the pope usually consulted the cardinals close to him before taking important decisions. The central administration of the Catholic Church took place in regular meetings between the pope and the collegium of cardinals in the curia. These meetings were called the ‘consistory’ and all cardinals residing in the papal curia were supposed to take part in them. Since the issues referred to the authority of the pontiff were too numerous, by the high Middle Ages, the consistory no longer discussed routine cases but it rather concentrated on the more important issues such as creating new cardinals, appointing bishops or resolving crucial political conflicts with European monarchs. In principle legal issues did not belong any longer to the activity of the consistory, but if the pope considered a dispute as a causa maior, the consistory could nevertheless take the case to itself.59 In the Middle Ages, the everyday business of the Church was carried out in various curial offices, which stood at the service of Christians from all over the Christian West. The curial administration – except for its financial side – functioned so that Christians who desired something from the curia turned to the pope with a request (supplicatio). These requests could concern several different kinds of matters, from appointments to ecclesiastical offices, granting various privileges, absolutions, dispensations or licences, to handling litigation with papal authority. The petitions were always addressed to the Holy Father but in practice the cases were normally handled by officials of various offices of the papal curia without bringing the issues to the attention of the pontiff. Each papal office had its special branch of responsibility within the central administration of the Church. Each office was typically led by a prelate, often of the rank of cardinal, who supervised the functioning of his subordinates. The employees of various papal offices consisted of officials with various tasks: scribes or notaries writing documents, procurators and messengers serving documents and information from one place to another, abbreviators, taxators and sealers participating in the preparation and expedition of the papal letters as well as regents, auditors or other persons with decision-making powers.60 The most central office for the economic administration of the papacy was the Apostolic Chamber (Camera apostolica). The Chamber, whose historical roots can be traced back at least as far as the 10th century, worked under the guidance of the chamberlain (camerarius), one of the most powerful prelates 59  Salonen, 60  Salonen,

Papal Justice, p. 13. Papal Justice, p. 13.

56

K. Salonen

in the papal curia with the rank of cardinal. The officials of the Chamber took care of the income and expenses of the curia and were responsible for book-keeping. The Chamber was not only entrusted with controlling the papal economy. It also had powers to dispense justice in controversies related to the activity of the Chamber, no matter whether these raised civil or criminal questions. For this purpose, the Chamber employed a special official, the Chamber auditor (auditor camerae), who was responsible for handling legal issues.61 The Chamber auditor handled issues entrusted to his authority in a manner analogous to that of the Rota auditors. The competence of the Chamber auditor included not only control of such economic concerns of the papacy as the malversations of papal collectors sent all over Christendom, but also other areas of the authority of the Chamber such as public safety in the papal city or the misconduct of personnel of the papal curia. He could thus pronounce sentences for clerics in Rome, for example, who had been involved in criminal acts or had assaulted someone. Additionally, the Chamber auditor could prosecute persons who were suspected of lying or using false testimonies while litigating in other curial tribunals such as the Rota.62 In principle, the Chamber auditor handled first instance cases, while appeal cases were entrusted to the authority of the chamberlain. After the reorganization of the roles in the Chamber under Pope Martin V, appeal cases were handled by a special tribunal established within the Apostolic Chamber called the Audientia camera. The members of this tribunal consisted of the most eminent members of the Chamber. The Apostolic Chancery (Cancelleria apostolica) was another central curial office and the oldest of them all, dating back to the fifth or maybe even the fourth century. It was responsible for all practical aspects of papal administration. Originally, the main function of its officials was to compose letters issued in the name of the pope, but after the curial reorganization in the 12th and 13th centuries, its task was to take care of the multiple everyday practicalities of the ecclesiastical administration. Under the guidance of the 61  Concerning the activity and powers of the Apostolic Chamber, Adolf Gottlob, Aus der Camera Apostolica des 15. Jahrhunderts. Ein Beitrag zur Geschichte des päpstlichen Finanzwesens und des endenden Mittelalters, Innsbruck, 1889; Paul Maria Baumgarten, Aus Kanzlei und Kammer. Erörterungen zur kurialen Hof- und Verwaltungsgeschichte im XIII., XIV. und XV. Jahrhundert, Freiburg im Br., 1907; Guglielmo Felici, La Reverenda Camera Apostolica. Studio storico-giuridico, Vatican City, 1940; Del Re, La Curia Romana, pp. 285–297. About the tribunal of the Apostolic Chamber, see Emil Göller, Der Gerichtshof der päpstlichen Kammer und die Entstehung des Amtes des procurator fiscalis im kirchlichen Prozessverfahren, in: Archiv für katholisches Kirchenrecht, 94, 1914, pp. 605–619. 62  Göller, Der Gerichtshof; Ingesman, Provisioner og processer, p. 382.



The Sacra Romana Rota57

head of the chancery, the vice-chancellor (vicecancellarius),63 the officials of the chancery took care of all papal correspondence: they prepared papal letters, sealed them and supervised their delivery to the addressees. The officials of the chancery were also responsible for keeping the papal archives but, in addition to these practical matters, they could grant certain types of dispensations and privileges to Christians.64 The activities of the chancery were intertwined with the activity of the Rota. By the 1380s at the latest, the vice-chancellor had obtained from the pope the powers to decide whether a case could be accepted to be handled by the Rota and to assign the accepted cases to the authority of one of the Rota auditors. In practice these powers allowed the vice-chancellor to monitor the activity of the tribunal, but he did not have powers to interfere with the decisions taken by the auditors in individual cases.65 This practice lasted until 1491, when Pope Innocent VIII separated from the chancery a section called the Signatura iustitiae. The pope entrusted to this newly established office the task of studying the petitions regarding legal cases and of deciding whether litigation would be handled by the Rota. It could also decide to which of the Rota auditors the cases should be referred. In addition to these activities, the officials of the Signatura iustitiae were entrusted with the task of monitoring the activity of the Rota.66 The Apostolic Dataria (Dataria apostolica), too, was separated from the chancery, but already during the pontificate of Martin V in the 1420s. As one 63  There was no chancellor in the late Middle Ages. Originally the cardinal leading the office was called the chancellor and his subordinate the vice-chancellor, but after Pope Honorius III decided in 1227 that the head of the chancery did not have to be of the rank of a cardinal, the head of the office was called ‘vice-chancellor’. This title remained in use until 1325, when Pope John XXII decided to entrust the office again to one of the cardinals. Del Re, La Curia Romana, pp. 437–438. 64  Concerning the activity and powers of the Apostolic Chancery, Baumgarten, Aus Kanzlei und Kammer; Paul Maria Baumgarten, Von der Apostolischen Kanzlei. Untersuchungen über die päpstlichen Tabellionen und die Vizekanzler der Heiligen Romischen Kirche im XIII., XIV. und XV. Jahrhundert, Görres-Gesellschaft zur Pflege der Wissenschaft im katholischen Deutschland, Sektion für Rechts- und Sozialwissenschaft, 4, Cologne, 1908; Christopher R. Cheney, The Study of the Medieval Papal Chancery, Glasgow, 1966; Del Re, La Curia Romana, pp. 435–446. 65  Killermann, Die Rota Romana, pp. 78–79. 66  Concerning the activity and functioning of the Signatura iustitiae, see Richard Puza, Signatura iustitiae und commission. Ein Beitrag zum Prozeßgang an der römischen Kurie in der Neuzeit, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, 64, 1978, pp. 95–115; Richard Puza, Rescriptum und Commissio. Die Entscheidung der Signatura iustitiae im 16. und 17. Jahrhundert, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, 66, 1980, pp. 354–370.

58

K. Salonen

may deduce from its name, this office presumably had its origins in an official of the chancery called the datarius, whose task it was to date the incoming and outgoing letters in the curia. After the Dataria became an independent office, its officials acquired more and more responsibilities. They were the first to receive almost all petitions directed to the pope and their task was to examine the content of the requests. The only exceptions to this were the letters handled by the Apostolic Penitentiary as well as the requests to have one’s case handled by the Rota, which were received by the officials of the Penitentiary and the vice-chancellor/Signatura justitiae respectively. The rest of the petitions to the pope went through the hands of the officials of the Dataria, who ensured that the content of the petitions was canonically correct and that the papal letter composed afterwards had the right form; not to mention the task of presenting the petitions to the pope for his approval. These were important tasks, because a defect in the wording of a papal letter could lead to the complete invalidation of the whole letter and thereby to disputes and possibly even to litigation. From the 1480s onwards, the officials of the Dataria received further powers that allowed them to grant Christians various types of dispensations, licences and privileges.67 Pastoral care was one of the most essential tasks of the Church, and there was a separate office at the papal curia for taking care of the souls of Christians who had committed a crime or sin against ecclesiastical norms – or who wished a special papal permit allowing them to do so in certain matters. This office was the Apostolic Penitentiary (Poenitentieria apostolica), whose officials had the power to grant Christians (1) absolutions from particularly grave sins typically reserved to the papal authority, (2) dispensations allowing them to act against the norms of canon law, (3) special licences allowing them to relax the normal rules for following Christian teaching in daily life, such as to confess to someone other than the parish priest, to eat meat and dairy products during Lent or to make pilgrimages to lands controlled by Muslims, and (4) special declarations testifying that a person was not guilty of murder or that a previously undertaken monastic profession or contracted marriage was not valid.68 Nowadays, the Penitentiary is considered as one of 67  Concerning the activity and powers of the Apostolic Dataria, Del Re, La Curia Romana, pp. 447–449; Léonce Celier, Les Dataires du XVe siècle et les origines de la Daterie Apostolique, Bibliothèque des Écoles françaises d’Athènes et de Rome, 103, Paris, 1910; Nicola Storti, La storia e il diritto della dataria apostolica dalle origini ai nostri giorni. Contributi alla storia del diritto canonico – nuova serie di studi storicogiuridici, Naples, 1968. 68  Concerning the activity and powers of the Apostolic Penitentiary, Emil Göller, Die päpstliche Pönitentiarie von ihrem Ursprung bis zu ihrer Umgestaltung unter Pius V, Bibliothek des Königlich Preußischen Historischen Instituts in Rom, 3, 4, 7, 8, Rome, 1907, 1911; Ludwig Schmugge/Patrick Hersperger/Béatrice Wiggenhauser, Die Supplikenregister der päpstlichen Pönitentiarie aus der Zeit Pius’ II. (1458–1464),



The Sacra Romana Rota59

the tribunals of the Holy See, but in the Middle Ages it was not a tribunal handling litigation but an office granting petitioners different kinds of grace. The activities of the Rota and the Penitentiary intersected in a few cases. Firstly, if the Penitentiary had to handle particularly tricky cases – typically requests for a declaration of innocence for a clergyman who had involuntarily been involved in death or mutilation of a person – which required special legal understanding, they often consulted one of the Rota auditors, who thus acted as a legal expert for the Penitentiary. Secondly, sometimes documents issued by the Penitentiary could be used as testimonies before the Rota. For example a marriage dispensation from the Penitentiary could be treated as proof of the validity of a marriage contested because of an impediment.69 In addition to the above mentioned offices, two tribunals functioned in the papal curia. One of them was the Sacra Rota Romana itself, officially known as the Audientia sacri palatii and the other was the Audientia litterarum contradictarum. The competence of the Audientia litterarum contradictarum included all kinds of different problems regarding litigation in ecclesiastical courts. This tribunal was mainly the place to which Christians could turn if, for example, they had problems with the question who could pronounce sentences locally in those cases in which the litigants or one of them had applied to the pope in order to transfer the handling of the case from one jurisdiction to another or from one person to another. If the permit granted by the pope for transferring the case endangered the rights of the other litigant, he could defend his rights to a just trial by appealing to the Audientia litterarum contradictarum.70 The competences of the Rota and the Audientia litterarum contradictarum could overlap in certain situations. For example this could happen in cases when a litigant in a Rota suit appealed to the pope in order to get his case handled by someone other than the appointed Rota auditor, Bibliothek des Deutschen Historischen Instituts in Rom, 84, Tübingen, 1996; Kirsi Salonen, The Penitentiary as a Well of Grace in the Late Middle Ages. The Example of the Province of Uppsala, 1448–1527, Suomalaisen Tiedeakatemian Toimituksia – Annales Academiae Scientiarum Fennicae, 313, Helsinki, 2001; Kirsi Salonen/Ludwig Schmugge, A Sip from the ‘Well of Grace’. Medieval Texts from the Apostolic Penitentiary, Washington D.C., 2009. 69  Kirsi Salonen, Vom Nutzen päpstlicher Dispense vor lokalen gerichten. Beispiele aus der päpstlichen Pönitentiarie, in: Andreas Meyer (ed.), Kirchlicher und religiöser Alltag im Spätmittelalter, Akten der internationalen Tagung in Weingarten, 4.–7. Oktober 2007. Schriften zur südwestdeutschen Landeskunde, 69, Ostfildern, 2010, pp. 249–258. 70  Concerning the activity and powers of the Audientia Litterarum Contradictarum, see Peter Herde, Audientia litterarum contradictarum. Untersuchungen über die päpstlichen Justizbriefe und die päpstliche Delegationsgerichtsbarkeit vom 13. bis zum Beginn des 16. Jahrhunderts, I–II, Bibliothek des Deutschen Historischen Instituts in Rom, 31–32, Tübingen, 1970.

60

K. Salonen

but the other party was opposed to this. Such a controversy could lead to litigation before the Audientia litterarum contradictarum which established where the litigation should continue. The competencies of the Rota thus overlapped somewhat with the authorities of the other papal offices and tribunals but in principle it made decisions independently without interference from any of them. When talking about the papal hierarchy of administration it is, though, important to keep in mind that the papal plenitude of power made it always possible to appeal to the pope so that he would personally make the decision in a case. This could happen if the pope considered the case interesting and important enough, or if he wanted to grant a personal favour to someone he considered highly. In these cases the usual curial hierarchy was overruled. In addition to being part of the curial system of ecclesiastical administration, the Rota was part of the ecclesiastical system of justice which spread down from the curia to the diocesan level. As said previously, the Rota functioned as tribunal of appeal for any Christian who was not content with the outcome of his or her case at a local ecclesiastical court. As the highest ecclesiastical court of appeal, the Rota was considered as the ‘tribunal of tribunals’ within the Catholic world. The study of the provenance of Rota cases has shown that this characterisation was correct because individuals from all over Christendom turned to the authority of the tribunal. The sample material used in this study shows that most Rota cases originated from Italy (31 %), followed by cases from the Iberian Peninsula (28 %). Slightly fewer but still numerous cases originated from the Holy Roman Empire (20 %) and France (18 %), while from Eastern Europe (2 %) and the British Isles (1 %) there are only a few cases, not to mention Scandinavia with only a handful of cases (barely above 0 %). On the basis of these numbers it is possible to conclude that most of the Rota cases originated from territories situated not too far away from the centre of ecclesiastical administration in Rome. This is not a surprise, since these four territories were also the most densely populated and thereby it is understandable that more cases originated from these territories.71 A similar trend has been noticed when studying the geographical origin of the clients of the Apostolic Penitentiary from the same time period.72 Even if there were clearly fewer cases from the more remote Christian territories like Scandinavia, Poland or Scotland, these territories were nevertheless represented among the Rota cases. This means that the powers of the tribunal were known and acknowledged in these less represented territories 71  Salonen, 72  Salonen

Papal Justice, pp. 125–154. and Schmugge, A Sip from the Well of Grace, pp. 21–68.



The Sacra Romana Rota61

too. But it is understandable that Christians living far away from the papal curia did not necessarily begin an expensive court action at the curia if they did not have a very important reason for doing so. Conclusions The birth of the Sacra Romana Rota was part of a larger development that took place within the papal administration beginning already in the 12th century but which came to fruition during the Avignon papacy in the 14th century. This administrative development was contemporary with the legislative development within the Catholic Church. Being a result of this development means in the case of the Rota that it was not created on a specific day or as consequence of a certain papal constitution. The powers and activities of the tribunal developed instead little by little from the activity of judicially-engaged cardinals around the pope into a real tribunal with twelve appointed high-level jurists – auditors – who dispensed justice on behalf of the pontiff. Another significant period in the history of the Rota was the period of Conciliarism, when the Church Councils aimed at reforming the church and its administration – the Rota included. In the spirit of the councils, Pope Innocent VIII reformed the Rota in 1488 and added to its competence the right to handle civil cases of litigants originating from the Papal States. Unlike many other high courts in Europe, the Rota did not participate in legislative work at all. The Rota auditors made decisions in the spirit of canon – and sometimes also civil – law but the decisions of the auditors never developed into new ecclesiastical legislation or resulted in altering the old regulations of canon law. This also reflects the fact that post-1350 changes in ecclesiastical legislation were typically promulgated in the form of papal constitutions or chancery regulations, mainly through the Apostolic Chancery. These regulations were never codified into a new law-book which would have completed the earlier parts of the Corpus Iuris Canonici. The 1488 constitution Finem litibus was the first to significantly add to the jurisdiction of the Rota since the early years of the tribunal. The comparison of the content of Rota cases in the 14th, 15th and 16th centuries demonstrates that the Rota mainly dealt with litigation concerning benefices throughout the Middle Ages. Its other competences allowed it to handle property litigation, marriage disputes as well as other kinds of often more ‘profane’ issues. The effect of the Finem litibus constitution can be seen in an increase in the number of civil cases originating from the Papal States, but this constitution did not change the fundamental role of the Rota as a tribunal in litigation concerning benefices originating from all over Christendom. The jurisdiction of the Rota itself seems to have developed and been exercised without juris-

62

K. Salonen

dictional conflict being apparent – mainly because the Rota did not create or develop papal legislation but simply followed regulations stipulated by the pontiffs. An analysis of the provenance of Rota cases demonstrated that the powers of the tribunal were recognized and used by litigants from the whole territory of the Latin West, even though the majority of the cases originated from the densely populated territories in the central areas of Christendom: Italy, the Iberian Peninsula, Germany and France. Using the Rota as a tribunal of appeal in cases originating from every corner of Christendom is clear testimony of the fact that Christians everywhere knew and used the powers of the Rota. But was the Rota successful in dispensing justice for its clients? Scholars writing at an earlier stage about the Rota have stated that it was a very ineffective tribunal, partly because of corrupt judges and partly because of the inefficient system of justice in the papal curia which gained money by delaying hearing cases. The Rota sources have revealed, however, that this is not the whole truth. The auditors seem to have handled the cases entrusted to them relatively effectively and respected the different intervals established in Romano-canonical procedural law. At the same time, the sources demonstrate that a large share of the cases was never carried through to a final end and the sources point to a few explanations for this phenomenon. Firstly the inefficiency of the Rota in executing its sentences might have led to the fact that some litigants simply dropped the case when they realized they had no chance in obtaining locally what they wished. Secondly litigants might have reached an agreement outside the courtroom, which is a well-known practice all over medieval Europe. Thirdly ecclesiastical legislation allowed Rota litigants to delay cases by appealing even before the closing of the case. Partly these reasons result from loopholes in ecclesiastical legislation but it was always the litigants themselves who decided to exploit them. Despite its lack of effectiveness and the absence of a legislative role, the Rota has been one of the most influential tribunals in the medieval and early modern world. The influence of the Rota did not result from its effectiveness but from the fact that its legal deliberations, decisiones, were spread and used as a model for other European (supreme) tribunals that began to develop in the period of the 15th and early 16th centuries, when the significance of the Rota was at its height. Bibliography Alberigo, G. et al. (eds.), Conciliorum Oecumenicorum Decreta, 3rd ed., Bologna, 1973.



The Sacra Romana Rota63

Baumgarten, P. M., Aus Kanzlei und Kammer. Erörterungen zur kurialen Hof- und Verwaltungsgeschichte im XIII., XIV. und XV. Jahrhundert, Freiburg im Breisgau, 1907. Baumgarten, P. M., Von der Apostolischen Kanzlei. Untersuchungen über die päpst­ lichen Tabellionen und die Vizekanzler der Heiligen Romischen Kirche im XIII., XIV. und XV. Jahrhundert, Görres-Gesellschaft zur Pflege der Wissenschaft im katholischen Deutschland, Sektion für Rechts- und Sozialwissenschaft, 4, Köln, 1908. Brundage, J. A., Law, Sex, and Christian Society in Medieval Europe, Chicago, 1987. Celier, L., Les Dataires du XVe siècle et les origines de la Daterie Apostolique, Bibliothèque des Écoles françaises d’Athènes et de Rome, 103, Paris, 1910. Cerchiari, E., Capellani Papae et Apostolicae Sedis Auditores causarum sacri palatii apostolici seu Sacra Romana Rota ab origine ad diem usque 20 septembris 1870. Relatio historica-iuridica., Vol. I: Relatio; Vol. II: Syntaxis Capellanorum Auditorum; Vol. III: Documenta; Vol. IV: Formae et Indices, Rome, 1919–1921. Cheney, C. R., The Study of the Medieval Papal Chancery, Glasgow, 1966. Colombe, G., Au palais des papes d’Avignon. Recherches critiques et archéologiques. XXI. La ‘rota’ de la Grande Audience, Paris, 1921. Colombe, G., A propos de la ‘rota’ de l’Audience au Palais d’Avignon, Marseille, 1926. Colombe, G., Au palais des papes d’Avignon. Nouvelles recherches critiques et archéologiques. XXIII. Le quartier de l’auditeur général, Paris, 1941. Del Re, N., La Curia Romana: lineamenti storico-giuridici, Quarta edizione aggiornata ed accresciuta. Sussidi eruditi 23, Rome, 1998. Dolezalek, G., ‘Die handschriftliche Verbreitung von Rechtsprechungssammlungen der Rota’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, Vol. 58, 1972, 1–106. Dolezalek, G., ‘Questiones motae in Rota. Richterliche Beratungsnotizen aus dem 14. Jahrhundert’, in: Kuttner, S./Pennington, K. (eds.), Proceedings of the Fifth International Congress of Medieval Canon Law, Monumenta Iuris Canonici, Series C: Subsidia 6, Vatican City, 1980, 99–114. Dolezalek, G., ‘Reports of the “Rota” (14th–19th centuries)’, in: Baker, J. H. (ed.), Judicial Records, Law Reports, and the Growth of Case Law, Berlin, 1989, p. 69–99. Dolezalek, G./Nörr, K. W., ‘Die Rechtsprechungssammlungen der mittelalterlichen Rota’, in: Coing, H. (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, Vol. I, München, 1973, 847–856. Donahue, Jr. Ch., Law, Marriage, and Society in the Later Middle Ages. Arguments About Marriage in Five Courts, Cambridge, 2007. Erler, G. (ed.), Der Liber cancellariae apostolicae vom Jahre 1380 und der Stilus palatii abbreviatus Dietrichs von Nieheim, Leipzig, 1888.

64

K. Salonen

Felici, G., La Reverenda Camera Apostolica. Studio storico-giuridico, Vatican City, 1940. Göller, E., Die päpstliche Pönitentiarie von ihrem Ursprung bis zu ihrer Umgestaltung unter Pius V, Bibliothek des Königlich Preußischen Historischen Instituts in Rom, 3, 4, 7, 8, Rome, 1907–1911. Göller, E., ‘Der Gerichtshof der päpstlichen Kammer und die Entstehung des Amtes des procurator fiscalis im kirchlichen Prozessverfahren’, Archiv für katholisches Kirchenrecht, Vol. 94, 1914, 605–619. Gottlob, A., Aus der Camera Apostolica des 15. Jahrhunderts. Ein Beitrag zur Geschichte des päpstlichen Finanzwesens und des endenden Mittelalters, Innsbruck, 1889. Helmholz, R. H., Marriage Litigation in Medieval England, London, 1974. Herde, P., Audientia litterarum contradictarum. Untersuchungen über die päpstlichen Justizbriefe und die päpstliche Delegationsgerichtsbarkeit vom 13. bis zum Beginn des 16. Jahrhunderts I–II, Bibliothek des Deutschen Historischen Instituts in Rom, 31–32, Tübingen, 1970. Hoberg, H., Indice 1057. Sacra Romana Rota. Manualia Actorum et Citationum, Vatican City, s. a. Hoberg, H., ‘Die Protokollbücher der Rotanotare von 1464 bis 1517’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, Vol. 39, 1953, 177–227. Ingesman, P., Provisioner og processer. Den romerske Rota og dens behandling af danske sager i middelalderen, Århus, 2003. Killermann, S., Die Rota Romana. Wesen und Wirken des päpstlichen Gerichtshofes im Wandel der Zeit. Adnotationes in ius canonicum, 46, Frankfurt am Main, 2009. Linden, P., Der Tod des Benefiziaten in Rom. Eine Studie zu Geschicte und Recht der päpstlichen Reservationen. Kanonistische Studien und Texte, 14, Bonn, 1938. Meyer, A., Zürich und Rom. Ordentliche Kollatur und päpstliche Provisionen am Frau- und Grossmünster, 1316–1523, Bibliothek des Deutschen Historischen Instituts in Rom, 64, Tübingen, 1986. Paravicini Bagliani, A., ‘Il Registrum causarum di Ottaviano Ubaldini e l’amministrazione della giustizia alla Curia Romana nel secolo XIII’, in: Gatz, E. (ed.), Römische Kurie. Kirchliche Finanzen. Vatikanisches Archiv. Studien zu Ehren von Hermann Hoberg II. Miscellanea Historiae Pontificiae, 46, Rome, 1979, 635–657. Puza, R., Res iudicata. Rechtskraft und fehlerhaftes Urteil in den Decisionen der Römischen Rota, Grazer Rechts- und Staatswissenschaftliche Studien, 29, Graz, 1973. Puza, R., ‘Signatura iustitiae und commission. Ein Beitrag zum Prozeßgang an der römischen Kurie in der Neuzeit’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, Vol. 64, 1978, 95–115.



The Sacra Romana Rota65

Puza, R., ‘Rescriptum und Commissio. Die Entscheidung der Signatura iustitiae im 16. und 17. Jahrhundert’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, Vol. 66, 1980, 354–370. Salonen, K., The Penitentiary as a Well of Grace in the Late Middle Ages. The Example of the Province of Uppsala, 1448–1527, Suomalaisen Tiedeakatemian Toi­ mituksia – Annales Academiae Scientiarum Fennicae, 313, Helsinki, 2001. Salonen, K., ‘The consistory court of Freising in the late Middle Ages’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, Vol. 96, 2010, 226–257. Salonen, K., ‘Vom Nutzen päpstlicher Dispense vor lokalen gerichten. Beispiele aus der päpstlichen Pönitentiarie’, in: Meyer, A. (ed.), Kirchlicher und religiöser Alltag im Spätmittelalter. Akten der internationalen Tagung in Weingarten, 4.–7. Oktober 2007, Schriften zur südwestdeutschen Landeskunde, 69, Ostfildern, 2010, 249–258. Salonen, K., Papal Justice in the Late Middle Ages: The Sacra Romana Rota. Church Faith and Culture in the Medieval West, Abingdon, 2016. Salonen, K./Schmugge, L., A Sip from the ‘Well of Grace’. Medieval Texts from the Apostolic Penitentiary, Washington D.C., 2009. Schmugge, L./Hersperger, P./Wiggenhauser, B., Die Supplikenregister der päpstlichen Pönitentiarie aus der Zeit Pius’ II. (1458–1464), Bibliothek des Deutschen Historischen Instituts in Rom, 84, Tübingen, 1996. Schwarz, B., ‘Statuta sacri causarum apostolici palacii auditorum et notariorum. Eine neue Quelle zur Geschichte der Rota Romana im späten Mittelalter’, in: Helmrath, J./Müller, H./Wolff, H. (eds.), Studien zum 15. Jahrhundert. Festschrift für Erich Meuthen II, Munich, 1994, 845–867. Storti, N., La storia e il diritto della dataria apostolica dalle origini ai nostri giorni. Contributi alla storia del diritto canonico – nuova serie di studi storico-giuridici, Napels, 1968. Tangl, M. (ed.), Die päpstliche Kanzleiordnungen von 1200 bis 1500, Innsbruck, 1894. Tomassetti, L. et al. (eds.), Bullarium Romanum. Bullarium diplomatum et privilegiorum sanctorum romanorum pontificum Taurinensis edition. Tomus V ab Eugenio IV (an. MCCCCXXXI) ad Leonem X (an. MDXXI), Turin, 1860.

N. G. JONES

The English Court of Chancery This contribution considers the origins and nature of the English court of Chancery in the period 1200 to 1700, with a particular focus on the century from 1530 to 1630, a time of some turbulence and change, and the earliest period of the court’s existence for which a record is available.1 The record has been addressed through a sample of the entry books of decrees and orders2 between the 1560s and the 1620s,3 together with a complete examination of the entry books for the period 1566 to 1600, and of the decree rolls for the period 1536 to 1600, in relation to cases concerning trusts, a key element in the court’s jurisdiction. This evidence has been supplemented from a variety of sources, including reports, and the Acts of the Privy Council.4

*  Unless otherwise indicated, all manuscripts are in The National Archives: Public Record Office. The year is taken to begin on 1 January. Quotations from manuscript have been rendered into modern orthography and punctuation. References to cases in the Chancery record are to relevant entries only, and are not necessarily exhaustive. I am grateful to Professor W. Prest for his advice in relation to the appellate jurisdiction of the House of Lords. 1  This period also includes the period which is the subject of W. J. Jones, The Elizabethan Court of Chancery, Oxford, 1967, which, among other things, has provided further references to the record. 2  The entry books of decrees and orders, or Register’s books (The National Archives: Public Record Office, class C 33), begin in 1544. In contrast to the decree rolls (The National Archives: Public Record Office, class C 78), the entry books of decrees and orders appear to contain a more or less complete record of the court’s activities. 3  The sample of the entry books undertaken for this contribution covered the whole of Hilary term 1565 and Michaelmas term 1575, and the first hundred folios of Michaelmas term 1585, Easter term 1595, and Michaelmas terms 1605, 1615, and 1626, taken from the A books for each year, respectively C 33/33, C 33/51, C 33/71, C 33/89, C 33/109, C 33/129, and C 33/151 (1626 was chosen rather than 1625 because Michaelmas term 1625 was cut short by plague). 4  The Acts of the Privy Council were searched online (http://www.british-history. ac.uk/search/series/acts-privy-council) against the term ‘Chancery’ in the indexes for the period 1542 to 1631.

68

N. G. Jones

Introduction (a) Central court jurisdiction in England, 1200–1700 The central courts of common law, those of Common Pleas, King’s Bench, and Exchequer – which survived until statutory abolition and replacement in 18755 – were all in being by the mid thirteenth century, having emerged from the undifferentiated king’s court (curia regis). The royal accounting meetings at Westminster, known as the Exchequer, were hearing non-financial pleas by the 1170s, and it seems probable that a division of function among the personnel at the Exchequer in the mid 1190s gave rise to the distinct courts of Exchequer and Common Pleas (known in the earlier period of its existence as the Common Bench, or Common Place). Royal absences from England in the second half of the twelfth century delayed the development of a regular jurisdiction coram rege (before the king), but such a jurisdiction emerged under King John in the first decade of the thirteenth century.6 The Common Pleas and Exchequer were sedentary, sitting at Westminster, near London, during the four annual law terms. The court coram rege (later known as the court of King’s Bench) intially moved with the king, but as the king’s presence became unusual it too gradually settled at Westminster, sitting there permanently during term after the 1420s.7 Before its cessation in the 1290s, the general eyre, regularised in the 1170s, provided intermittent local royal justice and goverment, visiting the country on a circuit basis.8 The central courts of common law were collegiate courts, comprising a chief justice and a number of puisne justices.9 After the 1330s the perma5  By

the Judicature Act 1875, 38 & 39 Vict., c. 77. the early history of the central courts of common law see R. V. Turner, The Origins of Common Pleas and King’s Bench, in: American Journal of Legal History, 21, 1977, 238, and J. Hudson, Oxford History of the Laws of England. Vol. 2: 871– 1216, Oxford, 2012, pp. 537–542. Sittings of the court coram rege were in abeyance between 1216 and 1234, Henry III having come to the throne as a minor, but revived thereafter. 7  J. H. Baker, An Introduction to English Legal History, 5th ed., Oxford, 2019, p. 46. For the gradual shift away from the king’s presence in the later thirteenth century, see G. O. Sayles (ed.), Select Cases in the Court of King’s Bench under Edward I, vol. 2, Selden Society, 57, London, 1938, pp. lxiii–lxv. 8  For the general eyre see Hudson, Oxford History of the Laws of England, pp. 544–548. By the second half of the thirteenth century eyre visitations occurred approximately once every seven years. For the general eyre’s cessation see C. Burt, The Demise of the General Eyre in the Reign of Edward I, in: English Historical Review, 120, 2005, p. 1. 9  The justices of the court of Exchequer were known as barons. 6  For



The English Court of Chancery69

nent justices of both Common Pleas and King’s Bench were invariably former common law practitioners, lacking formal training in the learned laws.10 The Common Pleas and King’s Bench were ordinary jurisdictions for civil cases, the King’s Bench in addition handling some criminal matters. In consequence of the division of jurisdiction established by Magna Carta 1215,11 the bulk of the work in the medieval period was undertaken by the Common Pleas, though changes in modes of proceeding at common law from the late fifteenth century onwards altered the balance increasingly towards the King’s Bench.12 First-instance civil litigation at common law was normally initiated by writ under the great seal (in contrast to the use in Chancery of informal bills of complaint). Such original writs were available in a range of specific forms with associated procedural steps, the so-called ‘forms of action’. Fact-finding in the central courts of common law depended largely upon jury trial, and the available remedies came generally to be limited to damages.13 The procedure of the common law came to be understood as ‘due process’, and was protected by medieval legislation, enforced by actions in the King’s Bench.14 10  See P. Brand, Edward I and the Transformation of the English Judiciary, in: P. Brand, The Making of the Common Law, London, 1992, Chap. 7. Other than the chief baron, barons of the Exchequer were not usually former common law practitioners until the sixteenth century, before that time being appointed from among the personnel of the Exchequer, Baker, Introduction to English Legal History, pp. 56–57. 11  Magna Carta 1215, cl. 17 (Magna Carta 1225, cl. 11), provided that ‘common pleas should not follow [the king’s] court, but be held in some certain place’. 12  For litigation patterns in England between 1200 and 1996 see C. W. Brooks, Lawyers, Litigation and English Society since 1450, London, 1998, Chap. 4. By the sixteenth century civil litigation at common law was increasingly being brought in various forms of trespass writ, which could be heard in the King’s Bench. Combined with this, from the early sixteenth century it became common in the King’s Bench to proceed by bill, rather than by original writ, obtaining jurisdiction on the basis of a fictional cause of action in trespass said to have arisen in the county of Middlesex (in which the court sat). Such bills of Middlesex allowed personal actions otherwise outside the jurisdiction of the King’s Bench to be heard there. They were in principle free from the constraints of the forms of action, and analagous to bills in Chancery, but in practice the (true) causes of action set out in process following upon a bill of Middlesex seem generally to have corresponded with causes of action available in process by original writ, see N. G. Jones, The Bill of Middlesex and the Chancery, 1556–1608, in: Journal of Legal History, 22, 2001, p. 1 at 3–4. 13  In the thirteenth century specific performance of contracts (in particular on leases) was available at common law, but this seems generally to have ceased during the fourteenth century, D. J. Ibbetson, A Historical Introduction to the Law of Obligations, Oxford, 1999, p. 88. 14  Most of the statutes of due process enacted in the time of Edward III were directed principally against the extraordinary jurisdiction of the king’s Council; on this, and the principle of due process more generally, see Sir John Baker, Collected Papers

70

N. G. Jones

Other royal jurisdictions also existed, some of which might be regarded as ‘central’ courts, at least in the sense that they came to sit in Westminster or London, including the court of Chancery, and the more short-lived courts of Star Chamber15 and of Requests.16 These courts, together with the provincial councils in the North and in the Marches of Wales,17 derived from the residuary jurisdiction of the king in Council after the emergence of the central courts of common law. Among these ‘conciliar’ courts the Chancery was the longest-lived and most significant, and over time developed its own jurisprudence which came to be known as equity. As with the central courts of common law, it was abolished and replaced by statute in 1875.18 The formal jurisdictional boundaries of the central courts of common law and the court of Chancery were little changed over this period, though in substance significant change occurred in the practical operation of all four courts.19 It was long possible to speak of Parliament as a ‘high court’.20 It had a judicial function (in the House of Lords) in hearing common law writs of error, and in the seventeenth century developed a jurisdiction as a court of appeal from decisions of the court of Chancery.21 But for the most part Parliament was not a court of ordinary jurisdiction in civil cases. The king’s Council in a broad sense, having given rise to the central courts of common law, and to the Chancery, retained a jurisdiction similar to that of the Chancery, subject to the statutes of due process, and at times closely on English Legal History, vol. 2, Cambridge, 2013, Chap. 49, and Sir John Baker, Oxford History of the Laws of England. Vol. 6: 1483–1558, Oxford, 2003, pp. 87–88, 174. It is not clear that there were many actions on the statutes of due process in respect of the Chancery, see J. H. Baker, The Reports of Sir John Spelman, vol. 2, Selden Society, 94, 1978, pp. 74–75. 15  For the emergence of the Star Chamber as a court see Baker, Oxford History of the Laws of England, pp. 195–200. 16  Ibid., pp. 203–206. The court was abolished in 1641. 17  Ibid., pp. 206–207. As a sedentary tribunal, the Court of Requests emerged in the period 1517–20 (with a pre-history dating back to the 1480s as a function of the itinerant Council attendant upon the king). It was not formally abolished, but ceased to operate in the 1640s following the withdrawal of the king’s privy seal during the civil war: Baker, Introduction to English Legal History, pp. 129–130. 18  Judicature Act 1875. 19  For changes in respect of the common law courts, see Baker, Introduction to English Legal History, pp. 46–54. 20  Ibid., pp. 207–208. 21  For private-party litigation in the seventeenth-century House of Lords more generally, see J. S. Hart, Justice upon Petition: the House of Lords and the Reformation of Justice, 1621–1675, London, 1991. See also the contribution of Prest to this volume.



The English Court of Chancery71

watched.22 Much of this jurisdiction passed to the court of Star Chamber in the first half of the sixteenth century, leaving the Privy Council as an instrument primarily of government rather than judicature.23 (b) The location and staffing of the Court of Chancery The office of the great seal, headed by the chancellor, was located in Westminster by the late 1330s,24 and from its emergence until 1825 the court of Chancery sat during term at the south end of Westminster Hall, adjacent to the court of King’s Bench and in the same great room as the court of Common Pleas, close both to the parliament houses and to the royal palace of Whitehall.25 The Chancery was tied neither to sitting only during term, nor to sitting in a particular location. The court sat, on occasion, in the chancellor’s private house,26 and in the eighteenth century the practice developed of sitting out of term some distance from Westminster, but close to the inns of court, in the hall of Lincoln’s Inn in Chancery Lane.27 In contrast to the central courts of common law, the chancellor was the sole judge in Chancery, albeit assisted by a staff of senior clerks (the masters 22  Baker,

Oxford History of the Laws of England, pp. 191–195. were also other courts in England, both central and local, including the court of Admiralty (a civilian jurisdiction), the courts of the church, and a range of courts of local jurisdiction, including the courts of the counties palatine, county courts, borough courts, and manorial courts. 24  A. Musson/W. M. Ormrod, The Evolution of English Justice, Basingstoke, 1999, p. 23. 25  For the courts in Westminster Hall see Baker, Collected Papers, vol.  2, Chap. 44. From 1825 until its abolition, the Chancery sat in new court buildings constructed against the outside wall of Westminster Hall, on the west side, ibid., p. 810. 26  In the time of Elizabeth see, for example, Thomas Parker and other the inhabitants of Brentwood in the County of Essex v Browne (upon request that the chancellor might ‘vouchsafe to hear the matter in variance between the said parties in this vacation’, it was ordered by the chancellor that ‘the said parties or some for them shall attend with their counsel at his lordship’s house on Friday next in the forenoon for the hearing of the said matter’), C 33/60 f. 177v (1579), and Mallorye v Fleminge (the matter in dispute was ‘opened at large before the … lord chancellor at his lordship’s house’), C 33/74 f. 500v (1587). 27  The master of the rolls first sat there in 1717 while Rolls House was being rebuilt, The Records of the Honourable Society of Lincoln’s Inn, The Black Books, vol. 3: from AD 1660 to AD 1775, London, 1899, pp. 251, 252. Lord Talbot LC was sitting there in vacation by 1733, a practice continued by his successor Lord Hardwicke and subsequent chancellors, The Black Books, vol. 3, pp. 304, 305, 312, 319. Hence the opening of Charles Dickens’s novel Bleak House published in 1852– 53: ‘London. Michaelmas Term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall’. 23  There

72

N. G. Jones

of Chancery, headed by the master of the rolls), and in some cases by common law judges.28 Until the 1530s the chancellor was usually not a common lawyer. Many medieval chancellors were ecclesiastics, a number of whom held university degrees in civil or canon law.29 From the earlier sixteenth century the master of the rolls was usually a common lawyer, though from the 1470s until the early seventeenth century the other masters were usually civilians.30 From the appointment of Thomas More in 1529, the chancellors were almost invariably common lawyers.31 The advocates practising in the court were probably always common lawyers, as they certainly were by the mid-sixteenth century.32

28  As Holdsworth put it, ‘Even in the Middle Ages the ecclesiastical Chancellors, by consulting the judges, often recognized their inability to deal with the business of the court without assistance. And, in the sixteenth and early seventeenth centuries, the lay Chancellors generally took care to get the assistance of the judges or masters of the court or both’, W. S. Holdsworth, A History of English Law, vol. 1, 3rd ed., London, 1922, p. 412. Assistance from the judges in the sixteenth and early seventeenth centuries most commonly took the form either of a reference of points of law to certain of the common law judges, not infrequently one or more of the chief justices, or of the presence of common law judges at hearings in Chancery. For the former see, for example, Baker v Edon, where in 1583 Meade and Peryam JJCP ‘having considered of a case’ upon a point of law, ‘certified into [the Chancery] under their hands’ their opinion on the point of law, while referring a point concerning a trust ‘to the judgment of this court in equity’, C 33/67 f. 137v. For the latter, see, for example, Killio v Taverner, where in 1595 the Chancery meant at the hearing ‘to have the assistance of the three Lords Chief Justices’, the matter in question being ‘of great consequence and the judgment thereof will be a precedent for other like cases’, C 33/89 f. 646, and Countess of Peterborough v Countess of Nottingham (1629), where ‘the lord keeper … associating the two chief justices to him and conferring with them’, dismissed the bill: W. H. Bryson (ed.), Cases Concerning Equity and the Courts of Equity, 1550–1660, vol. 2, Selden Society, 118, London, 2001, pp. 586–587, no. 317. For further examples see also David Chan Smith, Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616, Cambridge, 2014, pp. 219–221. 29  For the backgrounds of the fifteenth- and early sixteenth-century chancellors, see A. W. B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit, Oxford, 1975, reprinted 1987, pp. 400–402. 30  N. Pronay, The Chancellor, the Chancery, and the Council at the End of the Fifteenth Century, in: H. Hearder/H. R. Loyn (eds.), British Government and Administration, Studies Presented to S. B. Chrimes, Cardiff, 1974, p. 87 at 91–92; M. R. T. Macnair, The Law of Proof in Early Modern Equity, Berlin, 1999, pp. 31–32. An increased role for civilians at this time was not limited to the Chancery, see Pronay, The Chancellor, the Chancery, and the Council, at p. 102. 31  There were two exceptions in the narrower period, Sir Christopher Hatton (chancellor 1587–91), who, while having some association with the Inner Temple, was primarily a courtier, and John Williams (lord keeper 1621–25), bishop of Lincoln.



The English Court of Chancery73

1. The development of the Court of Chancery (a) The general relationship between the courts and royal exercise of judicial authority The central courts of common law formed a means of delegation of the king’s judicative power.33 The second generation of conciliar courts, including the court of Chancery, arose from the same source,34 and the chancellor as judge of the court of Chancery was appointed by, and derived his authority from, the Crown. The residual judicative power of the Crown, exercised in various forms by the king and council was subject in principle (like the court of Chancery) to the requirement of due process of law, embodied in the medieval statutes of due process,35 to be exercised only where the common law was deficient, and subject to the proviso that ‘No one could be imprisoned, or deprived of his freehold property, or in any way ‘destroyed’, except by the ‘lawful judgment of his peers or by the law of the land’.36 These limits required repetition,37 and were intermittently tested, for example in the time of Henry VII (1485–1509) through the judicial aspect of the king’s Council, and the creation of the Council Learned in the Law, though the latter body appears only infrequently to have determined cases as opposed to 32  The names of the advocates practising in the court in the sixteenth-century record and later are those of common lawyers, including serjeants at law, who practised also in the courts of common law. For discussion see Smith, Sir Edward Coke and the Reformation of the Laws, pp. 222–224. Before the commencement of the record there is little direct evidence on the point, though it seems very likely that common lawyers were practising in the court in the fifteenth century. 33  Baker, Introduction to English Legal History, p. 18. 34  Ibid., p. 106. 35  Magna Carta 1225, c. 29, ‘No free man shall in future be arrested or imprisoned or disseised of his freehold, liberties or free customs, or outlawed or exiled or victimised in any other way, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land’. 28 Edw. III, c. 3, ‘That no man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law’. 42 Edw. III, c. 3, ‘… no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land’. 36  Sir John Baker, Human Rights and the Rule of Law in Renaissance England, in: Northwestern University Journal of International Human Rights, 2, 2004, at http:// scholarlycommons.law.northwestern.edu/njihr/vol2/iss1/3 (reprinted, Collected P ­ apers, vol. 2, pp. 923–944 at 936). 37  As Professor Baker has put it, ‘due process’ was ‘precarious in reality and therefore repeatedly reasserted as a principle to be personally acknowledged by king after king, lest it should be forgotten or laid aside’: Baker, Personal Liberty under the Common Law, p. 873.

74

N. G. Jones

conducting interlocutory proceedings.38 The Reformation had little direct effect upon the exercise of the king’s judicative power, and the general movement from the fourteenth century was towards greater independence of the judiciary, albeit such independence came under particular pressure in the seventeenth century and required support thereafter through the gradual establishment by statute of judicial appointment during good behaviour, and irrespective of the demise of the Crown.39 (b) The Court of Chancery as a new institution As has been seen, the court of Chancery appears to have emerged from delegation to the chancellor of the handling of petitions to the king and council for justice outside the ordinary system.40 The Chancery as the royal secretariat, the office of the great seal, came into being before the emergence of the court of Chancery (the so-called ‘English side’ of the Chancery), and had a continuing role in the administration of justice, for example through the issuing of original writs authorising the commencement of litigation at common law. The involvement of his office in issuing such writs may have contributed to the development of the practice of delegating to the chancellor the handling of petitions,41 but the court of Chancery appears not to have been derived directly from the office of the great seal (the ‘Latin side’), and hence is probably best seen as a new institution, rather than a consequence of an older institution assuming a new role,42 albeit a clear distinction between the court of Chancery and the king’s Council was established only slowly dur­ ing the fifteenth century – accompanied by changes in the Council itself as it came in the later fifteenth century to be dominated by the king’s chief

38  The Council Learned, a sub-conciliar tribunal consisting of four common lawyers, is known to have existed at least from 1499 until 1509, with business part fiscal, part regulatory, and part private litigation: Baker, Oxford History of the Laws of England, pp. 193–194. 39  See, Baker, Reports of Sir John Spelman, vol. 2, pp. 137–141; D. Lemmings, The Independence of the Judiciary in Eighteenth Century England, in: P. Birks (ed.), The Life of the Law: Proceedings of the Tenth British Legal History Conference, London, 1994, p. 125. 40  P. Tucker, The Early History of the Court of Chancery: A Comparative Study, in: English Historical Review, 115, 2000, p. 791 at 799. 41  ‘[The chancery] was the head office of the organisation and it was here that application was made when the ordinary mechanisms appeared to be incapable of working’, S. F. C. Milsom, Historical Foundations of the Common Law, 2nd ed., London, 1981, p. 84. See also Musson/Ormrod, The Evolution of English Justice, pp. 23– 25. 42  Baker, Introduction to English Legal History, pp. 109–110.



The English Court of Chancery75

­ministers43 – and it may not have been until the mid fifteenth century that the chancellor handled non-common law business (the later ‘equitable’ business) separately from common law business.44 It is arguable that in the fourteenth century and well into the fifteenth century ‘the Chancery’s substantial judicial function was to accept a degree of authority, unfettered by the formalities of the common law, in cases submitted to it’, and that in this period ‘what mattered to plaintiffs was the advantage of the Chancery’s legal freedom and administrative power’, which distinguished it from the many other medieval non-common law jurisdictions.45 (c) A court with political authority? An aspect of the question of possible political authority of the court of Chancery has recently been considered by Dr Ian Williams,46 who points out that while links between the court and the royal prerogative might seem obvious, very little was in fact said in legal discussion about an association between the Chancery and the prerogative until the late sixteenth century, the extensive discussion of the court in St German’s Doctor and Student, for example, being ‘entirely silent on the source of [its] authority, considering only the necessity of equity’.47 A link with the prerogative became explicit around 1580, formed a significant element in dispute about the limits of the Chancery’s authority in the 1610s, and was widely accepted by the 1650s.48 Similarly, the conception of the chancellor as keeping and applying the king’s conscience appears to have first arisen in the late sixteenth century.49 In these senses the Chancery might be seen as more than simply an ordinary court, but aside from theory, the records of the court reflect little of politics and much of the routine of private party litigation, strengthened over time by 43  Pronay, The Chancellor, the Chancery, and the Council, pp. 100–102; J. F. Baldwin, The King’s Council in England during the Middle Ages, Oxford, 1913, Chap. 10. 44  Tucker, Early History of the Court of Chancery, p. 809. 45  J. B. Post, Equitable Resorts before 1450, in: E. W. Ives/A. H. Manchester (eds.), Law, Litigants and the Legal Profession, London, 1983, p. 68 at 70–71. 46  I. Williams, Developing a Prerogative Theory for the Authority of the Chancery: The French Connection, in: M. Godfrey (ed.), Law and Authority in British Legal History, 1200–1900, Cambridge, 2016, Chap. 3. 47  Ibid., p. 35. The modern edition of Doctor and Student is T. F. T. Plucknett/ J. L. Barton (eds.), St German’s Doctor and Student, Selden Society, 91, London, 1974. It was printed in two parts in 1528 and 1530. 48  Williams, Developing a Prerogative Theory, pp. 41, 54–59. 49  Ibid., p. 51, suggesting that the first identified use of the idea was by Sir Christopher Hatton (chancellor 1587–91).

76

N. G. Jones

the gradual emergence of a substantive course of the court (in the form of standard responses to particular fact patterns), and by the application of ideas of precedent.50 (d) The court’s role in centralisation or decentralisation of judicial structures and jurisdiction Civil litigation at common law was from its origin highly centralised. The courts of Exchequer and Common Pleas sat permanently in Westminster, as the court of King’s Bench came also to do by the earlier fifteenth century, and the peripatetic general eyre did not outlast the thirteenth century. Those litigating at common law commenced their actions in one of the central courts of common law at Westminster, and judgment was given there, with jury trial (if required) conducted in the county in which the dispute had arisen by judges of the central courts or serjeants at law, riding circuit as assize commissioners.51 The Chancery, which likewise sat in Westminster or London, may thus be seen as a further central court alongside the central courts of common law – as one of the ‘four great courts at Westminster’, as it was put in the Common Pleas in 161552 – and as sharing with the central courts of common law in the gradual movement of litigation away from local courts towards the centre, though such movement should not be overstated: as C. W. Brooks put it, [t]he king’s judges at Westminster were naturally inclined towards jurisdictional imperialism, and the waves of litigation that came into the central courts during the years from 1550 to 1640 can justly be seen as contributing both to the growth of the state and to the reach of London law ever more deeply into social and economic life. Yet the process was associated with an enduring tendency to privilege customary practices, and many lesser jurisdictions continued to flourish until well after the Restoration.53 50  An early example of reference to precedent in Chancery is provided by Cooke v Wotton (1566) C 33/33 f. 82v, where the ordering of the cause was deferred to the following term, since the lord keeper had ‘not had sufficient and convenient time and leisure to consider of the precedents of this court and to confer with the judges touching the cause and matter in question’. Further examples may be seen in Ashebye v Smithe C 33/47 f. 181v (1575) (printed in Cecil Monro (ed.), Acta Cancellariae, London, 1847, pp. 423–424), Ragland v Wilgosse (1592) C 33/85 f. 79v, and Golding v Tuffin (1612–13) C 33/121 f. 1088, C 33/123 f. 413. 51  On the assizes see Baker, Introduction to English Legal History, pp. 23–25. 52  By the justices of the Common Pleas in Martin v Marshall (1615): Bryson (ed.), Cases Concerning Equity and the Courts of Equity, vol. 2, p. 444, no. 231, at p. 447. 53  C. W. Brooks, Law, Politics and Society in Early Modern England, Cambridge, 2008, p. 425.



The English Court of Chancery77

The Chancery had significant links with the localities. As early as the late fourteenth century it had taken on an appellate role from inferior urban courts,54 which continued to be a feature of the jurisdiction into the narrower period. In the sixteenth century special writs of certiorari or writs of habeas corpus cum causa were issued out of the Chancery to inferior courts to examine proceedings in those courts.55 The Chancery made extensive use of commissions of local gentlemen to examine witnesses,56 and to conduct arbitration or mediation: in the Elizabethan period, the court’s ‘most favoured method’ of ending litigation by bringing the parties together was to commission a number of local gentlemen to hear and end the cause.57 2. The court’s technical jurisdiction, and changes to it (a) Rules on jurisdiction The scope of jurisdiction of the court of Chancery developed in the context of the existence of the central courts of common law, and of the statutes of due process:58 as has been seen, it was said that in principle the court was to act only where the common law was deficient, and was not to interfere with matters reserved to due process of law, including questions of title to freehold land.59 It did not deal with criminal matters. Plaintiffs in the court routinely alleged a lack of remedy at common law. This might be done in standard form, a common example being a complaint of the detention of title deeds to land, combined with an assertion that the common law remedy to recover them – in the action of detinue of charters – was unavailable for lack of the necessary detailed information as to the deeds and how they were kept. In such a situation, as Christopher St German put it in the early 1530s, ‘ye common lawe doth not prohybyt, but that there shal be remedye in the 54  Baker,

Introduction to English Legal History, p. 113. Oxford History of the Laws of England, p. 189. The former was used to complain of an unjust suit, the latter was used where the Chancery plaintiff was in prison. 56  For the Elizabethan period see Jones, Elizabethan Court of Chancery, Chap. 5. 57  Jones, Elizabethan Court of Chancery, p. 272. 58  See references in fn. 14 above. 59  See, for example, W. Lambarde, Archeion or, A discourse vpon the high courts of iustice in England, London, 1635, pp. 76–77: ‘when as the Chancerie, or any such Court shall be intituled to hold Plea of right of Land upon the suggestion of uncertaine Charters or Evidences should be brought into the Court; that the parties shuld be dismissed to the Common Law, or enterplead for the Right in the Land … Whereas now it is often seene, that one man doth implead another, by this pretence, in the Court of Equitie, for cause that requireth no helpe in Equitie at all; but doth most properly pertaine to the determinations of the Common Law’. 55  Baker,

78

N. G. Jones

chauncery in ye seid case and other lyke; and yf it dyd, it wolde be hard to prove that ye prohibicion were resonable’.60 Suits for detention of title deeds were becoming frequent in the latter part of the fifteenth century,61 and allegations of inability to sue in detinue of charters were common in Chancery bills by the 1530s.62 These may frequently have been fictional: ‘[f]ew suits were genuine which purported to be no more than actions to recover deeds unconsionably detained’.63 By the early sixteenth century there is some evidence of the award of possession of land in such suits.64 By 1530 between a half and two-thirds of cases in the court concerned landed property,65 including freehold land, though chancellors may have been wary of directly adjudicating questions of title. As Dr Henderson put it, we begin in the late ’forties and ’fifties [of the sixteenth century] to gather some hints as to how the Chancellors felt about these land cases, even some rules of decision. And despite the fact that relief involving the land itself was often given, it seems that mostly the Chancellors were rather unhappy about it. All of them avoided making decrees on novel questions of law.66 60  C. St German, A Little Treatise Concering Writs of Subpoena, in: J. A. Guy (ed.), Christopher St German on Chancery and Statute, Selden Society, suppl. ser., 6, London, 1985, p. 106 at 108. 61  E. G. Henderson, Legal Rights to Land in the Early Chancery, in: American Journal of Legal History, 26, 1982, p. 97 at 101. 62  Ibid. 103. For a slightly earlier example, see the bill in Pottowe v Fowle (1515–18) C 1/434/14, where the plaintiffs alleged that ‘for as much as your said orators know not the number nor certainty of them [scil. the documents in question], nor whether they be contained in bag, box, chest, sealed or locked or otherwise, your said orators [are] without remedy by course of the common law’. For a later example, though less clearly in standard form, see Kyrkall v Collyn (1564) C 78/24/32, where the plaintiffs alleged that ‘writings and escripts’ concerning a surrender of copyhold land were in the hands of the defendants, ‘which have utterly refused to show them unto the plaintiffs for which cause they be without remedy for to recover the dower of the [female plaintiff] by the order of the common laws of this realm’. Similar allegations might be made in respect of chattels personal, as in Banestre v Banestre (1563) C 78/28/9, where the plaintiff alleged that he ‘knew not the certainty of the same money, plate, goods and chattels … nor the very value thereof’, so that ‘he could not maintain any action at common law for the same’. 63  J. A. Guy, The Public Career of Sir Thomas More, New Haven, 1980, p. 51. A similar mechanism was used in Star Chamber, in the form of allegations of riot or forcible entry, ibid. 64  Henderson, Legal Rights to Land in the Early Chancery, pp. 102–103. 65  Baker, Oxford History of the Laws of England, pp. 188–189. Henderson observed that ‘of nearly 300 decrees enrolled under Edward VI [1547–53] and still legible, only 40 did not concern land. There were roughly 100 decrees explicitly concerning freehold land, 50 relating to leasehold land, and 25 relating to copyholds, as well as many decrees in which the nature of the tenure does not appear’: Henderson, Legal Rights to Land in the Early Chancery, p. 106. (The enrolled decrees do not record all of the court’s business).



The English Court of Chancery79

By the 1590s Chancery was prepared in some cases to dismiss suits turning upon detention of title deeds where the allegation of detention was clearly false.67 Such cases continued to appear before the court in the seventeenth century, though by the early 1660s it was the ‘course of the court’ that a plaintiff who alleged the want of a deed and sought relief by decree in Chancery must swear an oath that he did not himself have the deed, suggesting a response to attempts to use such suits as a means of bringing into Chancery matters properly determinable at law.68 Suits were likewise brought for discovery of title deeds, and in the Elizabethan period a ‘multitude of persons, who wanted to uphold a title or a possession, initated proceedings in Chancery in order to gain access to the evidences’.69 In this period a tendency developed in such cases towards ‘retaining jurisdiction of legal questions where it was only necessary to resort to the court for [d]iscovery’.70 Coke asserted that the common law judges had responded that if the defendant in his answer made title to the land ‘then the plaintif[f] ought not to proceed, for otherwise by such a surmise inheritances, freeholds, and matters determinable by the common law shall be decided in [C]hancery’,71 though the Chancery long continued to exercise the jurisdiction, at least where this was justified by some other matter, such as fraud, or a need to take accounts.72 66  Henderson, Legal Rights to Land in the Early Chancery, p. 106. Reference of questions of title to land to common law, by directing common law trial of the title was not uncommon, Chancery then determining the suit as the trial at common law indicated. 67  Siltoppe v Clerke (1596) C 33/89 f. 97 (in a suit for relief upon a conditioned bond, the plaintiff, in order ‘to give this court jurisdiction’, alleged detention by the defendant of certain deeds and evidences; detention being denied in the answer, and this appearing to be true upon reading of the bill, the plaintiff was dismissed, paying costs). 68  Anon. (1662) 1 Chan. Cas. 11. See also Henderson, Legal Rights to Land in Early Chancery, p. 115. No such oath was required where the plaintiff merely sought to have the defendant discover whether he had such a deed or not, or to have a deed produced at trial. 69  Jones, Elizabethan Court of Chancery, p. 455. For a Caroline example of discovery, see Waller v Deereham, C 33/151 f. 56 (1626) (a ‘ledger book’ ordered to be delivered into court for perusal by the plaintiff who needed sight of it in order to pursue an action concerning tithes at common law). 70  G. Spence, The Equitable Jurisdiction of the Court of Chancery, vol. 1, London, 1846, p. 678. 71  E. Coke, The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of Courts, London, 1644, p. 85, reporting Sir Moyle Finch’s Case (1600). 72  As Fonblanque put it in 1793 in his notes to A Treatise on Equity, attributed to Henry Ballow, the court of equity ‘will compel the necessary discovery; and, the

80

N. G. Jones

If title to freehold land was in principle outside the Chancery’s jurisdiction, the court might nevertheless make orders in respect of possession, Dr Henderson observing that ‘Chancery often took order concerning the possession of land, from before 1485 to after 1558’.73 Thus in Sapcott v Newport74 it was found in 1560 that the plaintiff had been in possession of the parsonage in question for three years before the exhibition of the bill in Chancery, following which the defendant had disturbed his possession, the matter not being determined in Chancery. An injunction was thereupon issued, requiring the defendant to permit the plaintiff ‘quietly and peaceably to have, hold, occupy and enjoy the land’ until further order. And in Floyer v Strackley (1632),75 following long and convoluted litigation at common law, in the course of which ‘[t]here having been … several verdicts and non-suits in ejectment on either side’, Coventry LK, assisted by all the common law judges, ‘declared that he held it high time to appease and settle this controversy which otherwise was like to grow more and more intricate’, and decreed that the plainitff should ‘have, hold and quietly enjoy the … manor and premises in question in this court’ against the defendants, their heirs and assigns and all claiming under them. If in suits for detention of title deeds or for discovery, or in making orders to quiet possession, the Chancery at times tested the boundaries of the contested area of direct determination of common law title, more straightforward was Chancery assistance in the determination of title elsewhere. This might be done, for example, through the preservation of testimony by examination of witnesses in perpetual memory (in perpetuam rei memoriam).76 And by the Elizabethan period, Chancery aided the determination of land boundaries

court having acquired cognizance of the suit, for the purpose of discovery, will entertain it, for the purpose of relief, in most cases of fraud, account, accident, and mistake’: Henry Ballow, A Treatise of Equity. With the Addition of Marginal References and Notes: by John Fonblanque, vol. 1, London, 1793, p. 12. 73  Henderson, Legal Rights to Land in Early Chancery, p. 98. 74  C 33/21 f. 173v, reported, sub nom. Sapcote v Newport, Cary 47. 75  C 33/161 f. 387v. Reported, sub nom. Floyer v Strachley Nelson 13. See also Bryson (ed.), Cases Concerning Chancery and the Courts of Chancery, vol. 2, p. 634, no. 373. See also Fachell v Lassells (1630), Bryson (ed.), Cases Concerning Equity and the Courts of Equity, vol. 2, p. 604, no. 335 (the plaintiff’s possession decreed against the defendant until better matter shown). 76  Jones, Elizabethan Court of Chancery, pp. 254 ff. For later examples see Watkins v Williams (1605) C 33/109 f. 17v (application for examination in perpetuam rei memoriam), Parry v Rogers (1686) 1 Vern. 442, and Cox v Colley (1729) Dick. 55. The latter two cases proceeded on the basis that examination in perpetuam rei memoriam would be permitted only if title had been established at law, unless there were some impediment to doing so.



The English Court of Chancery81

through the appointment of commissioners to undertake a survey.77 This was something which ‘Chancery could do well while the fundamental issue, perhaps title, was settled elsewhere’.78 By the eighteenth century, Chancery might establish boundaries by directing a trial at law upon a feigned issue,79 though doubts came to be expressed as to the court’s jurisdiction to establish boundaries, Henley LK observing in Wake v Conyers (1759), that [a]ll the cases where the court has entertained bills for establishing boundaries, have been where the soil itself was in question, or where there might have been a multiplicity of suits. The court has, in my opinion (and if parties are not satisfied they have resort elsewhere), no power to fix the boundaries of legal estates, unless some equity is superinduced by the act of the parties.80

Aside from disputes in relation to common law title, its simple existence in the hands of trustees was central to the Chancery’s undoubted jurisdiction over trusts: as Maitland put it, ‘It’s of no use for Equity to say that A is a trustee of Blackacre for B, unless there be some court that can say that A is the owner of Blackacre’.81 Numerous cases in the court concerned uses or trusts of freehold land,82 including petitions seeking an order for specific conveyance of land against trustees, a remedy not available at common law, but granted without difficulty in Chancery.83 77  Jones, Elizabethan Court of Chancery, pp. 281–286, referring, for example, to Dyer v Bay (recte Ray) (1565) C 33/31 f. 282, where it was ordered that a court leet be held to enable trial of the legal right at law, with the appointment of a commission to survey the boundaries. For later examples see Spyer v Spyer (1631–32) Nelson 12; Darcy v Darcy (1668–69) Nelson 119; Norris v Le Neve (1744) 3 Atk. 82; Duke of Leeds v Earl of Stratford (1798) 4 Ves. Jun. 180. 78  Jones, Elizabethan Court of Chancery, p. 284. 79  For example, Metcalfe v Beckwith (1726) 2 P. Wms. 375. 80  1 Eden 331 at 335–336. See also Spence, Equitable Jurisdiction of the Court of Chancery, vol. 1, p. 655. 81  F. W. Maitland, Equity: A Course of Lectures, ed. by A. H. Chaytor/W. J. Whittaker, Cambridge, 2nd ed. by J. Brunyate, 1936, p. 19. 82  Even before the Statute of Uses 1536, uses or trusts of chattels were also created, see N. G. Jones, The Authority of Parliament and the Scope of the Statute of Uses 1536, in: Godfrey (ed.), Law and Authority in British Legal History, Chap. 2, at pp. 26–27. 83  For the jurisdiction in relation to trusts (including trusts of land) in the narrower period, see N. Jones, Trusts in England after the Statute of Uses: A View from the Sixteenth Century, in: R. Helmholz/R. Zimmermann (eds.), Itinera Fiduciae: Trust and Treuhand in Historical Perspective, Berlin, 1998, pp. 173–205; and N. Jones, Trusts Litigation in Chancery after the Statute of Uses: The First Fifty Years, in: M. Dyson/D. Ibbetson (eds.), Law and Legal Process: Substantive Law and Procedure in English Legal History, Cambridge, 2013, pp. 103–125. For the later seventeenth century see D. E. C. Yale (ed.), Lord Nottingham’s Chancery Cases, vol. 2, Selden Society, 79, London, 1961, pp. 87 ff.

82

N. G. Jones

If adjudication of title were perceived to be inappropriate in Chancery, it could be avoided by reference of the matter to trial at common law. Thus in Parsehowse v Hatchman (1585) ‘it was ordered that some new action should be brought in Her Majesty’s Bench or in the court of Common Pleas for trial of the title of the house in variance, and that the possession of the premises should be decreed and established by this court as the same trial should fall out’;84 and in Dennys v Carew (1605) it was ordered, by assent of the parties, that the Chancery defendant should bring an action at law for trial of the title, and ‘if upon the … trial the matter shall fall out against the defendant or that he shall not be non-suit in the said action, then a decree should be made for the plaintiffs’ absolute enjoying of the … lands’.85 Leaving aside the limits of due process, the scope of the Chancery jurisdiction was shaped to some degree by the scope of common law jurisdiction, and by the nature of common law process. In relation to the scope of common law jurisdiction, the common law, would not, for example, provide a remedy upon uses or trusts of land – as Serjeant Frowyk put it in 1502, the beneficiary of a use ‘by course of the common law … has nothing more to do with the land than the greatest stranger in the world’86 – whereas the Chancery was able to do so, uses and trusts, as has been noted, coming to be a staple element in the court’s jurisdiction. And the establishment at common law of the action on the case for nonperformance of informal contractual obligations, itself in part stimulated by Chancery practice in providing remedies in such cases,87 played a role in the sixteenth-century shift of emphasis in Chancery towards matters concerning property.88 84  C

33/71 f. 72. 33/109 f. 15v. Questions of title to copyhold land might be treated in the same way. See, for example, Goodinge v Goodinge (1605) C 33/109 f. 47v, where the matter ‘touching the copyhold land in question’, seemed ‘more meet to be tried and decided by the course of the common law’ in an action of trespass, the steward of the manor in question being enjoined to attend the trial with the book of the manorial court, and it being ordered that if the outcome of the trial was in favour of the plaintiff in Chancery, the defendant in Chancery should leave possession to the plaintiff, and answer to him for the mesne profits. References to trial at common law were not confined to matters concerning land. Thus in March v Copping, the plaintiff was ordered in 1626 to bring an action on the case at common law on a point of ‘promise and property’ in relation to chattels in question, with provision that if the verdict was in the plaintiff’s favour, the defendant should pay him £70 by order of the Chancery, C 33/151 f. 88. 86  ‘car per le course del common ley il nad pluis a faire ovesque le terre que le pluis estrange en le monde’, in Dod v Chyttynden (1502), in: J. H. Baker (ed.), Reports of Cases by John Caryll, pt 2, 1501–1522, Selden Society, 116, London, 2000, p. 395 at 396. 87  Ibbetson, Historical Introduction to the Law of Obligations, p. 129. 88  Baker, Oxford History of the Laws of England, pp. 188–189. 85  C



The English Court of Chancery83

In relation to common law process, the medieval Chancery was free from the rules concerning pleading and proof which constrained the common law courts: as Prysot CJCP put it in 1459 ‘we are here in this court [the Common Pleas] to proceed to judgment in accordance with what has been alleged and proved (secundum allegiatum et probatum), and we cannot go beyond that’.89 Cases requiring a remedy unfettered by process secundum allegiatum et probatum gravitated to the Chancery, for example in the case of relief against sealed instruments, St German’s student observing in 1530 that there is a generall maxyme in the lawe of Englande that in an accyon of dette sued vpon an oblygacyon the defendaunt shall not plede that he oweth not the money or that he has paid it ne can in no wyse dyscharge hym selfe in that accyon but he haue acquytaunce or some other wrytynge suffycyent in the lawe or some other thynge lyke wytnessyng that he hathe payde the money … yet he maye be holpen in equity by a sub pena.90

The Chancery’s jurisdiction was also to some extent shaped by the procedures and remedies available in Chancery itself; indeed, it has been argued that equity ‘is essentially a system of remedies’.91 In relation to remedies, the courts of common law awarded damages,92 but in Chancery other remedies, including those of injunction and specific performance were available.93 This remedial difference may, for example, play a part in explaining 89  YB Hil. 37 Hen. VI, f.13a, pl. 3, see also M. Hemmant (ed.), Select Cases in the Exchequer Chamber, vol. 1, Selden Society, 51, 1933, p. 147 at 152. For discussion see M. Macnair, Equity and Conscience, in: Oxford Journal of Legal Studies, 27, 2007, p. 659, in particular at 672–680. 90  Plucknett/Barton (eds.), St German’s Doctor and Student, pp. 77 and 79 (from the English version of the First Dialogue, the italics indicating material from the Latin version not present in the English version as originally printed). It remained the case in the Elizabethan period that ‘Chancery, in effect, would give the same remedy as could have been obtained at law if the bond, deed, or acquittance in question had existed’: Jones, Elizabethan Chancery, p. 437. See also Lord Nottingham’s observation in the 1670s that ‘A man pays statute or obligation without acquittance, and is sued again; he shall be relieved in Chancery … if he can prove it’: D. E. C. Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’, Cambridge, 1965, p. 213. 91  Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’, p. 16, referring to C. C. Langdell, A Brief Survey of Equity Jurisdiction, 1, in: Harvard Law Review, 1887, p. 55: ‘Equity jurisdiction is a branch of the law of remedies’. 92  Specific performance of covenants was available in appropriate cases at common law in the thirteenth century, and appears to have continued to be available in the case of leases into the late fourteenth century and possibly later, see Baker, Introduction to English Legal History, pp. 339–342; Ibbetson, Historical Introduction to the Law of Obligations, p. 88; Simpson, History of the Common Law of Contract, pp. 595–598. 93  For the Elizabethan period see Jones, Elizabethan Court of Chancery, pp. 183– 190 and 447–448. Common injunctions (restraining proceedings in another court),

84

N. G. Jones

why the common law courts did not deal with trusts of land, but did have mechanisms which enabled the enforcement of what has been described as ‘something like a trust of money’.94 In relation to procedure, one aspect of this was closely linked to Chancery’s freedom, already noted, from the medieval common law’s rules of pleading and proof, in that the Chancery required the defendant to answer to the plaintiff’s bill on oath and did not rely upon trial by jury. Indeed, it has been argued that the term ‘conscience’, when applied to the jurisdiction of the medieval Chancery, denoted private knowledge or belief, and, in particular, the chancellor’s and defendant’s knowledge of facts which could not be proved at common law.95 Legislative reform of aspects of the Chancery’s jurisdiction was attempted on several occasions in the seventeenth century, in which period the court was frequently identified as being in particular need of reform,96 external attention to reform being accompanied by reform from within through orders regulating the procedures of the court, which had begun to be issued by individual chancellors in the sixteenth century.97 The eighteenth century saw and special injunctions (restraining particular conduct), were being issued from Chancery by the fifteenth century, as were orders for the specific performance of agreements: Spence, The Equitable Jurisdiction of the Court of Chancery, vol. 1, pp. 645, 671, 674. 94  J. H. Baker, The Use of Assumpsit for Restitutionary Money Claims, in: E. J. H. Schrage (ed.), Unjust Enrichment: the Comparative Legal History of the Law of Restitution, Berlin, 1995, pp. 31–57 at 48 (indebitatus assumpsit for money had and received), and at p. 32 (account). See also N. G. Jones, Uses, Trusts and a Path to Privity, in: Cambridge Law Journal, 56, 1997, p. 175 at 189–192. 95  See Macnair, Equity and Conscience, pp. 672–679. Note Macnair’s argument that by the mid seventeenth century, and possibly earlier, an understanding of ‘conscience’ in Chancery as knowledge of or belief in legally relevant facts not appropriately pleaded and proved according to the common law rules had become ‘largely meaningless’ in consequence of changes at common law whereby substantive issues were no longer pleaded but left to trial, and whereby jurors came to be seen not as witnesses, but as triers of fact, ibid., p. 679. 96  See B. Shapiro, Law Reform in Seventeenth Century England, in: American Journal of Legal History, 19, 1975, p. 280, in particular at 282–283, 293, and 301– 303; Holdsworth, A History of English Law, vol. 1, pp. 423–436; and Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’, pp. 14–15. A Parliamentary resolution of 1653 to abolish the court was not put into effect (‘Though the court had started to put its house in order, this would not have saved it had not the incompetence of Parliament prevented them legislating at all. This, the reasons for retaining a jurisdiction which alone could reach much fraud and bad faith, and some vis inertia preserved the court’, Yale, ibid., p. 15). Matters of concern to seventeenth-century reformers of the Chancery included a perception that the court had improperly enlarged its jurisdiction, and costs and delays in litigation there. 97  The orders up to 1845 are collected in G. W. Sanders, Orders of the High Court of Chancery, and Statutes of the Realm Relating to the Chancery, From the Earliest Period to the Present Time, London, 1845.



The English Court of Chancery85

very little attention to Chancery reform,98 but ‘after the Whig victory in 1830 the reform of the court was seriously taken in hand’.99 The chancellor was relieved of his jurisdiction in bankruptcy, and provided with assistance in the form of an extension of the responsibilities of the master of the rolls and the appointment of a number of vice-chancellors. Appeals from decisions of the master of the rolls or the vice-chancellors were handled by a new Court of Appeal in Chancery, established in 1851, and extensive changes were made in the staffing of the court.100 By the 1850s thought was turning towards possible fusion of law and equity. Limited provision was made in the Common Law Procedure Act 1854 and Lord Cairns’s Act 1858 for courts of law and equity to exercise powers previously unavailable to them, and with the coming into force in 1875 of the Judicature Act 1873, the old courts were swept away, and law and equity thereafter administered together in a new court structure.101 (b) Changes in the application of existing remedies, and jurisdictional and procedural rules It was commonplace that Chancery process operated in personam.102 In a negative sense, as Serjeant Knightly put it in 1535, a Chancery decree did not ‘bind the right but only binds the person to obedience, so that if the party will not obey, then the Chancellor … can commit him into custody until he will obey, and this is all that the Chancellor can do’.103 As Mr Yale has put it, ‘[t]he predominating characteristic of Equity procedure and process was … personal constraint of the defendant: it was the mainspring, indeed, the sole machinery which the Chancellor had originally to command’.104 But as the Chancery became more involved in matters of real property it became clear that reliance upon imprisonment for contempt was an inadequate means of enforcing some decrees, and two procedural developments added to the Chancery’s armoury.

98  Holdsworth, A History of English Law, vol. 1, p. 436. No general orders were made by any chancellor from Hardwicke (1737–57) to Loughborough (1793–1801): ibid. 99  Ibid., p. 443. 100  See W. R. Cornish et al., Oxford History of the Laws of England. Vol. 11: 1820–1914, Oxford, 2010, Chap. 4. 101  Ibid., Chap. 6. 102  For discussion see Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’, pp.  16 ff. 103  YB Trin. 27 Hen. VIII, f. 14, pl. 6, at f. 15A–15B. 104  Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’, p. 19.

86

N. G. Jones

One was the rise of writs of assistance, commanding the sheriff of the relevant county, following contempt of a Chancery injunction, to maintain the plaintiff in possession of land, there being no need for the defendant first to have been imprisoned. These writs appear to have had their origins in the first decades of the seventeenth century, and to have been well established by the 1660s.105 The other was the rise of the use of sequestration to impound the defendant’s goods, and his profits derived from land. This process seems to have originated towards the end of the sixteenth century,106 though it appears to have been uncommon before the 1660s for property to be sequestrated other than that which was subject to the Chancery suit.107 Sequestration did not depend upon the defendant first being imprisoned for contempt.108 Sequestrators on mesne process could not sell sequestrated goods other than for the payment of costs, but where sequestration issued in support of a decree, sale of leases and chattels (though not of freehold land) became possible, with consent of the court.109 In the early period of the emergence of sequestration opposition was encountered from the common law courts,110 but by the later 105  Ibid., p. 26; Spence, Equitable Jurisdiction of the Court of Chancery, vol. 1, pp. 391–392. 106  See, for example, Inhabitants of Burntwood v Broune, C 33/41 f. 385 (1571) (the defendant being found in contempt, if he ‘do not appear upon the … attachment then this court minds to take further order concerning the sequestration of the profits of the lands in variance’); Cary v Mathewe, C 33/60 f. 350 (1580) (sequestration of the rents and profits of land in question until the matter should be ‘heard and determined or otherwise ordered by this court’); Grombolde v Grombolde, C 33/77 f. 791v (1589) (upon disobedience by the defendant to an order to convey land, direction by the chancellor to arbitrators appointed by the court to ‘take some good order for the sequestration of the possession’ of lands in variance ‘into the hands of some meet and indifferent persons until this court shall have heard and determined or otherwise ordered the cause’). 107  In Awbrey v George (1601), the court having forborne to grant sequestration of property not in dispute as a means of enforcing a decree against a contumacious defendant, C 33/99 f. 266v (printed in: Monro, Acta Cancellariae, pp. 757–758), counsel referred to ‘several precedents made in like cases’ for such sequestration, and was required to produce precedents from the time of Bacon LK or before (that is, from before 1580). It does not appear that such precedents were produced, the matter being dealt with by imprisonment of the defendant, C 33/99 f. 424 (printed in Monro, Acta Cancellariae, pp. 758–759), C 33/99 f. 733, 775v. 108  Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’, pp. 29–30. 109  Ibid., pp. 28 ff (editor’s introduction), and pp. 311–315. See also the discussion of sequestration ‘for learning’s sake and for use’ by Lord Nottingham LC in Coulston v Gardner (1681) in: D. E. C. Yale (ed.), Lord Nottingham’s Chancery Cases, vol. 2, p. 869, no. 1090, also reported at 3 Swanston 279, and 2 Ch. Cas. 43. 110  Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’, pp. 35–37. Compare Stone v Parry, C 33/83 f. 312v (1592) (a will of land to charitable purposes having provided, should doubts arise, that they were to be determined by the justices



The English Court of Chancery87

seventeenth century the process was an established aspect of Chancery procedure.111 In relation to changes in the court’s substantive jurisdiction, while suits for testamentary legacies as such were rare in Chancery in the Elizabethan period – suits for simple legacies at that time being handled in the ecclesiastical courts112 – in the seventeenth century and later the court developed a more extensive jurisdiction over testamentary matters, this being assisted by the court’s capacity to take accounts,113 its ability to trace property and charge it in the hands of those to whom it did not properly belong, and the frequent need to seek relief against penalties.114 The bankruptcy statute 13 Eliz. I, c. 7 (1571) provided in certain circumstances in relation to traders, for the chancellor to appoint commissioners with power to take order and direction in respect of the person and property of a bankrupt. While this conferred no direct jurisdiction upon the chancellor, nor control over the commissioners, by the 1670s, in the time of Lord Nottingham, Chancery had begun to entertain applications in respect of difficulties encountered in the execution of bankruptcy commissions, though it was not until the time of Lord Hardwicke (1737–56) that Chancery’s bankruptcy jurisdiction expanded, Lord Hardwicke adjudicating ‘upon almost every question which a jurisdiction in bankruptcy involved’.115 Relief against penalties had long been an aspect of Chancery jurisdiction,116 and by the seventeenth century it had developed a jurisdiction over mortgages, out of which developed the mortgagor’s equity of redemption, the of assize in the county in question, the justices had ordered sequestration, the continuance of which was ordered in Chancery). 111  As Sir Henage Finch LK (later Lord Nottingham LC) said of sequestrations in 1674, ‘The power of the Court will utterly fail, if this process fail; for no decree will ever be obeyed’: Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’, p. 312. 112  Jones, Elizabethan Court of Chancery, p. 409. 113  Ibid., pp. 403–404; ‘The power to take, verify, or challenge accounts, coupled with the normal power of discovery, produced an effective means of ascertaining assets out of which Chancery could order the payment of debts’: ibid., p. 404. See also Holdsworth, History of English Law, vol. 1, pp. 628–629. 114  Yale (ed.), Lord Nottingham’s Chancery Cases, vol. 2, p. 147. 115  Holdsworth, History of English Law, vol.  1, pp. 470–471. See generally D. E. C. Yale (ed.), Lord Nottingham’s Chancery Cases, vol. 1, Selden Society, 73, 1957, pp. cxiv–cxx; Holdsworth, ibid., pp. 470–473. 116  See, for example, Sir William Capell’s Case (1494), where Morton C observed ‘[w]hen someone is beholden to another in a principal debt, the debtee cannot in conscience take anything in respect of this indebtedness except the principal debt, even if the debtor is bound to him in twenty penalties’: J. H. Baker (ed.), The Notebook of Sir John Port, Selden Society, 102, London, 1986, pp. 13–14 at 14.

88

N. G. Jones

jurisdiction over mortgages coming, together with the long-standing jurisdiction over trusts, to represent one of the ‘twin pillars of substantive equity’.117 (c) The court’s practice as compared with normative sources As has been seen, one aspect of normative sources relating to the Chancery jurisdiction was the so-called statutes of due process. Despite this, as has been seen, the Chancery in practice entertained suits concerning property, including suits concerning freehold land; indeed, it has been suggested that, at least in the mid sixteenth century, ‘land cases dominated the Court’s business’.118 A further question concerning the relationship between the Chancery’s j­urisdiction and legislation defining the scope of jurisdictions touched upon the relationship between the Chancery and a group of medieval statutes providing against calling common law judgments into question in other courts. This came to a head in the 1610s as an aspect of dispute over the issue by the Chancery of common injunctions to restrain the execution of common law judgments, and is considered below. Beyond the topic of the boundaries of jurisdiction between Chancery and other courts, a question arises as to the concept of ‘equity’, and the extent to which it may have operated in Chancery in a normative sense. The concept of ‘equity’ was being applied to the Chancery jurisdiction by the 1530s. The term is rare in Chancery pleadings before that time,119 plaintiffs during the chancellorships of Wolsey (1515–1529) and More (1529–32) most frequently 117  Yale (ed.), Lord Nottingham’s Chancery Cases, vol. 2, p. 8, referring to Blackstone. For an outline of the development of the jurisdiction over mortgages see Baker, Introduction to English Legal History, pp. 330–333. The account in the leading monograph, R. W. Turner, The Equity of Redemption: Its Nature, History and Connection with Equitable Estates Generally, Cambridge, 1931, requires significant revision: see D. P. Waddilove, Emmanuel College v Evans (1626) and the History of Mortgages, in: Cambridge Law Journal, 73, 2014, p. 142. 118  Henderson, Legal Rights to Land in the Early Chancery, p. 106. (The suggestion is based upon the evidence of the enrolled decrees, which do not reflect all of the court’s business.). 119  In a sample of about 130 Chancery bills concerning uses in the time of Wolsey and More (that is, in the period 1515–32), five included the term ‘equity’, in the phrases ‘right, equity and good conscience’ (C 1/623/8), ‘equity, right and good conscience’ (C 1/552/34, C 1/586/62), and ‘equity and justice’ (C 1/498/30, C 1/619/1). Of these, two (C 1/623/8 and C 1/619/1) date from More’s chancellorship, and are thus later than the publication of the first dialogue of Doctor and Student in 1528. The other three date from the period 1518–29. (The bills cannot be precisely dated, the only means of dating them being by reference to the name, style and titles of the chancellor to whom they are addressed.).



The English Court of Chancery89

seeking a remedy in accordance with ‘right and good conscience’.120 By the Elizabethan period, in contrast, the term ‘equity’ was firmly associated with the Chancery’s jurisdiction, Nicholas Barham, serjeant at law, for example, explaining a point of trusts law in his report of Bertie v Herenden (1560) as being contrary to the common law ‘by reason of equity’.121 The application of the term ‘equity’ to the Chancery jurisdiction seems to have been closely associated with its use in relation to the Chancery – in a sense ultimately derived from Aristotle – by Christopher St German in his book Doctor and Student, published in two parts in 1528 and 1530.122 But ‘equity’ in the Aristotelian sense – a means of correcting law where it was defective because of its universality – did not readily explain significant aspects of the Chancery’s activities, such as the jurisdiction to give relief against bonds: ‘equity’ became a label for the Chancery’s jurisdiction, but had little power to provide any theoretical basis for what the court did.123 (d) Contested jurisdiction Jurisdiction might be declined in Chancery in the narrower period on a variety of grounds. It was common for a plaintiff in Chancery who had failed to sustain his bill to be dismissed to take what remedy he might at common law.124 A plaintiff himself might ask for dismissal of his suit to the common law,125 or 120  A number of other phrases also appear in bills in this period, including ‘reason and good conscience’ (e. g. C 1/453/7), ‘justice and good conscience’ (e. g. C 1/458/ 20), ‘law, right and good conscience’ (C 1/477/22), and ‘truth and good conscience’ (e. g. C 1/522/33). 121  Sir John Baker, Baker and Milsom, Sources of English Legal History: Private Law to 1750, 2nd ed., Oxford, 2010, p. 143. The report was written in 1572. 122  Plucknett/Barton (eds.), St German’s Doctor and Student, London, 1974. 123  D. Ibbetson, A House Built on Sand: Equity in Early Modern English Law, in: E. Koops/W. J. Zwalve (eds.), Law & Equity: Approaches in Roman Law and Common Law, 2014, Leiden, pp. 55–77. Mark Fortier observes, from the printed Chancery reports in the early modern period, that ‘[i]t is not clear that in any of these cases the word equity means anything more than the rules and power of Chancery, as opposed to or in conjunction with “justice” or the common law’: M. Fortier, The Culture of Equity in Early Modern England, London, 2005, p. 60. 124  As a single example among many, in St Leger v Culpepper (1585) C 33/71 f. 21v, the Chancery plaintiff who had failed to make ‘any good or sufficient proof of the matter contained in his bill’, concerning arrearages of a charge upon certain lands, was dismissed, and ‘referred to take what remedy he can by the ordinary course of the common laws of this realm’. 125  E. g. Watts v Nowell (1566) C 33/33, f. 111 (no reason for the request is given in the entry; it was granted upon payment of costs to the defendant, the plaintiff entering into a bond to allow the defendant possession of the land in question until recovery of possession by the plaintiff be ordered at common law), City of London v

90

N. G. Jones

dismissal to law might occur with the assent of both parties.126 Dismissal might follow a conclusion that the matter in issue was more properly to be tried at common law. So in Drewe v Bateman (1585)127 it was found that the plaintiff had failed to prove title to the lands in question, and that the ‘matter is meetest to be decided and tried by the course of the common laws of this realm’. This being so, the plaintiff was dismissed to take her remedy at law. Similarly, in Kingeston v Miller (1596),128 both parties claiming copyhold land by grants made in the court of the manor, and the right depending upon which grant was the earlier, the matter was dismissed to law to be tried by jury upon a special issue as to the precedence of the grants. Dismissal might also follow a simple failure by the plaintiff to show matter attracting the Chancery’s jurisdiction. So in Clerke v Lee (1596)129 it appeared ‘by the plaintiff’s own showing in the bill’, that he had a remedy at common law, upon which he was ordered to show cause why he should not be dismissed thence.130 In the same year, an attempt in Siltoppe v Clerke131 to avoid the same fate failed, it being found that ‘to give jurisdiction to this court’ the plaintiff, seeking relief upon a conditioned bond, had added to his bill an allegation that the defendant detained certain deeds and evidences. This being found to be untrue, the plaintiff was dismissed, paying costs to the defendant. In dismissing to trial at law, Chancery might make provision for the conduct of the trial. So in Callowe v Hill (1596)132 the matter was dismissed to trial at law, being ‘more meet’ to be decided there, and the defendant was ordered to permit the plaintiff to take a copy of a lease, to show the lease at the plaintiff’s request at common law, and to appear, put in bail, and answer to any action brought by the plaintiff for trial of the matter at common law. And in Gratwick v Butcher (1605),133 it being found that the question was whether the land in dispute were entailed or not, the suit was dismissed to the common law, being ‘more meet’ to be tried there, order nevertheless being made for the plaintiff in Chancery to examine both of the defendants upon interrogatories as to their knowledge of the entail.

Coghill (1626) C 33/151 f. 71 (no reason for the request is given in the entry; it was granted upon payment of costs to the defendant). 126  E. g. Strowde v Arnold (1575) C 33/51 f. 27v. 127  C 33/71 f. 5v. 128  C 33/89 f. 23v. 129  C 33/89 f. 97. 130  The plaintiff’s cause was not helped by the fact that his bill extended to sixty sheets. 131  C 33/89 f. 97. 132  C 33/89 f. 55. 133  C 33/109 f. 30.



The English Court of Chancery91

Dismissals occurred also to courts other than those of common law. So in Withington v Pickard (1575),134 it was found that the plaintiff had failed to make proof of title to the copyhold lands which he claimed, and that the matter was ‘meeter to be decided ended and determined’ in the court of the lord of the manor. The bill was dismissed, and the defendant referred to take his remedy ‘by the order of the common law’ in the lord’s court.135 In Wolfe v Keblewhite (1585),136 the matter being not for land, but to be relieved upon an obligation of twenty marks, and the defendant being a ‘privileged person’ in the University of Oxford, the matter was dismissed, and the plaintiff referred to take his remedy before the chancellor of the university or his commissary.137 And in Berry v Heyman (1605),138 the plaintiff’s bill being for relief upon a legacy, the matter was dismissed, with the plaintiff’s consent, to the ecclesiastical court, as ‘properly belonging to the same court’. In some cases a plaintiff in Chancery was given a choice between proceeding in Chancery or in another jurisdiction. This was so in Lideat v Fisher (1605),139 where it was found that the plaintiff had exhibited a bill in Chancery to be relieved upon a statute of £600, or an extent upon it, and also an audita querela140 at common law concerning an alleged omission in the extent. In ‘respect of the said double vexations’, the court thought it meet that ‘the plaintiff should surcease one of the said suits at his election’, upon which the plaintiff chose to proceed in Chancery.141 Similarly, in Powell v Dutton (1605),142 the plaintiff, having exhibited a bill in Chancery concern33/51 f. 51v. also Beache v Goring (1574) C 33/47 f. 312v, C 33/49 f. 120v (printed in Monro, Acta Cancellaria, pp. 416, 420) (a question of manorial custom concerning guardianship of an infant heir referred to be tried in the manor court, with provision for the selection of a jury from the homagers of the court). 136  C 33/71 f. 32v. The defendant, Roger Keblewhite MA (d. 1586), was a former fellow, bursar, and vice-president of St John’s College, Oxford: A. Hegarty, A Biographical Register of St John’s College, Oxford, 2011, p. 86. In relation to the privilege of the universities of Oxford and Cambridge, see Jones, Elizabethan Chancery, pp. 373–374. 137  In contrast, in Marlowe v Doddington (1585) C 33/89 f. 84, the defendant’s plea to the jurisdiction on the ground that he was privileged in the Exchequer failed, the court remembering that divers special officers and members of the Exchequer had previously been compelled to answer in Chancery. For Exchequer privilege see also Jones, Elizabethan Chancery, pp. 342–343. 138  C 33/109 f. 6v. 139  C 33/109 f. 19. 140  For audita querela see T. F. T. Plucknett, A Concise History of the Common Law, 5th ed., London, 1956, pp. 393–394. 141  Having obtained a Chancery decree in his favour, the plaintiff, not satisfied, refused it, and sought dismissal from Chancery in order to pursue the audita querela. 142  C 33/109 f. 67. 134  C

135  See

92

N. G. Jones

ing copyhold land, had commenced an action at common law in relation to the same land. Ellesmere LC thinking it ‘unfit’ that the defendant should be ‘molested in two courts for one cause’, ordered the plaintiff to make election between proceeding at common law and being dismissed from Chancery, or proceeding in Chancery and having his action at law stayed. And in Aske v Robinson (1607) the plaintiff, who had commenced suit in the Council in the North, and subsequently in Chancery, was ordered to choose ‘in which of the said courts he will proceed’, failing which, the defendant was to make a choice, ‘for that this court likes not that the … plaintiff should proceed in two courts for one cause’.143 A dismissal from Chancery might follow a showing that the matter in question had already been determined in another jurisdiction. In Gryffyn v Thomas (1565)144 it was found that the parties both dwelt within the jurisdiction of the Council in the Marches of Wales, and that the matter in question had already been ordered before the Council, whereupon the suit was dismissed to the order and determination of the Council. Similarly, in Osborne v Sandford (1575)145 it was found that the defendant had obtained judgment at common law for the land in question, followed by a writ to the sheriff to put him into possession. It was ordered that the defendant be no more compelled to answer the plaintiff’s suit in Chancery. Dismissal from Chancery on ground of litigation elsewhere did not depend upon that litigation having reached a conclusion. In Crowche v Rolles (1566),146 the defendant had been ordered to answer the plaintiff’s bill, but was in the meantime ‘not forbidden from the common law’ to sue the plaintiff. The defendant having obtained a common law verdict against the plaintiff’s father, through whom the plaintiff claimed the parsonage in question, the suit in Chancery was dismissed. And in Yelverton v Athowe (1605),147 the plaintiff had commenced an action at common law against the defendant’s servant concerning title to land, after which he had exhibited a bill against the defendant in Chancery. The defendant having answered in Chancery and proceeded to examination of witnesses, the plaintiff had further prosecuted 143  C 33/111 f. 290; see also Monro, Acta Cancellariae, pp. 67–69 (the plaintiff chose to proceed in Chancery). Similarly, in South v Fawkner, C 33/139 f. 436 (1620) the plaintiffs, suing for legacies, were given an election between proceeding in Chancery or proceeding in the ecclesiastical court, having commenced suits in both courts, see also Monro, Acta Cancellariae, pp. 290–291. For further examples of concurrent litigation in both Chancery and elsewhere see Smith, Sir Edward Coke and the Reformation of the Law, pp. 227–229. 144  C 33/33 f. 84. 145  C 33/51 f. 13. 146  C 33/33 f. 75v, 96. 147  C 33/109 f. 72.



The English Court of Chancery93

his action at law. The defendant being ‘doubly vexed’ for one cause, a master was ordered to report whether the matters were the same. If so, the plaintiff was to be dismissed from Chancery and pay costs to the defendant.148 In Crowche v Rolles the defendant had been permitted by the Chancery to proceed at common law, and in Yelverton v Athowe the common law action had been commenced before that in Chancery. In contrast, in Cater v Strong (1566),149 an action at common law for the same matter had been commenced by the Chancery defendant after the exhibition of the bill in Chancery, upon which (the plaintiff giving security for the truth of his allegation in this regard), an injunction was ordered to restrain the action at common law until further order. An injunction was similarly ordered against an action at law for the same matter commenced by the Chancery plaintiff after he had exhibited his Chancery bill in Hibbins v Crowther (1575).150 The practice of staying proceedings at law simply on the ground of priority of suit was ended by Bacon LC in the earlier seventeenth century, the practice thereafter, in cases where the matter might proceed either at law or in Chancery, being to allow the defendant to compel the plaintiff to make a choice between the jurisdictions.151 In some contexts no remedy was available in Chancery as a matter of principle. This appears to have been true, at least in some circumstances, of arrangements which might operate so as to circumvent the royal feudal revenue, Egerton LK saying in 1597 that he would give ‘[n]o relief in equity touching leases of one thousand years, because they tend to defraud the 148  See also Sacheverell v Howcot C 33/151 f. 78v (1626), where part of the reason for an order for the dissolution of an injunction against an action at law, unless contrary cause were shown, was that the parties had been at issue and ready for trial at common law before the bill was exhibited in Chancery. 149  C 33/33 f. 39. 150  C 33/51 f. 93v. For another example see Durdant v Howlt (1585) C 33/71 f. 17. In some cases it is unclear from the record which of the common law or Chancery proceedings was commenced first, this is true, for example, of Williams v Williams (1566) C 33/33 f. 23v. 151  Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’, pp. 70–71, referring to Bacon’s twenty-first Chancery ordinance: ‘No injunction to stay suites at the law shall bee granted upon priority of suite onely …’ See, for example, Fowke v Offly, C 33/151 f. 41v (1626), where the defendant, having commenced action at law and a suit in Chancery, was compelled to elect whether he would proceed in Chancery and stay his action at law, or be dismissed from Chancery. A different approach may have been taken to priority of suit in respect of the ecclesiastical courts, see Sherwood v Ducke, and Ducke v Benfield, C 33/151 f. 61v (1626), where proceedings in the ecclesiastical court were stayed on the ground that Ducke had exhibited a bill in Chancery to be relieved against those proceedings, ‘he being by priority of suit questioned in this court’.

94

N. G. Jones

crown’.152 It was true also of matters which in their nature were either trivial, or frivolous. In Worth v Baskerville (1626)153 it was found that the bill in Chancery was to be relieved upon a parol agreement against a deed, ‘and that the same agreement was made among players, which the court conceived unfit to be relieved or countenanced in a court of equity’, and dismissed the bill.154 The court would similarly dismiss matters of small weight and importance, as suits for a shirt and a coif,155 for one and half acres of land,156 for a horse,157 for the right to enter a garden to dry washing,158 for taking away a swarm of bees,159 and for debts of 44s. and 4s. 8d.,160 and for 8s. for the 152  Risden v Tuffin (1597) Tothill 122; British Library (BL hereafter) MS. Harg. 281, f. 184; BL MS. Lansd. 640, f. 12v; BL MS. Stowe 572, f. 73v; Cambridge University Library MS. Gg.2.31, f. 230. See also Bryson (ed.), Cases Concerning Equity, vol. 1, p. 264, no. 118–[263]. It appears from the record that the defendant’s name was Saffyn, and that the term was for 3,000 rather than 1,000 years: C 78/138/14; C 33/94 f. 460. For further discussion see N. G. Jones, Estate Planning in Early Modern England: ‘Having’ in the Statute of Wills 1540, in: J. Tiley (ed.), Studies in the History of Tax Law, vol. 1, Oxford, 2004, p. 227 at 237–241, and N. G. Jones, The Influence of Revenue Considerations upon the Remedial Practice of Chancery in Trust Cases, 1536–1660, in: C. W. Brooks/M. Lobban (eds.), Communities and Courts in Britain, 1150–1900, London, 1997, pp. 99 at 108–111. The court might also handle with care arrangements which were usurious, see Monro, Acta Cancellariae, p. 47, referring to a report of 1605 by Sir Matthew Carew, master of Chancery, in Bridges v Bromwich, that the defendant had put in suit a bond upon which there was nothing due to him ‘but for usury money, for which no action ought to lie … Neither does this Court any way allow thereof, but utterly detesteth’. 153  C 78/297/11. 154  The players were Queen Anne’s Men; the first-named plaintiff, Ellis Worth, was a leading member of the company, and later of the Revels company and of Prince Charles’s troupe: G. E. Bentley, The Troubles of a Caroline Acting Troupe: Prince Charles’s Company, Huntington Library Quarterly, 41, 1978, pp. 217–249 at 220. See also Power v Coppinger (1616), where Sir John Benet, master of Chancery, reported a bill to be relieved upon debts incurred in playing dice ‘derogatory to the honour of the court’, and recommended that it be dismissed, Monro, Acta Cancellariae, p. 219. 155  Dutton v Philcocks (1566) C 33/33 f. 32v, ‘… such trifles as this court thinks not meet to hold plea of but rather to be determined in some mean court …’ 156  Durban v Durban (1566) C 33/33 f. 78v. The situation was aggravated by the plaintiff’s having added to the bill the hand of one Mr Hove, who knew nothing of the matter. The plaintiff was dismissed, paying costs. 157  Blighe v Lee (1566) C 33/33 f. 95. The situation was aggravated by the fact that the plaintiff had commenced action at common law for the same matter. 158  Hanby v Northage (1579) C 33/60 f. 36 (reported, sub nom. Hamby v Northage, Cary 76). 159  Johns v Morgan (1566) C 33/33 f. 35 (dismissed to the Council in the Marches of Wales). For further examples see Monro, Acta Cancellariae, pp. 58–59. 160  Connye v Lamer (1609), Monro, Acta Cancellariae, p. 119 (master’s report concluding the suit fit to be dismissed).



The English Court of Chancery95

hire of a cow.161 In Elizabeth’s time by general rule bills for matters ‘under the value of £10 … should be dismissed upon the first hearing’;162 claims for land not exceeding six acres, unless worth more than 40s. per annum, were likewise routinely dismissed.163 (e) Acknowledgment of jurisdictional change, or of jurisdictional problems While tensions between the central courts of common law and the court of Chancery should not be over-stated,164 a very prominent jurisdictional problem concerned Chancery intervention in litigation at common law by means of the issue of common injunctions, the most pressing (but not sole) aspect of which concerned Chancery intervention after judgment at law, with the effect of preventing the enforcement of the judgment.165 Intervention after judgment was complained of in the Lords’ articles against Wolsey on his fall in 1529, which asserted that, as chancellor, he had ‘examined divers and many matters in the Chancery after judgment thereof given at the common 161  Parker v Copping (1624), Monro, Acta Cancellariae, p. 313 (master’s report concluding the suit fit to be dismissed). 162  Bery v Tailor (1566) C 33/33 f. 87v. See also Taylor v Wood (1605) C 33/109 f. 70v (land not worth £10 to be sold, and not above 10s. yearly value). 163  E. g. Baker v Woodhowse (1575) C 33/51  f. 3v; London v London (1585) C 33/71 f. 25. See also Jones, Elizabethan Chancery, pp. 197–198, and references there. In the 1610s the rule in respect of goods and chattels under the value of £10, and land under the value of 40s. per annum was repeated: Bryson (ed.), Cases Concerning Equity and the Courts of Equity, vol. 2, p. 403, no. 203 (1612), Monro, Acta Cancellariae, p. 213 (1614). Compare Lawrence v Charman (1626) C 33/151 f. 59, where, in a suit concerning a will, the Chancery, while inclined to dismiss it as being ‘not proper to be determined by this court, but by the ecclesiastical court’, nevertheless made an order, the matter being ‘petty, and will cost more the trying in the ecclesiastical court tha[n] the estate amounts unto’, and Peake v Peareson C 33/151 f. 87v (1626), where the question in issue as to whether the defendant had assets was held ‘fit to be tried at law’, but because the matter was of ‘small value and the parties are poor’, it was ordered that Sir Edward Leech, master of Chancery, near whom the parties lived, should hear and finally determine it. 164  See, for example, Jones, Elizabethan Court of Chancery, p. 20: ‘Part of the trouble has risen from the logical attraction of explaining the obvious anxieties of the legal system in terms of the tensions generated between courts dissimilar in character. Yet the concrete collisions of later Tudor England took place between the Chancery and the equitable jurisdiction of the council in the Marches of Wales, or, as evidenced in the affair of indebitatus assumpsit, between the King’s Bench and the Common Pleas’. For an outline of the ‘affair of indebitatus assumpsit’ see Baker, Introduction to English Legal History, pp. 363–368. 165  See generally, Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’, pp. 7–16.

96

N. G. Jones

law’.166 Though a signatory to the articles against Wolsey, his successor, Thomas More, continued to issue common injunctions, his practice in doing so being ‘identical to that of his predecessor’,167 albeit More, ‘the judge’s son’,168 succeeded in persuading the judges that ‘they in like case could have done no otherwise themselves’.169 Difficulties over common injunctions after judgment surfaced again in the famous clash between Sir Edward Coke, chief justice of the King’s Bench, and Thomas, Lord Ellesmere, chancellor, in the 1610s, which has received extensive discussion elsewhere.170 The answer to the legality of Chancery intervention after judgment at law, which, in Coke’s view, ‘would tend to the subversion of the common law, for that no man would sue at the common 166  Baker, Oxford History of the Laws of England, p. 176. The signatories included Sir Thomas More, Fitzjames CJKB, and Fitzherbert JCP. Difficulties over common injunctions were not entirely new in the sixteenth century, see Holdsworth, History of English Law, vol. 1, p. 459. 167  Guy, Public Career of Sir Thomas More, p. 86. 168  F. W. Maitland, English Law and the Renaissance, Cambridge, 1901, p. 5. More’s father, John More, was successively a justice of the Common Pleas (1518– 20), and of the King’s Bench (1520–30). 169  W. Roper, The Life of Sir Thomas More, in: R. S. Sylvester/D. P. Harding (eds.), Two Early Tudor Lives, New Haven, 1969, pp. 221–222. For further discussion see Baker, Oxford History of the Laws of England, pp. 46–48; Guy, Public Career of Sir Thomas More, pp. 83–89. For Elizabethan examples of common injunctions after judgment at law see Sadler v Sowthcote, C 33/69 f. 217v (1584) (injunction upon pain of £4,000 not to execute judgment obtained at common law upon a bond of £200 made in trust) (and maintenance of the injunction: C 33/69 f. 358v (1585)); Fowler v Heynes, C 33/71 f. 10v (1585) (defendant in Chancery having obtained judgment at common law through a mistake by the plaintiff in Chancery’s counsel, and the defendant in Chancery not having properly answered, injunction issued upon pain of £200 restraining the defendant in Chancery from proceeding to execute the judgment at law until he had answered the bill, satisfied his contempt, and shown ‘sufficient cause wherefore he should have the benefit of his execution’). For early Jacobean examples, see Colles v Burrell, C 33/109 f. 51 (1605), and Isabelle, Countess of Rutland v Dean and Chapter of Oxford, C 33/109 f. 41v (1605). Chancery intervention after a common law judgment had been executed might be a different matter, see Monro, Acta Cancellariae, pp. 26–27, referring to Tolson v Curwen (1601), where a suit in Chancery after common law judgment had been executed was dismissed (C  33/102 f. 1v), Master Dr Hunt having reported that ‘if causes of this nature should be retained in this Court, to rip up and re-examine verdicts, judgments, and executions at the Common Law, the precedent might be perilous’. 170  See, inter alia, J. Baker, The Common Lawyers and the Chancery, 1616, Irish Jurist, 4, 1969, p. 368, reprinted in Sir John Baker, Collected Papers on English Legal History, vol. 1, Cambridge, 2013, p. 481; Brooks, Law, Politics and Society in Early Modern England, pp. 142–152; D. Ibbetson, The Earl of Oxford’s Case (1615), in: C. Mitchell/P. Mitchell (eds.), Landmark Cases in Equity, Oxford, 2012, p. 1; Jones, Elizabethan Court of Chancery, pp. 462–473; Smith, Sir Edward Coke and the Reformation of the Law, pp. 238–248.



The English Court of Chancery97

law but originally begin in Chancery, seeing at the last he might be brought thither’171 – and might even amount to a criminal offence172 – lay ‘outside the cases, the courts and the law’, its resolution ‘a product of politics and the exercise of the King’s will’,173 in the form of a decree in favour of the Chancery by James I, sitting in Star Chamber in 1616: ‘understand me aright; I mean not, the Chancery should exceed his limit; but on the other part, the King only is to correct it, and none else. And therefore sitting here in seat of judgment, I declare and command, that no man hereafter presume to sue a premunire against the Chancery’.174 The decree, together with Coke’s dismissal as chief justice in 1616 and Ellesmere’s death in 1617, quieted the dispute, and among the orders of Francis Bacon, Ellesmere’s successor as chancellor,175 was provision that while matters already determined at common law might be admitted in Chancery ‘according to the ancient custom’, this was to be done only ‘after solemn and great deliberation’, with sureties from the plaintiff, and any decree was to contain ‘no words to make void or weaken the judgment’, but only to correct the conscience of the party.176 So in Tailer v Singer177 it was found in 1626 that the plaintiff in Chancery had obtained an injunction to stay proceedings at law ‘upon mere suggestions’, the defendant in Chancery having 171  E. Coke, The third part of the Institutes of the laws of England: concerning high treason, and other pleas of the crown, and criminall causes, London, 1648, pp. 124–125, reporting what he asserted to have been the resolution of all the judges in Finch v Throckmorton (1597), that Chancery intervention after judgment at law was unlawful. See also Coke, The Fourth Part of the Institutes, p. 86, and W. H. Bryson (ed.), Cases Concerning Equity and the Courts of Equity, 1550–1660, vol. 2, pp. 441–442. Coke, as attorney-general, made a similar point in Cardinal v De La Brocke (1606), suggesting that if ‘the court of conscience can examine the equity of them [scil. common law judgments] and compel the party to release them or to endure perpetual imprisonment, it will be in effect as if that they can to make the judgment by their decree’: Bryson (ed.), Cases Concerning Equity and the Courts of Equity, vol. 2, pp. 344–345, no. 130 at p. 345. 172  That is, the offence known as praemunire, see Baker, The Common Lawyers and the Chancery, pp. 216–218 (Collected Papers, vol. 1, pp. 495–497). That praemunire would lie for obtaining a Chancery injunction in respect of a plea pending in the Common Pleas had been asserted in the early 1580s, see Bryson (ed.), Cases Concerning Equity and the Courts of Equity, vol. 1, p. 110, no. 27. 173  Ibbetson, The Earl of Oxford’s Case, p. 32. 174  Baker, The Common Lawyers and the Chancery, p. 221 (Collected Papers, vol. 1, p. 502). The full speech is printed in: C. H. McIlwain, Political Works of James I, Cambridge MA, 1918, pp. 326–345. 175  Chancellor 1617–21. 176  J. Spedding/R. L. Ellis/D. D. Heath (eds.), The Works of Francis Bacon, vol. 7, Boston, 1859, p. 764. 177  C 33/151 f. 83v.

98

N. G. Jones

denied the plaintiff’s allegations against him, and having obtained verdict and judgment at law, whereas the plaintiff, having taken a commission to do so, had failed to examine witnesses. This being so, it was ordered that unless the plaintiff showed good cause to the contrary, the injunction should be dissolved. But quiet was not complete. Coke was one of the leaders of an attack upon the Chancery in the parliament of 1621,178 insisting that ‘Chancery could not meddle in matters determinable at common law … and that it ought to be strictly subordinated to the common-law courts’.179 In the same year the Chancery clerk George Norbury, who had assisted a parliamentary committee established to investigate complaints against the Chancery, presented to Williams LK his ‘Abuses and Remedies of the High Court of Chancery’, maintaining that the court should entertain matters of ‘fraud, trust, extremity, or casualty; or else not lightly to be dealt in here’.180 More radical reform, even abolition of the court, was considered during the Interregnum, and in 1653 the ‘Barebone’s Parliament’, ‘in which few lawyers sat among the saints, lightheartedly voted the abolition of the Court after a single day’s debate as a necessary preliminary to the work of modifying the ungodly jumble of the law “into the bigness of a pocket book, as it is proportionable in New England and elsewhere”’.181 Abolition was not achieved, though ‘much useful regulation’ was, and ‘the machinery of the Court as revised by the Restoration ordinances continued to benefit from this period of reform’.182 In 1665 a parliamentary bill to ‘regulate’ proceedings in equity was passed in the Commons but failed in the Lords. In 1677 the Commons resolved that a bill should be drawn in response to grievances caused by equitable intervention in matters determinable at law, though no progress was made, and further unsuccessful attempts at legislative reform followed in the 1690s.183 178  S. D. White, Sir Edward Coke and the Grievances of the Commonwealth, Manchester, 1979, pp. 59 ff.; R. Zaller, The Parliament of 1621: A Study in Constitutional Conflict, Berkeley, 1971, pp. 90–97. An earlier attempt at legislative reform had been made in 1614, in a bill which would have prevented the reversal of any judgment at common law other than upon writ of error: Zaller, Parliament of 1621, p. 91. 179  White, Sir Edward Coke and the Grievances of the Commonwealth, p. 60. 180  Norbury’s tract is printed in: F. Hargrave (ed.), A Collection of Tracts Relative to the Law of England, London, 1787. On Norbury see N. G. Jones, Norbury, George (fl. c. 1586–1634), Oxford Dictionary of National Biography, Oxford, 2004 (https:// doi.org/10.1093/ref:odnb/70485). 181  Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’, pp. 15–16. 182  Ibid., p. 15. 183  These post-Restoration events are summarised in M. Macnair, Common Law and Statutory Imitations of Equitable Relief under the Later Stuarts, in: Brooks/Lobban (eds.), Communities and Courts, pp. 115–131 at 116–118.



The English Court of Chancery99

As had been the case earlier in the century, these attacks owed something to politics,184 and took place against the background of ‘significant moves to harmonise common law doctrine and practice with equity’.185 By the 1670s Lord Nottingham LC ‘took the view that in some cases at least a verdict and judgment at law could be pleaded in equity to bar proceedings there’,186 and the judges, ‘if still not entirely reconciled to Equity, [were] yet prepared to view the jurisdiction more liberally and generally prepared to accept what they realised they could not substantially alter’.187 A question arose also as to the extent to which the chancellor’s jurisdiction, exercised by a single individual, might be regarded as a matter of mere discretion. Opponents of the jurisdiction found supposed arbitrariness an easy target. ‘The word “conscience” has a fluid, subjective connotation’,188 and while St German understood conscience to be a ‘form of applied knowledge’, which ‘must always be founded on some law’,189 the anonymous author of the Replication of a Serjeant at the Laws of England to St German’s Doctor and Student, took a different view: if that the kinges subgiettes shulde be drevyn and constraynede to be ordreded by the discrecion and conscience of oon man, they shulde be put to a greate uncertayntie, this whiche is ayenste the commen well of any realme. And so me semethe, it is not oonly againste the commen lawe, but also ayenste the lawe of reason, and ayenste the lawe of God, and ayenste the commen well of this realme.190 184  Macnair, 185  Ibid.

186  Macnair,

Common Law and Statutory Imitations of Equitable Relief, p. 118.

Common Law and Statutory Imitations of Equitable Relief, p. 116. (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’, p. 74. 188  Baker, Introduction to English Legal History, p. 115. 189  Plucknett/Barton (eds.), St German’s Doctor and Student, p. xxvi. See also D. R. Klinck, Conscience, Equity and the Court of Chancery in Early Modern England, Aldershot, 2010, pp. 52–71. 190  Guy, St German on Chancery and Statute, p. 101. The authorship of the tract is uncertain. It has been suggested that St German himself may have written it as a literary device in the context of the controversy generated by Doctor and Student, but there is no clear evidence either way: Guy, St German on Chancery and Statute, p. 57. Similar concerns as to a one-man court were voiced by Thomas Audley in his reading on the statute 4 Hen. VII, c. 17 in the Inner Temple in 1526, suggesting that by reason of uses the good laws of the realm had been turned ‘into a law called “conscience”, which is always uncertain and depends for the greater part on the whim (arbitrement) of the judge in conscience’: Baker, Baker and Milsom, Sources of English Legal History, p. 118. See also Edward Hake’s observation in the 1590s that the equity of the Chancery ‘is drawne owte and deryved allonly from the conscience of the Lord Chancellor or the Lord Keeper, who (as every man knoweth) is the sole judge of the said courte’: E. Hake, Epiekeia: a Dialogue on Equity in Three Parts, ed. by D. E. C. Yale, New Haven, 1953, p. 122. And, famously, John Selden’s view in the mid seventeenth century, that ‘Equity is according to the Conscience of him that is 187  Yale

100

N. G. Jones

But the trend was towards regularisation in Chancery, and Lord Ellesmere, who had read Doctor and Student, ‘volubly insisted that equity was an aspect of law rather than a product of discretion’.191 Lord Nottingham’s famous assertion in Coke v Fountaine (1676),192 that ‘[w]ith such a conscience which is only naturalis et interna this Court hath nothing to do; the conscience by which I am to proceed is merely civilis et politica, and tied to certain measures’, was not new in 1676.193 3. The court’s relationship to the Privy Council, Parliament, and other jurisdictions (a) Relationship with Parliament and the Privy Council A significant difficulty facing the Chancery in the first half of the seventeenth century was the absence of an effective means of reviewing its decrees.194 By the later 1670s an appellate jurisdiction from the Chancery was

Chancellor, and as that is larger or narrower, so is Equity. Tis all one as if they should make the Standard for the measure, we call [a Foot] a Chancellor’s Foot, what an uncertain Measure would this be?’: J. Selden, Table-Talk, London, 1847, p. 64. 191  Guy, St German on Chancery and Statute, p. 94. 192  D. E. C. Yale (ed.), Lord Nottingham’s Chancery Cases, vol. 1, p. 362; and 3 Swanst. 585. 193  See M. Macnair, Coke v Fountaine (1676), in: Mitchell/Mitchell (eds.), Landmark Cases in Equity, pp. 33–61 at 57–58. See also Klinck, Conscience, Equity and the Court of Chancery, pp. 225–261. The difficulty of a one-man court was referred to in 1695 by Sir Robert Atkyns CB: ‘The Judgment and Determination of Causes in Chancery, depend upon the sole Opinion and Conscience of one single Person, whose Power therein, (as some of our Books and Modern Authors presume to affirm) is Absolute and Arbitrary’, with the result that the chancellor’s judgment was not always guided by certain and known rules, making it difficult to assess in advance the likely outcome of litigation, Sir Robert Atkyns, An Enquiry into the Jurisdiction of the Chancery in Causes of Equity … Humbly Submitted to the Consideration of the House of Lords, to Whom it Belongeth to Keep the Inferiour Courts Within their Bounds, 1695, pp. 31–32. For discussion of Atkyns’s complaints about the Chancery (and about the appellate jurisdiction of the House of Lords), see the contribution of Prest to this volume, and Macnair, Common Law and Statutory Imitations of Equit­ able Relief, pp. 117–118. 194  J. S. Hart, The House of Lords and the Appellate Jurisdiction in Equity, 1640– 1643, Parliamentary History, 2, 1983, p. 49 at 59. Existing mechanisms were a rehearing before the chancellor or lord keeper who had issued the decree in question, before it was enrolled; cumbersome proceedings in Chancery upon a bill of review after enrolment; or (rarely) a petition to the king, or private act of Parliament. As Professor Prest observes in his contribution to this volume, the Chancery had no equivalent to the proceedings in error available in the central courts of common law.



The English Court of Chancery101

vested in the House of Lords.195 The jurisdiction had its roots in the 1620s,196 and the House of Lords had entertained numbers of appeals from Chancery in the early 1640s, largely on the ground of improper Chancery intervention in questions of title to real property.197 The Privy Council gained distinct existence in 1540, there being from that date a formal and functional distinction between the Privy Council and the court of Star Chamber. The Privy Council in this form was primarily an instrument of government rather than a court, whereas the Star Chamber functioned as a court, sitting only during the law terms and following a set procedure. But while primarily an instrument of government, the Privy Council retained a right to hear private suits (including disputes over property) and to punish lesser crimes.198 In the narrower period the Privy Council might call upon the Chancery’s forms of process, proceeding and enquiry. Upon Privy Council direction, for example, the chancellor might appoint commissioners to take evidence and to hear a matter which was pending before the Privy Council,199 or the Privy Council might refer matters directly to the Chancery, recognising that where resolution required examination of witnesses upon oath, or the taking of accounts, Chancery procedure was well-suited to the task,200 and that 195  Albeit controversy over the jurisdiction persisted for a time thereafter, see the contribution of Prest to this volume. 196  Hart, The House of Lords and the Appellate Jurisdiction in Equity, pp. 52–55. It had been suggested in the House of Commons in 1621 that erroneous decrees in Chancery might be addressed by a commission of review, the introduction of proceedings in error, or the establishment of a court of appeal, see the contribution of Prest to this volume. 197  Ibid. 61–64. See also Yale (ed.), Lord Nottingham’s Chancery Cases, vol. 1, pp. lxvi–lxxiii, and Holdsworth, History of English Law, vol. 1, pp. 373–375. Lord Nottingham was opposed to the development. 198  Baker, Oxford History of the Laws of England, pp. 200–203. 199  Jones, Elizabethan Court of Chancery, pp. 331–332, referring to Sentlowe v Sentlowe (1562) C 33/25 f. 163. See also, for example, the dispute between Sir John Savage and Thomas Taylor concerning certain land, in which the Privy Council in 1627 ordered Sir John to deliver up possession to Taylor, and to commence suit in Chancery against him, giving security to Taylor to satisfy him, as the Chancery should order, for all loss caused to him by Sir John, a commission to issue out of the Chancery to investigate the loss: J. V. Lyle (ed.), Acts of the Privy Council of England (hereafter APC). Vol. 42: 1627, London, 1938, p. 366: British History Online http:// www.british-history.ac.uk/acts-privy-council/vol42. 200  See, for example: dispute between Lady Lambert and Sir Raphe Sidley, 1620 (examination of witnesses on oath), J. V. Lyle (ed.), APC. Vol. 37: 1619–1621, London, 1930, p. 150: British History Online http://www.british-history.ac.uk/acts-privycouncil/vol37; petition of Edward Sherborne, 1624 (examination of witnesses upon oath): J. V. Lyle (ed.), APC. Vol. 39: 1623–1625, London, 1933, p. 445: British History Online http://www.british-history.ac.uk/acts-privy-council/vol39; petition of Aquila Weeks, 1630 (examination of witnesses on oath), R. F. Monger/P. A. Penfold

102

N. G. Jones

some matters of substance were appropriate for Chancery consideration.201 An order of the Privy Council might assist Chancery procedure,202 or in the enforcement of Chancery decrees,203 or might alter the Chancery’s approach to a suit.204 (eds.), APC. Vol. 45: 1629–1630, London, 1960, p. 241: British History Online http:// www.british-history.ac.uk/acts-privy-council/vol45; dispute between William Meysey and William Allen, 1623 (taking of accounts), J. V. Lyle (ed.), APC. Vol. 39: 1623– 1625, London, 1933, p. 78: British History Online http://www.british-history.ac.uk/ acts-privy-council/vol39. 201  See, for example, the matter concerning Henry Meautys and the repair of Bow Bridge, Essex, wherein the two chief justices and Dodderidge and Houghton JJ having given their opinion that the final determination of the right ‘wilbe best determined in the High Courte of Chancerie’, the matter was in 1623 directed into Chancery, with a request that the lord keeper ‘would have a particular eye upon the whole proceedinges of this cause’, J. V. Lyle (ed.), APC. Vol. 39: 1623–1625, London, 1933, pp. 52, 68: British History Online http://www.british-history.ac.uk/acts-privy-council/vol39. For an earlier example, see Chamberlen v Rookwood, C 33/74 f. 345v (1587) (matter concerning alleged misbehaviour by charity trustees of land ‘recommended’ by the Privy Council to the ‘hearing and order’ of the chancellor, it appearing to the Privy Council that the land in question was, by the defendant’s own agreement, to be reconveyed to the plaintiff). 202  See, for example, Parker v Cornewallys, in which the defendant in the Chancery suit had been incarcerated in the Tower, the Privy Council in 1614 ordering the lieutenant of the Tower to permit access by a master of Chancery to take his answer upon oath, E. G. Atkinson (ed.), APC. Vol. 33: 1613–1614, London, 1921, p. 579: British History Online http://www.british-history.ac.uk/acts-privy-council/vol33, and the case of William Bradshaw, released in 1622 from Privy Council custody in order to examine witnesses in a suit in Chancery, J. V. Lyle (ed.), APC. Vol. 38: 1621–1623, London, 1932, p. 347: British History Online http://www.british-history.ac.uk/actsprivy-council/vol38. 203  See, for example, the dispute between Sir Walter Ashton and Sir Richard Fleetwood, wherein the queen in 1626 wrote to Sir Richard requiring him to satisfy a Chancery decree in favour of Sir Walter before leaving for Spain, ‘forasmuch as Sir Walter Ashton is a gentleman well knowne to us and one that by his long and faithfull service to his Majestie and the State hath diserved verie well’, J. V. Lyle (ed.), APC. Vol. 41: 1626, London, 1938, p. 32: British History Online http://www.britishhistory.ac.uk/acts-privy-council/vol41. In contrast, in the matter between Sir Henry Billingsley and Edmund Matthews, Billingsley had obtained a decree in Chancery, but the Privy Council ‘being … favorably inclined for Mr. Mathewe’s releife, his wife and children, being a gent. of a good howse, and whose distressed estate doth move them to compassion’, sought in 1613 to achieve a compromise, upon the failure of which the matter was dismissed, and Billingsley left to his decree, E. G. Atkinson (ed.), APC. Vol. 33: 1613–1614, London, 1921, p. 87: British History Online http:// www.british-history.ac.uk/acts-privy-council/vol33. In contrast, in Povey v Pearte, C 33/83 f. 376 (1592), William Peart complained to the Privy Council that a suit in Chancery had been determined against him without opportunity for him to show cause to the contrary. This being so the Privy Council, thinking it ‘very reasonable that … Peart and his proofs should be heard’, ‘by their letters prayed and required’ the master of the rolls and the judges joined in commission with him to appoint a



The English Court of Chancery103

Privy councillors, acting as individuals, not infrequently intervened in Chancery process in the time of Elizabeth, most commonly with a view to speeding the progress of a suit.205 Intervention by the monarch was also possible. In the time of Elizabeth petitions for justice submitted directly to the monarch might be sent for determination in Chancery.206 The queen might order that a cause be heard and determined in the court,207 or order the reopening of a case which had been dismissed from Chancery,208 or the sending of a point of law from Chancery for determination by the common law judges.209 (b) Interactions between superior jurisdictions Precisely concurrent jurisdiction between the Chancery and the courts of common law was in one sense in principle impossible, in that Chancery was constrained by the statutes of due process to act only where the common law was deficient. It would seem that in practice Chancery did not always comnew day for hearing and to take such order ‘as shall be agreeable to equity and justice’. 204  See, for example, Billinge v Sharpe (1579), where the court, having enjoined the defendant not to proceed in the matter in the court of the relevant manor, ordered nevertheless that the cause ‘shall rest in the state that it now is’ until further consideration, the chancellor having remembered that some of the Privy Council had written to him to suffer the defendant to proceed in the manor court: C 33/57 f. 128, C 33/58 f. 202 (the latter printed in Monro, Acta Cancellariae, p. 469). 205  Jones, Elizabethan Court of Chancery, pp. 332–335. 206  For example, Bradley v Stapleton, C 33/39 f. 295 (1570) (printed in Monro, Acta Cancellariae, pp. 378–379). 207  See, for example, Smalewood v Bishop of Chester (1585) C 33/71 f. 92 (case previously refused by the Chancery because determinable in the county palatine of Chester, now accepted at the queen’s command); Welshe v Lygons (1589) C 33/77 f. 632v (‘the hearing of the matter in question’ committed by the queen to the lord chancellor); Wingfield v Harrington (1597) C 78/127/19 (hearing of argument by named persons as to why they should not join with the plaintiff in sale of certain land committed by the queen to the lord keeper and lord chamberlain). For a later example see Basset v Bassett, C 33/151 f. 65 (1626), where the suit came to be heard in Chancery ‘on a reference from the king’s majesty’. 208  See generally Jones, Elizabethan Court of Chancery, pp. 329–331, and references there. 209  For example, in Reade v Silles it was noted in 1588 that the lord chancellor ‘according to her majesty’s pleasure signified unto his lordship in that behalf’, had referred a will and a proviso contained in it to the two chief justices, to the end that ‘they might give their opinions of the same what the law is therein’, C 33/75 f. 500v. The will was that of Sir Richard Reade, lord chancellor of Ireland 1546–48: F. Elrington Ball, The Judges in Ireland, 1221–1921, vol. 1, London, 1926, pp. 155, 204.

104

N. G. Jones

ply with the statutory limits:210 it may well, for example, have come close to determining title to freehold land through suits ostensibly concerned with detention of title deeds, or through the quieting of possession. And in many instances jurisdiction overlapped, in that Chancery intervened in matters which were determinable at common law in the broad sense, but where particular limits of procedure or proof at common law would prevent full justice being done. The courts of King’s Bench and Common Pleas possessed the power to prohibit proceedings in other courts, on the ground that the matter in question should be tried at common law and not in the prohibited court; that no remedy should be provided in any court in a case of the type in question; that while the prohibited court properly had initial jurisdiction, some aspect of the matter should be tried at common law; or that the ruling of the prohibited court was contrary to common law.211 Prohibitions were issued in some numbers against the ecclesiastical courts and against the court of Admiralty. They were also issued against the provincial councils, but in practice never against the Chancery.212 Some limited interference in Chancery by the courts of common law occurred through the use of writs of habeas corpus213 to review the lawfulness of committal by the chancellor for contempt. In Russell’s Case (1482) Huse CJKB reassured the plaintiff that if he asked for judgment at common law against a Chancery injunction and was imprisoned for contempt, ‘we shall issue a Habeas Corpus returnable before us, and … we shall discharge you’.214 Habeas corpus was used in Elizabeth’s time to review Chancery committals. In More v Taylor (1587), for example, Taylor, the defendant in Chancery, having been committed to the Fleet for disobedience to a common injunction, was released by the court of Queen’s Bench upon habeas corpus, and then re-arrested by the Chancery. The dispute was resolved by the queen’s intervention and Taylor’s submission to the Chancery.215 As 210  This was a matter of complaint in Parliament as early as 1389, see Tucker, Early History of the Court of Chancery, p. 797. 211  C. M. Gray, The Boundaries of the Equitable Function, in: American Journal of Legal History, 20, 1976, p. 192 at 197–198. Prohibitions took the procedural form of the issue of a judicial writ of prohibition. 212  Gray, Boundaries of the Equitable Function, 196–197. 213  That is, habeas corpus ad subjiciendum, issued principally by the court of King’s Bench. For the earlier history see Baker, Oxford History of the Laws of England, pp. 91–94. 214  YB Mich. 22 Edw. IV, f. 37, pl. 2, translated in A. K. R. Kiralfy, A Source Book of English Law, London, 1957, p. 262. 215  J. P. Dawson, Coke and Ellesmere Disinterred: the Attack on the Chancery in 1616, in: Illinois Law Review of Northwestern University, 36, 1941–42, p. 127 at 134; Jones, Elizabethan Court of Chancery, p. 469; Monro, Acta Cancellariae, pp. 5–9. For other Elizabethan instances see Baker, The Common Lawyers and the



The English Court of Chancery105

has been seen, habeas corpus was used again in the dispute between Coke and Ellesmere over common injunctions.216 Relations between Chancery and the court of Star Chamber appear, at least in Elizabeth’s time, to have been ‘relatively placid’, in part because of the chancellor’s role as ‘de facto president of the court of Star Chamber’.217 It was not uncommon for parties in the same matter to proceed in both Chancery and Star Chamber, the relationship between the suits requiring to be managed. Thus in Fysher v Knight it was found in 1598 that ‘cross suits’ had been depending in both courts on the question of whether conveyances of land in question had been made ‘upon trust or fraud or not’. Chancery had ordered ‘speedy hearing’ of the Star Chamber suit, Chancery proceedings to continue once it had become clear from that suit whether the plaintiff ‘had a good and lawful purchase of the premises made bona fide or not’.218 In Grover v Joyner the plaintiff had sued the defendant in Star Chamber, which suit had been dismissed. The plaintiff’s subsequent Chancery suit for the same matter was retained, it being ordered ‘not to examine any of those witnesses formerly examined nor any other witnesses but only [upon] the same interrogatories which were formerly exhibited’, that is, in the Star Chamber suit.219 In contrast, in Ford v Pomery, the chancellor having heard the matter Chancery, p. 211, fn. 44 (Collected Papers, vol. 1, p. 490, fn. 44), and Moo. K. B. 839, pl. 1132. 216  Baker, The Common Lawyers and the Chancery, pp. 211–215. Baker observes that ‘The impression given by the reports is that Coke was unwilling to take a stand against Ellesmere on habeas corpus’, ibid., p. 215. In similar vein, Halliday suggests from Coke’s practice in habeas corpus cases during his term as chief justice of the King’s Bench, that it is ‘hard to see … a general attack on the chancellor’s imprisonment powers’: P. D. Halliday, Habeas Corpus: From England to Empire, Cambridge MA, 2010, p. 91. 217  Jones, Elizabethan Court of Chancery, pp. 451–452. Egerton LK referred in Chancery suits to practice in Star Chamber, saying, for example that it was the ‘course in the Star Chamber’, where costs were awarded against several parties, to allow enforcement against one, leaving him to seek contribution from the others: Bryson (ed.), Cases Concerning Equity and the Courts of Equity, vol. 1, p. 307, no. 119–219. See also, ibid., p. 147, no. 79, and p. 288, no. 119–109. 218  C 33/96 f. 373v. For other similar examples, see Uvedall v Fuller, C 33/51 f. 257v (1576) (payment of a sum of money by the Chancery plaintiff to the defendant stayed, pending the outcome of a forgery suit by the Chancery defendant in Star Chamber, because payment ‘might be very prejudicial to the … plaintiff in the … suit in Star Chamber by forejudging the validity or truth of the … obligation’); Sherrington v Wood, C 33/71 f. 34v (it being found that the Chancery suit ‘depends upon’ the suit in Star Chamber, the Chancery suit to remain as it was until the suit in Star Chamber had been heard). 219  Bryson (ed.), Cases Concerning Equity and the Courts of Equity, vol. 1, p. 319, no. 120–[6] (c. 1599–1604). See also Cowper v Fermor (1600) (examination in Star Chamber read in Chancery), ibid., p. 274, no. 118–[335], but compare Tenants of

106

N. G. Jones

at his house, it was ordered in 1585 that it be reheard in Chancery, and that in the meantime all other suits elsewhere, including that which the plaintiff had brought against the defendant in the Star Chamber, be no further prosecuted.220 Matters might also be dismissed from Chancery into Star Chamber, as in Ashefielde v Martyn (1575), where it was found that the suit concerned alleged perjury in a ‘base court’, ‘which this court thinks meet rather to be tried in the court of Star Chamber’, and the plaintiff was dismissed to take his remedy in ‘such court or courts where the like matters are determinable’.221 The possibility of perjury was handled in another fashion in Ringwood v Bulkley (1592), where, no trust being found, possession of the land in question had been decreed for the defendant. The plaintiff thereupon alleging that ‘the witnesses upon whose testimony the … decree passed are in question and like to be detected for perjury in the Star Chamber’, the defendant was ordered to provide surety that he would restore possession and the profits taken from the land, should perjury be found.222 Two further conciliar jurisdictions with which the court of Chancery interacted were the Council in the Marches of Wales (sitting at Ludlow, Shropshire), and the Council in the North (sitting at York). The Council in the Marches, first founded in 1473 as the prince of Wales’s council, and concerned primarily with public order, was revived in 1518 and given increased authority in 1525. When the Welsh judicature was reorganised in 1543 it was placed on a statutory footing as the Council in the Principality of Wales and the Marches.223 A memorandum, seemingly of 1588, probably drawn up by Petworth v Earl of Northumberland where depositions taken in Star Chamber were ‘not thought meet to be read’ in Chancery, ibid., p. 254, no. 118–[168], and Molineux v Urricke (1624), C 33/147 f. 161v, Monro, Acta Cancellariae, p. 316, where Sir Eubulus Thelwall, master of Chancery, after considering precedents, reported his view that answers taken in Star Chamber should not be read in Chancery, because they were answers alone, made to the best advantage of the parties, and not accompanied by examination of the defendants or of witnesses, either to confirm or oppose the answers. 220  C 33/69 f. 557v. 221  C 33/51 f. 31v. The ‘base court’ was at Bliston (Blisland), Cornwall. 222  C 33/85 f. 46 (recte 45). The Chancery did not regard itself as incapable of dealing with perjury where appropriate: Jones, Elizabethan Chancery, p. 452. See also Egerton LK’s view in Adams v Bridges, that ‘though he doubted not but perjury might be examined here [in Chancery], yet the … Star Chamber was the fitter place’, Bryson (ed.), Cases Concerning Equity and the Courts of Equity, vol. 1, p. 268, no. 118–[289]. 223  Baker, Oxford History of the Laws of England, pp. 103–104, and pp. 206–207. See more generally P. Williams, The Council in the Marches of Wales under Elizabeth I, Cardiff, 1958.



The English Court of Chancery107

Henry Herbert, second earl of Pembroke, suggested that ‘what suits so ever be determinable in the Chancery, Star Chamber, or Court of Requests, the same suits are ordinarily heard in the Court of the Council in the Mar­ches’.224 In the time of Elizabeth, Chancery not infrequently dismissed suits to determination in the Marches on the ground of the parties’ residence within the Council’s jurisdiction, usually combined with some other ground, such as the smallness of the claim.225 There was a growing sense that matters concerning title to freehold land should not be dismissed to the Council – albeit ‘Chancery’s right to declare on title of lands of freehold was equally dubious’226 – upon which view was based Chancery’s Elizabethan practice of not dismissing cases to the Council upon grounds of residency where title to land was involved.227 As in the case of the Star Chamber, Chancery might be prepared to accept depositions taken in the Marches,228 and might act to support the Council’s process. Thus in Morgan v Lloid (1585), the plaintiff, having obtained a decree in the Marches, had proved unable to enforce it. The plaintiff thereupon having commenced suit in Chancery, it was ordered that the sureties for the defendant’s appearance upon a commission of rebellion bring him in, upon pain of estreat of their bonds.229 In the 1560s Chancery was prepared to support an order in the Marches that proceedings not be undertaken in Chan224  ‘The Present State of the Court of the Queen’s Majesty’s Council in the Principality and Marches of Wales; being a report on the nature and constitution of all the law offices in the Principality of Wales and the duties of the respective offices’, SP 12/219 f. 200 at 212v. Henry Herbert had been appointed lord president of the Council in Wales in 1586. See Williams, The Council in the Marches of Wales, p. 48, and Chap. 13. 225  For example, Morgan v ap John (1566) C 33/33 f. 11 (both parties were inhabitant in the jurisdiction of the Council, and the matter was for 16s. 8d. a year, ‘which this court thinks not meet to hold plea of being a matter of very small weight and importance’); Griffin v Thomas (1566) C 33/33 f. 84 (both parties were inhabitant in the jurisdiction of the Council, and the matter had already been ordered by the Council); Lloyd v Wynne (1566) C 33/33 f. 72v (both parties were inhabitant in the jurisdiction of the Council, and the suit appeared to ‘proceed for vexation’). 226  Jones, Elizabethan Court of Chancery, p. 353. Instructions of 1576 and 1586 had sought to limit the Council’s jurisdiction in cases of freehold land to the establishment of possession, title to be tried at common law: Williams, The Council in the Marches, pp. 55–56. 227  For example, Clare v Sebright (1566) C 33/33 f. 64 (‘the matter contained in the … bill is for no title of land’), Morgan v Bithell (1579) Cary 84, Choyce Cases 136 (‘the matter contained in the bill … is for no title of land’), and a number of cases in which it was noted that the bill concerned leasehold land, but not freehold, for example, Lawrens v Payne (1575) C 33/51 f. 78v; Arden v Vale (1578–79) Cary 102; Moore v Marshall (1579–80) Cary 92; Payne v Mercer (1596) C 33/89 f. 48v. 228  French v Foulke (1605) C 33/109 f. 78v. 229  C 33/71 f. 6.

108

N. G. Jones

cery: in ap Owen v Powell (1566), the plaintiff having been ordered by the Council ‘to stay and no further proceed in the said suit in this court of Chancery’, the matter was dismissed ‘to the order and determination’ of the Council.230 The Chancery’s approach in this regard stiffened as Elizabeth’s reign progressed. In Brown v Benion (1578–79) the plaintiff in Chancery was discharged of costs imposed for non-exhibition of a bill on the ground that he had been ordered by the Council in the Marches to show cause why he should not stay his proceeding in Chancery.231 In Croft v Acton (1583–84), in contrast, Chancery proceeded with a suit which had been enjoined by the Council, ordering an attachment against the defendant should the plaintiff be molested for suing in Chancery.232 A crisis was reached in 1595 in Charleton v Bridgman, in which, following an attempt by the Council directly to enjoin the plaintiff’s attorneys not to proceed in his suit in Chancery, the defendant was committed to the Fleet for his contempt, ‘[f]or that no other court within this realm has authority to stay the proceedings for matters of equity in this court, and because the aforesaid order and commandment … tend to the derogation of the authority of this court’.233 This was not the end of the particular litigation, but Chancery ‘had got its way’.234 The Council in the North had its origins in the time of Edward IV, and was revived in 1525 as the duke of Richmond’s council.235 It appears rather less frequently in the sample from the entry books than does the Council in the Marches. For much of Elizabeth’s reign there seems to have been ‘no abnormal strain’ between Chancery and the Council in the North.236 As in the case of the Council in the Marches, Chancery was prepared to dismiss matters to the Council in the North where the parties lived within its jurisdiction,237 or 33/33 f. 23v. Cases 131. 232  Choyce Cases 176–77. 233  C 33/89 f. 126. See generally Williams, The Council in the Marches, pp. 223– 224, and Jones, Elizabethan Court of Chancery, pp. 354–355, and references there. 234  Jones, Elizabethan Court of Chancery, p.  355. In Stich v Cooke (1626) C 33/151 f. 20, Chancery found it necessary to take steps against proceedings in the Marches. The defendant, having confessed the plaintiff’s bill in Chancery, then obtained an injunction for possession in the Marches, which he had begun to put into execution. The defendant was ordered in Chancery to show cause why he should not give security for the corn taken, with provision that if he failed to do so the corn remaining unthreshed should be sequestered. 235  Baker, Oxford History of the Laws of England, p. 206. See generally, R. R. Reid, The King’s Council in the North, London, 1921. 236  Jones, Elizabethan Court of Chancery, p. 356. 237  For example, Lamberte v Lamberte (1571) C 33/41 f. 230v, and Harrison v Harrison (1579–80) Cary 95–96, though a demurrer based upon the jurisdiction of 230  C

231  Choyce



The English Court of Chancery109

where suit had already been commenced in the Council.238 As in the case of the Council in the Marches, matters concerning a lease would be dismissed to the Council, but not those concerning title to freehold.239 And as in the case of the Council in the Marches, difficulties arose in the 1590s over the Council’s jurisdiction to stay suits in Chancery. Matters came to a head in the test case of Wastlyn v Welbery (1598), in which the two common law chief justices and Beaumont JCP sat in Chancery, concluding that ‘the … Council in the North parts their commission and instructions being looked into have not any warrant to enjoin or stay the proceedings in any of her majesty’s Superior Courts at Westminster’.240 (c) Procedures facilitating the transfer of cases between jurisdictions As indicated above, the common law courts did not in practice prohibit the Chancery.241 They were capable through habeas corpus of reviewing the lawfulness of commital for contempt by the chancellor, but this did not have the effect of removing a suit from Chancery to common law.242 As also indicated above, Chancery had the capacity to enjoin parties from proceeding in other courts, including the central courts of common law. In practice this might mean that the parties were compelled to proceed in Chancery, though again it was not a mechanism for direct removal of cases into the Chancery.243 Removal of cases into Chancery was possible from local jurisdictions, by means of writs of certiorari or habeas corpus cum causa.244 In the case of general, or common, certiorari this might happen without any bill being exhibited in Chancery, the action lying to call into Chancery (or into the King’s Bench) records or proceedings from inferior courts of record, though it is not clear how frequently it was used.245 Special certiorari was usually issued following the exhibition of a bill in Chancery, and related dithe Council might fail where relevant witnesses lived in or near London: Ponder v Atkynson (1580) C 33/61 f. 92 (concerning a lease by parol). 238  Hutton v Lowther (1580) C 33/61 f. 30v. But compare Frodingham v Cholmeley (1559) C 33/19 f. 186v, where upon petition to the queen by the plaintiff, a suit was removed by certiorari from the Council in the North to be heard in Chancery. 239  Mawe v Atterdon (1564) C 33/31 f. 54 (‘for that the bill … contains not any matter for title of land but only of a lease for term of years’). 240  C 33/93  f. 632v. See Reid, The King’s Council in the North, pp. 346–350; Jones, Elizabethan Court of Chancery, pp. 359–361. 241  Gray, Boundaries of the Equitable Function, pp. 196–197. 242  See above, pp. 104–105. 243  See above, pp. 95 ff. 244  Baker, Oxford History of the Laws of England, p. 189. 245  Jones, Elizabethan Court of Chancery, p. 187.

110

N. G. Jones

rectly to proceedings in Chancery. It appears to have been issued to inferior courts both of record and not of record.246 Conclusions (a) Assertion of jurisdiction? In its origins the English-side jurisdiction of the Chancery appears to have developed not in consequence of a conscious step to exercise authority, but in response to the needs of litigants, through delegation by the king and council of the handling of petitions for justice outside the normal common law system, albeit not as a means whereby the law might be overridden: ‘[t]he petitioner believed that his case was beyond the ordinary mechanism, and he sought another way. But he did not see himself as applying to a different system of rules, or even as applying outside an established set of rules to some superior having absolute authority at will. He wanted only the common justice’.247 Any assertion of jurisdiction by the Chancery was in principle constrained by the statutes of due process, the boundaries of which were tested where the Chancery approached the adjudication of title to freehold land and related points, though as their jurisdiction shifted away from contractual matters towards matters of property, early modern chancellors were not unaware of the difficulties raised by involvement of their court in matters of freehold title, and were willing to dismiss such cases to determination at common law. Assertion of jurisdiction by the Chancery was perhaps most apparent in the issuing of common injunctions after judgment at law, which caused contention, to varying degrees of intensity, for much of the early modern period. One aspect of the dispute as it came to a head in the 1610s – by which time the volume of litigation in Chancery had probably doubled since the 1550s248 – was the question of ‘the inviolability of Common-Law property rights’, and the argument that ‘the determination of property rights was a matter purely for the Common Law and not for the emergent equity of the Court of Chancery’.249 Consequent upon this was the important question of 246  For example, Jeffrey v Tyrrell (1561) C 78/18/36 (to Queen Mary’s commissioners for heresy); Brymston v Clerke (1568) C 33/37 f. 160 (to the manor court of Spalding, Lincolnshire); Audreye v Brigham (1575) C 33/51 f. 11v (to the London Sheriffs’ Court); Childe v Peers (1585) C 33/71 f. 33v (to the London Sheriffs’ Court). Other examples are given in Jones, Elizabethan Court of Chancery, pp. 187–188. 247  Milsom, Historical Foundations, pp. 83–84. 248  Brooks, Law, Politics and Society, p. 146. 249  Ibbetson, The Earl of Oxford’s Case, p. 24.



The English Court of Chancery111

Chancery’s capacity to establish equitable proprietary rights.250 These were legal questions, but enmeshed in a broader political context. One aspect of this was that the ‘whole issue of the inviolability of property rights was a dominant theme in the political discourse of the reign of James I, intimately connected with arguments about the protection of individual liberty’.251 Another aspect were the links, clearly being made by the early seventeenth century, between the Chancery, equity and the royal prerogative.252 In intervening in support of the Chancery in 1616, James I seems to have ‘agreed with the arguments advanced that limiting the Chancery’s jurisdiction was an attack on his own prerogative’.253 These matters extended beyond the Chancery’s own practice, co-opting the court and its jurisdiction into wider controversies.254 Chancery interacted not only with other courts in Westminster, but with local and regional jurisdictions. In the narrower period it was content, where appropriate, to dismiss matters to determination elsewhere, to manor courts, to the courts of palatinate jurisdictions,255 to ecclesiastical courts, or to the councils in the North and the Marches of Wales. In the 1590s, at which time the Chancery had begun ‘openly to resent and oppose competition in the realm of equity’,256 controversy arose as to the claims of the regional councils to enjoin suits in Chancery. Here, in contrast to the dispute over common injunctions, Chancery’s superiority was readily established. (b) Promotion of civil justice The emergence of the central courts of common law in the later twelfth and earlier thirteenth centuries began a process whereby civil litigation at common law in England became centralised. Business in the court of Common Pleas ‘may have grown by a factor of as much as thirty between 1200 and 1306’, with levels of litigation remaining quite high until the advent of 250  Ibid.,

26. p. 24. 252  Williams, Prerogative and the Authority of Chancery, p. 40. 253  Ibid., p. 41. 254  Personality also had a role to play: ‘As Ellesmere grew older he became more obstinate and difficult and opposed to the common law’: Baker, The Common Lawyers and the Chancery, p. 210 (Collected Papers reprint, vol. 1, p. 487). 255  E. g. Hearle v Carter (1575) C 33/51 f. 41v (dismission to the county palatine of Lancaster). For relations between the Chancery and the palatinate jurisdictions in Chester and Lancaster in the Elizabethan period see Jones, Elizabethan Court of Chancery, pp. 370–372. 256  Jones, Elizabethan Court of Chancery, p. 361. 251  Ibid.,

112

N. G. Jones

the Black Death in 1348,257 an increase which is best seen as stemming ‘not directly from royal policy but from consumer demand. It must always be remembered that actions only began when plaintiffs chose to bring them’.258 Recovery was rapid in the later fourteenth century, until a second long, but not deep, decline in common law business began in the later 1440s,259 reaching an historic low in the 1520s. There was then ‘a massive increase in central court litigation which dated from just before the accession of Elizabeth in 15[5]8, reaching a peak in the years around 1600’, central court litigation remaining at high levels until the early eighteenth century.260 As at common law, suits began in Chancery when litigants chose to bring them. Litigation in Chancery appears to have increased five-fold between the 1430s and the 1480s,261 a period during which business at common law was in decline, though the volume of business in Chancery was much smaller than at common law: the increase in business in Chancery in this period cannot explain the decrease at common law, which seems more likely to have been caused by economic and demographic factors.262 When increases in business occurred in the central courts, these do not appear to have been ­accompanied by commensurate decreases in business in local jurisdictions. ‘[F]luctuations in local court business have … frequently followed similar patterns to those in the central courts’,263 and local courts sustained vitality well into the eighteenth century, especially, though not exclusively, in unincorporated towns which were governed through manorial institutions.264 Outside the unincorporated towns, manorial jurisdictions, in the private hands of lords of the manor, played an important role in the fifteenth century, but went rapidly into decline after 1600, one aspect of this being ‘a quite distinct legal imperialism from Westminster which subjected the powers of customary courts to close scrutiny and limitation’.265 It has been suggested that in the fifteenth century ‘[p]rivate disputes were settled either by the resort to violence or by informal arbitration’, whereas after the mid-sixteenth century litigation was flooding into the central courts

257  Brooks,

Lawyers, Litigation and English Society, p. 66. Oxford History of the Laws of England, p. 550. 259  Brooks, Lawyers, Litigation and English Society, p. 66. 260  Ibid., pp. 66–68. 261  Brooks, Pettyfoggers and Vipers of the Commonwealth: the ‘Lower’ Branch of the Legal Profession in Early Modern England, Cambridge, 1986, p. 85. 262  Brooks, Lawyers, Litigation and English Society, p. 82. 263  Ibid., p. 69. 264  Brooks, Law, Politics and Society in Early Modern England, pp. 261, 244. 265  Brooks, Lawyers, Litigation and English Society, pp. 89–90. 258  Hudson,



The English Court of Chancery113

at Westminster.266 Arbitration was an important factor in fifteenth-century dispute resolution, though it continued to be used thereafter, and is ‘a significant factor in all studies of dispute processing, including those for the twentieth century’.267 Arbitration, moreover, might be connected with litigation, rather than being a simple alternative to it: arbitration was much used, for example, by the Elizabethan Chancery,268 which ‘made no secret of its conviction that litigation could often be ended if the parties were brought together’.269 Given ‘consumer demand’ for royal justice, the existence of multiple central courts inevitably led to uncertainties and frictions at jurisdictional boundaries. These are apparent in relation to the Chancery and the courts of common law at least from the time of Wolsey, and the jurisdictional boundaries remained to some extent malleable at least into the earlier eighteenth century.270 But the court of Chancery arose alongside the pre-existent courts of common law, and the familiar dichotomy of law and equity should not be allowed to mislead. Sitting during term in the same room as the central courts of common law, the Chancery developed as an integral part of the central machinery of justice. The common law judges were no strangers there, nor were common law practitioners. ‘Once the rival courts of equity began to weaken or were challenged, it followed that Chancery’s position would become even stronger … As the only serious court of equity, it had to 266  Brooks, Law, Politics and Society in Early Modern England, pp. 8–9, commenting on the work of others. 267  Brooks, Lawyers, Litigation and English Society, p. 81. 268  Jones, Elizabethan Court of Chancery, pp. 266–280. Matthew Stevens has observed, on the basis of a study of fifteenth-century London Common Pleas cases citing failed arbitrations, that ‘it is probable that arbitration was not seen as a universal alternative to litigation, but as a useful means of resolving certain types of multifaceted or exceptional disputes not well suited to the narrow determinative powers of the common law courts’: M. Stevens, Failed Arbitrations before the Court of Common Pleas: Cases Relating to London and Londoners, 1400–1468, in: Journal of Legal History, 31, 2010, p. 21 at 42. 269  Jones, Elizabethan Court of Chancery, p. 272. Not in all cases was this successful, see, for example, the report of the master of Chancery Sir John Tyndal in Rumney v Rumney (1610), that the parties ‘be both so bent upon extremities, and their reckonings so intricate, that I find no way to reduce them to any peace’: Monro, Acta Cancellariae, pp. 129–130. Reference to arbitration also assisted the court in getting through the business before it, which, under Elizabethan conditions, was ‘too great for the Lord Chancellor and the Master of the Rolls to handle, even when assistance could be obtained from judges sitting on the Chancery bench and from the Masters’: Jones, Elizabethan Court of Chancery, p. 269. Problems with workload long continued to haunt the Chancery, culminating in crisis in the early nineteenth century: Baker, Introduction to English Legal History, pp. 120–122. 270  Macnair, Common Law and Statutory Imitations of Equitable Relief, pp. 115 ff.

114

N. G. Jones

work in close alignment with the system from which it had sprung’:271 ‘the central institutions of the law represented an entity’.272 (c) Contribution to the development of state institutions The contribution of the development of the common law, including the rise of the central common law courts, to the development of structures of central governance in England was significant. Building upon developments in the time of Henry II, by the later thirteenth century ‘a law state had emerged as well as a tax state. Just as far more people than ever before paid taxes on a regular basis, so more than ever before they were involved in litigation through royal courts … an increase which can only be explained by people positively wanting the kind of justice the king provided’.273 Likewise, in the early modern period, ‘law and government were intimately related’,274 and ‘one of the principal means by which political power was legitimated was by reference to law’.275 A newly-developed association with the royal prerogative supported the Chancery in the 1610s at a point of friction with the courts of common law, and in turn, in the 1650s, imperilled it,276 but while ‘[j]ustice legitimated political power at an overrarching level and it was the duty of the monarch to foster both, … it legitimated, rather than served, the state’.277 Judges and court clerks had a natural interest in the fortunes of their courts,278 but in Chancery, as at common law, ‘[l]awyers were not agents of the state’.279 They were, rather, the agents of their clients, whose causes were central to the rise of the common law, and of the court of Chancery itself.

271  Jones,

Elizabethan Court of Chancery, p. 497. p. 494. See also, in the same vein, Smith, Sir Edward Coke and the Reformation of the Law, pp. 221–222: ‘The participation of so many common lawyers in the work of the Chancery … undermines claims about a fundamental division between the Chancery and the “common lawyers”’. 273  D. Carpenter, The Struggle for Mastery: Britain 1066–1284, London, 2003, p. 482. 274  M. J. Braddick, State Formation in Early Modern England, c. 1550–1700, Cambridge, 2000, p. 25. 275  Ibid., p. 38. 276  Williams, Prerogative and the Authority of Chancery, p. 59. 277  Braddick, State Formation in Early Modern England, p. 39. 278  It has been observed, for example, that in the decades after 1495 when John Fyneux became chief justice, the court of King’s Bench was ‘virtually a family business’, which ‘supervised and encouraged’ the reformation of the common law: Baker, The Reports of Sir John Spelman, vol. 2, p. 56. 279  Braddick, State Formation in Early Modern England, p. 38. 272  Ibid.,



The English Court of Chancery115

Bibliography Atkinson, E. G. (ed.), Acts of the Privy Council of England. Vol. 33: 1613–1614, London, 1921, available at http://www.british-history.ac.uk/acts-privy-council/ vol33. Atkyns, R., An Enquiry into the Jurisdiction of the Chancery in Causes of Equity … Humbly Submitted to the Consideration of the House of Lords, to Whom it Belongeth to Keep the Inferiour Courts Within their Bounds, London, 1695. Baker, J., ‘The Common Lawyers and the Chancery: 1616’, Irish Jurist, Vol. 4, 368– 392, 1969; reprinted in: Baker, J., Collected Papers on English Legal History, Vol. I, Cambridge, 2013, 481–512. Baker, J. H., The Reports of Sir John Spelman, Vol. II, Selden Society, 94, London, 1978. Baker, J. H. (ed.), The Notebook of Sir John Port, Selden Society, 102, London, 1986. Baker, J. H., ‘The Use of Assumpsit for Restitutionary Money Claims’, in: Schrage, E. J. H. (ed.), Unjust Enrichment: the Comparative Legal History of the Law of Restitution, Berlin, 1995, 31–57. Baker, J. H. (ed.), Reports of Cases by John Caryll, Part II: 1501–1522, Selden Society, 116, London, 2000. Baker, J. H., An Introduction to English Legal History, 5th ed., Oxford, 2019. Baker, J., Oxford History of the Laws of England. Vol. VI: 1483–1558, Oxford, 2003. Baker, J., ‘Human Rights and the Rule of Law in Renaissance England’, Northwestern University Journal of International Human Rights, Vol. 2(1), 2004, 24–40, available at http://scholarlycommons.-law.northwestern.edu/njihr/vol2/iss1/3. Baker, J., Baker and Milsom, Sources of English Legal History: Private Law to 1750, 2nd ed., Oxford, 2010. Baker, J., Collected Papers on English Legal History, Vol. II, Cambridge, 2013. Baker, J., ‘Personal Liberty under the Common Law 1200–1600’, in: Baker, J., Collected Papers on English Legal History, Cambridge, 2014, 881–910. Baldwin, J. F., The King’s Council in England during the Middle Ages, Oxford, 1913. Bentley, G. E., ‘The Troubles of a Caroline Acting Troupe: Prince Charles’s Com­ pany’, Huntington Library Quarterly, Vol. 41, 1978, 217–249. Braddick, M. J., State Formation in Early Modern England, c. 1550–1700, Cambridge, 2000. Brand, P., ‘Edward I and the Transformation of the English Judiciary’, in: Brand, P., The Making of the Common Law, London, 1992, 135–168. Brooks, C. W., Pettyfoggers and Vipers of the Commonwealth: the ‘Lower’ Branch of the Legal Profession in Early Modern England, Cambridge, 1986. Brooks, C. W., Lawyers, Litigation and English Society since 1450, London, 1998.

116

N. G. Jones

Brooks, C. W., Law, Politics and Society in Early Modern England, Cambridge, 2008. Bryson, W. H. (ed.), Cases Concerning Equity and the Courts of Equity, 2 vols, Selden Society, 117/118, London, 2001. Burt, C., ‘The Demise of the General Eyre in the Reign of Edward I’, English Historical Review, Vol. 120(485), 2005, 1–14. Carpenter, D., The Struggle for Mastery: Britain 1066–1284, London, 2003. Coke, E., The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of Courts, London, 1644. Cornish, W. R. et al., Oxford History of the Laws of England. Vol. XI: 1820–1914, Oxford, 2010. Dawson, J. P., ‘Coke and Ellesmere Disinterred: the Attack on the Chancery in 1616’, Illinois Law Review of Northwestern University, Vol. 36, 1941–42, 127–152. Elrington Ball, F., The Judges in Ireland: 1221–1921, Vol. I, London, 1926. Fonblanque, J., A Treatise of Equity. With the Addition of Marginal References and Notes, Vol. 1, Dublin, 1793. Gray, C. M., ‘The Boundaries of the Equitable Function’, American Journal of Legal History, Vol. 20(3), 1976, 192–226. Guy, J. A., The Public Career of Sir Thomas More, New Haven, 1980. Hake, E., Epiekeia: a Dialogue on Equity in Three Parts, New Haven, 1953. Halliday, P. D., Habeas Corpus: From England to Empire, Cambridge MA, 2010. Hargrave, F. (ed.), A Collection of Tracts Relative to the Law of England, London, 1787. Hart, J. S., ‘The House of Lords and the Appellate Jurisdiction in Equity, 1640–1643’, Parliamentary History, Vol. 2(1), 1983, 49–70. Hart, J. S., Justice upon Petition: the House of Lords and the Reformation of Justice, 1621–1675, London, 1991. Hegarty, A., A Biographical Register of St John’s College, Oxford, 1555–1660, Woodbridge, 2011. Hemmant, M. (ed.), Select Cases in the Exchequer Chamber, Vol. I, Selden Society, 51, London, 1933. Henderson, E. G., ‘Legal Rights to Land in the Early Chancery’, American Journal of Legal History, Vol. 26(2), 1982, 97–122. Holdsworth, W. S., A History of English Law, Vol. I, 3rd ed., London, 1922. Hudson, J., Oxford History of the Laws of England. Vol. II: 871–1216, Oxford, 2012. Ibbetson, D. J., A Historical Introduction to the Law of Obligations, Oxford, 1999. Ibbetson, D., ‘The Earl of Oxford’s Case (1615)’, in: Mitchell, C./Mitchell, P. (eds.), Landmark Cases in Equity, Oxford, 2012, 1–32.



The English Court of Chancery117

Ibbetson, D., ‘A House Built on Sand: Equity in Early Modern English Law’, in: Koops, E./Zwalve, W. J. (eds.), Law & Equity: Approaches in Roman Law and Common Law, Leiden, 2014, 55–77. Jones, N. G., ‘Uses, Trusts and a Path to Privity’, Cambridge Law Journal, Vol. 56(1), 1997, 175–200. Jones, N. G., ‘The Influence of Revenue Considerations upon the Remedial Practice of Chancery in Trust Cases, 1536–1660’, in: Brooks, C. W./Lobban, M. (eds.), Communities and Courts in Britain, 1150–1900, London, 1997, 99–113. Jones, N., ‘Trusts in England after the Statute of Uses: A View from the Sixteenth Century’, in: Helmholz, R./Zimmermann, R. (eds.), Itinera Fiduciae: Trust and Treuhand in Historical Perspective, Berlin, 1998, p. 173–205. Jones, N. G., ‘The Bill of Middlesex and the Chancery, 1556–1608’, Journal of Legal History, Vol. 22(3), 2001, 1–20. Jones, N. G., ‘Estate Planning in Early Modern England: “Having” in the Statute of Wills 1540’, in: Tiley, J. (ed.), Studies in the History of Tax Law, Vol. 1, Oxford, 2004, 227–241. Jones, N. G., ‘Norbury, George (fl. c. 1586–1634)’, Oxford Dictionary of National Biography, 2004, online ed., January 2008, at https://doi.org/10.1093/ref:odnb/ 70485. Jones, N., ‘Trusts Litigation in Chancery after the Statute of Uses: The First Fifty Years’, in: Dyson, M./Ibbetson, D. (eds.), Law and Legal Process: Substantive Law and Procedure in English Legal History, Cambridge, 2013, p. 103–125. Jones, N. G., ‘The Authority of Parliament and the Scope of the Statute of Uses 1536’, in: Godfrey, M. (ed.), Law and Authority in British Legal History, 1200– 1900, Cambridge, 2016, 13–32. Jones, W. J., The Elizabethan Court of Chancery, Oxford, 1967. Kiralfy, A. K. R., A Source Book of English Law, London, 1957. Klinck, D. R., Conscience, Equity and the Court of Chancery in Early Modern England, Aldershot, 2010. Lambarde, W., Archeion or, A discourse vpon the high courts of iustice in England, London, 1635. Langdell, C. C., ‘A Brief Survey of Equity Jurisdiction’, Harvard Law Review, Vol. 1(2), 1887, 55–72. Lemmings, D., ‘The Independence of the Judiciary in Eighteenth-Century England’, in: Birks, P. (ed.), The Life of the Law: Proceedings of the Tenth British Legal History Conference, London, 1994, 125–149. Lyle, J. V. (ed.), Acts of the Privy Council of England. Vol. 37: 1619–1621, London, 1930, available at http://www.british-history.ac.uk/acts-privy-council/vol37. Lyle, J. V. (ed.), Acts of the Privy Council of England. Vol. 38: 1621–1623, London, 1932, available at http://www.british-history.ac.uk/acts-privy-council/vol38.

118

N. G. Jones

Lyle, J. V. (ed.), Acts of the Privy Council of England. Vol. 39: 1623–1625, London, 1933, available at http://www.british-history.ac.uk/acts-privy-council/vol39. Lyle, J. V. (ed.), Acts of the Privy Council of England. Vol. 41: 1626, London, 1938, available at http://www.british-history.ac.uk/acts-privy-council/vol41. Lyle, J. V. (ed.), Acts of the Privy Council of England. Vol. 42: 1627, London, 1938, available at http://www.british-history.ac.uk/acts-privy-council/vol42. Macnair, M., ‘Common Law and Statutory Imitations of Equitable Relief under the Later Stuarts’, in: Brooks, C. W./Lobban, M. (eds.), Communities and Courts in Britain, 1150–1900, London, 1997, 115–131. Macnair, M. R. T., The Law of Proof in Early Modern Equity, Berlin, 1999. Macnair, M., ‘Equity and Conscience’, Oxford Journal of Legal Studies, Vol. 27(4), 2007, 659–681. Macnair, M., ‘Coke v Fountaine (1676)’, in: Mitchell, C./Mitchell, P. (eds.), Landmark Cases in Equity, Oxford, 2012, 33–61. Maitland, F. W., English Law and the Renaissance, Cambridge, 1901. Maitland, F. W., Equity: A Course of Lectures, 2nd ed., by Chaytor, A. H./Whittaker, W. J. (eds.), Cambridge, 1936. McIlwain, C. H., Political Works of James I, Cambridge MA., 1918. Milsom, S. F. C., Historical Foundations of the Common Law, 2nd ed., London, 1981. Monger, R. F./Penfold, P. A. (eds.), Acts of the Privy Council of England. Vol. 45: 1629–1630, London, 1960, available at http://www.british-history.ac.uk/actsprivy-council/vol45. Monro, C., Acta Cancellariae, London, 1847. Musson, A./Ormrod, W. M., The Evolution of English Justice, Basingstoke, 1999. Plucknett, T. F. T., A Concise History of the Common Law, 5th ed., London, 1956. Plucknett, T. F. T./Barton, J. L. (eds.), St German’s Doctor and Student, Selden So­ ciety, 91, London, 1974. Post, J. B., ‘Equitable Resorts before 1450’, in: Ives, E. W./Manchester, A. H. (eds.), Law, Litigants and the Legal Profession, London, 1983, 68–79. Pronay, N., ‘The Chancellor, the Chancery, and the Council at the End of the Fifteenth Century’, in: Hearder, H./Loyn, H. R. (eds.), British Government and Administration, Studies Presented to S. B. Chrimes, Cardiff, 1974, 87–103. Records of the Honorable Society of Lincoln’s Inn: The Black Books. Vol. III: 1660– 1775, London, 1899. Reid, R. R., The King’s Council in the North, London, 1921. Roper, W., ‘The Life of Sir Thomas More’, in: Sylvester, R. S. et al. (eds.), Two Early Tudor Lives, New Haven, 1969, 195–254.



The English Court of Chancery119

St. German, C., ‘A Little Treatise Concerning Writs of Subpoena’, in: Guy, J. A. (ed.), Christopher St German on Chancery and Statute, Selden Society, suppl. ser., 6, London, 1985, 106–126. Sanders, G. W., Orders of the High Court of Chancery, and Statutes of the Realm Relating to the Chancery, From the Earliest Period to the Present Time, London, 1845. Sayles, G. O. (ed.), Select Cases in the Court of King’s Bench under Edward I, Vol. II, Selden Society, 57, London, 1938. Selden, J., The Table-Talk, London, 1847. Shapiro, B., ‘Law Reform in Seventeenth Century England’, American Journal of Legal History, Vol. 19(4), 1975, 280–312. Simpson, A. W. B., A History of the Common Law of Contract: The Rise of the Action of Assumpsit, Oxford, 1975, reprinted 1987. Smith, D. C., Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616, Cambridge, 2014. Spedding, J./Ellis, R. L./Heath, D. D. (eds.), The Works of Francis Bacon, Vol. VII, Boston, 1859. Spence, G., The Equitable Jurisdiction of the Court of Chancery, Vol. 1, London, 1846. Stevens, M., ‘Failed Arbitrations before the Court of Common Pleas: Cases Relating to London and Londoners, 1400–1468’, Journal of Legal History, Vol. 31(1), 2010, 21–44. Tucker, P., ‘The Early History of the Court of Chancery: A Comparative Study’, English Historical Review, Vol. 115(463), 2000, 791–811. Turner, R. V., ‘The Origins of Common Pleas and King’s Bench’, American Journal of Legal History, Vol. 21(3), 1977, 238–254. Turner, R. W., The Equity of Redemption: Its Nature, History and Connection with Equitable Estates Generally, Cambrige, 1931. Waddilove, D. P., ‘Emmanuel College v Evans (1626) and the History of Mortgages’, Cambridge Law Journal, Vol. 73(1), 2014, 142–168. White, S. D., Sir Edward Coke and the Grievances of the Commonwealth, Manchester, 1979. Williams, I., ‘Developing a Prerogative Theory for the Authority of the Chancery: The French Connection’, in: Godfrey, M. (ed.), Law and Authority in British Legal History, 1200–1900, Cambridge, 2016, 33–59. Williams, P., The Council in the Marches of Wales under Elizabeth I, Cardiff, 1958. Yale, D. E. C. (ed.), Lord Nottingham’s Chancery Cases, 2 vols, Selden Society, 73/79, London, 1957/1961. Yale, D. E. C. (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’, Cambridge, 1965. Zaller, R., The Parliament of 1621: A Study in Constitutional Conflict, Berkeley, 1971.

W. PREST

An ‘ordinary court of justice’? The appellate jurisdiction of the House of Lords, 1689–1760 The Lords House, not only jointly with the King and the Commons, hath a Power in making and repealing Laws, but also in judging in the Arraignment of any Peer of the Realm, Impeachments, putting men to their Oaths, especially in matters of Importance, as the Corruption of Judges and Magistrates, in Error, illegal Proceedings in other Courts, in Appeals from Decrees in Chancery. J. Chamberlayne, Magnae Britanniae Notitia: or the Present State of Great Britain, London, 1727, p. 91 Lastly, there presides over all one great court of appeal, which is the last resort in matters both of law and equity; and which will therefore take care to preserve an uniformity and equilibrium among all the inferior jurisdictions: a court composed of prelates selected for their piety, and of nobles advanced to that honour for their personal merit, or deriving both honour and merit from an illustrious train of ancestors; who are formed by their education, interested by their property, and bound upon their conscience and honour, to be skilled in the laws of their country. W. Blackstone, Commentaries on the Laws of England, vol. 3, Oxford, 1768, p. 60

The upper chamber of England’s bi-cameral Parliament emerged as Great Britain’s central and final court of appeal through a complex and protracted process, extending from medieval times until the early decades of the eighteenth century. This now appears a very singular development. For most European central or supreme courts which came into existence during the early modern period seem to have been the more or less consciously-planned offshoots of increasingly ambitious and powerful monarchical governments. Yet – as every schoolchild supposedly once knew – the conflicts between England’s Stuart kings and their parliaments during the seventeenth century culminated not in the triumph of royal absolutism, but rather the establishment of a limited or mixed monarchy, largely defined by the constitutional settlement which followed the ‘Glorious Revolution’ (or Dutch invasion) of 1688–89. Henceforth parliament sat regularly every year, enabling the House of Lords to continue exercising its appellate role at the apex of the English legal structure until the creation in 2009 of a Supreme Court for the United Kingdom.1 1  In the course of preparing this contribution, which builds upon papers presented at Maastricht in 2013 and Edinburgh in 2014, I have incurred numerous obli-

122

W. Prest

While the ‘cursory treatment’, ‘little attention’ and ‘remarkably little interest’ devoted to examining the judicial work of the early modern House of Lords have been much lamented, we are now quite well-informed about the revival, expansion and consolidation of the Lords’ role as England’s supreme court of appeal in the course of the seventeenth century.2 Yet notwithstanding the pioneering scholarship of Allen Horstman, James Hart, Robert Stevens and others, it was remarked only recently that the ‘judicial work of the House between 1690 and 1870 requires more detailed study’.3 This gap in legal-historical knowledge stands in marked contrast to the considerable accumulated mass of published research on the legislative and political roles of the Upper House during the later seventeenth and eighteenth centuries, when the House of Lords had arguably become ‘the most formidable member of the parliamentary triumvirate’ of King, Lords and Commons, indeed ‘the dominant partner in the constitution for more than one hundred years’.4 Without attempting to fill that gap, the following contribution seeks to outline how the House of Lords came to acquire its appellate jurisdiction and how that legal authority was exercised between the Glorious Revolution and the accession of George III in 1760. The significance of these dates for our present purpose is that they encompass the penultimate stage in the development of the Lords’ judicial capacity, when the chamber first began to function on a regular uninterrupted basis as Great Britain’s supreme court, but before this role was delegated exclusively to professional lawyers (or ‘law lords’) in the early nineteenth century. gations, not least to all who participated in those workshops. I also wish to thank particularly Ruth Paley, the late Henry Horwitz, Clyve Jones, Andrew Lewis, and my Adelaide colleagues David Lemmings and Jean Fornasiero. Cf. L. Blom-Cooper/B. Dickson/G. Drewry, The Judicial House of Lords, 1876– 2009, Oxford, 2009. 2  C. Jones/G. Holmes (eds.), The London Diaries of William Nicolson Bishop of Carlisle, 1702–1718, Oxford, 1985, p. 100; A. Swatland, The House of Lords in the Reign of Charles II, Oxford, 1996, p. 71; J. S. Hart, Justice upon Petition: The House of Lords and the Reformation of Justice 1621–1675, London, 1991, p. 2; A. Horstman, Justice and Peers: the Judicial Activities of the Seventeenth-Century House of Lords, PhD thesis, University of California at Berkeley, 1977, p. 1. 3  R. Stevens, Law and Politics: the House of Lords as a Judicial Body, 1800–1976, London, 1979; D. L. Jones, The Judicial Role of the House of Lords Before 1870, in: Blom-Cooper/Dickson/Drewry, Judicial House of Lords, p. 10, fn. 14. Since this chapter was written, I have been able to read P. Loft, Peers, Parliament and Power under the Revolution Constitution, 1685–1720, PhD thesis, University College London, 2015, which includes by far the best available study of the Lords’ judicial functions in the later seventeenth and early eighteenth centuries. 4  J. V. Beckett/C. Jones, A Pillar of the Constitution, London, 1980, p. 18; cf. R. Eagles, Geoffrey Holmes and the House of Lords Reconsidered, Parliamentary History, 28, 2009, pp. 15–26.



An ‘ordinary court of justice’?123

The absence of the House of Lords from a survey of ‘Superior Courts in England, 1450–1800’ by England’s foremost legal historian serves to underline that body’s somewhat anomalous status as a court of law, even within the bewildering jumble of conflicting and parallel jurisdictions which to­ gether made up early modern England’s legal ‘system’.5 Common law, ­equity, ecclesiastical law and civil law were each administered by distinct hierarchies of courts, mostly presided over by judges whose incomes depended in part on fees paid by litigants, a circumstance which inevitably encouraged inter-jurisdictional competition for business and forum shopping, cross-suits and parallel litigation initiated by lay clients. The exceptions were the lowest and highest national secular jurisdictions, the courts of Petty and Quarter Sessions and the House of Lords, both largely staffed by lay judges, respectively justices of the peace and peers of the realm, rather than professional jurists qualified via the common-law inns of court or university law faculties. Another point of similarity between these two opposite ends of the curial spectrum was their non-specialised nature; the justices in their sessions served administrative as well as magisterial functions, while the House of Lords was as much a legislative body as a court. During the four yearly law terms the great late eleventh-century hall built by William Rufus at Westminster was the venue for sittings of the ancient common law courts of King’s Bench, Common Pleas and Exchequer, together with the more recently established Court of Chancery, which had a ‘Latin’ common-law side in addition to its major ‘English’ equity jurisdiction. The House of Lords met nearby in the notably more cramped queen’s chamber of Westminster Palace, only occasionally taking over Westminster Hall for the public trials of peers and other causes célèbres. The routine appellate business which is the main subject of this chapter required no such temporary relocation. On the contrary, all common-law judges received writs of summons to attend the House of Lords as ‘assistants’, while it was standard practice for one or more of their number to be summoned from the Hall in order to advise or answer specific questions posed by the Lords. Indeed to modern eyes not the least striking feature of the House of Lords as supreme judicature in the later seventeenth and eighteenth centuries was its essentially lay or non-professional character. The proceedings of the House were chaired by its Speaker, normally the lord chancellor or lord keeper of the great seal, by this time almost always a career common lawyer and a peer. When that office was vacant (as between 1689–93, 1708–10, and for a few months in 1725 and 1756–7), or its holder was for some reason 5  J. H. Baker, The superior courts in England, 1450–1800, in: B. Diestelkamp (ed.), Oberste Gerichtsbarkeit und Zentrale Gewalt im Europa der Frühen Neuzeit, Cologne, 1996, pp. 73–111.

124

W. Prest

unavailable to act, a common-law judge would be appointed to the speakership. But decisions on individual legal cases, as with the passage of legislation and indeed any other business coming before the House, were made either ‘on the voices’ or (if a division were called for) by simple majority vote. The maximum seating capacity of the Lord’s chamber was only about 150, but ‘it was rare for the number of peers actually attending the House to reach three figures’, with 100 regarded as constituting a full house.6 Yet after the Act of Union between England and Scotland was signed in 1707, more than 200 individual noblemen, including 26 bishops and archbishops (the ‘Lords Spiritual’) and 16 Scottish peers, received writs entitling them to attend and participate fully in all judicial as well as other proceedings. Apart from the presiding lord chancellor, or former chancellors still sitting as peers, and chief justices of the court of king’s bench who had been ennobled during their tenure of office, very few of these individuals – including those holding honorary doctorates of law – were likely to possess much if any theoretical legal learning, even if they might well have had some practical experience of the law as justices of the peace or otherwise in relation to their landed estates. It is certainly not surprising that the physical and mental rigours of a career at the bar generally held little attraction for young aristocrats with expectations of inheriting a title.7 We shall return below to consider the implications of an essentially unlearned body functioning as ‘a COURT of SUPREME and FINAL Judicature’ (to quote an early reporter of appeals cases heard before the House of Lords).8 A final point of difference further emphasises the unique status of the House in its judicial capacity. The archival rolls and other records of England’s superior courts of common law and equity, mostly preserved in the Tower of London, were transferred in the nineteenth century to the Public Record Office and are now accessible at the National Archives, Kew. By contrast the House of Lords still continues to conserve and control its own documentary records in the Parliamentary Archives (formerly the House of 6  C. Jones, Seating Problems of the House of Lords in the Early Eighteenth Century: the Evidence of the Manuscript Minutes, in: Bulletin of the Institute of Historical Research, 51, 1978, pp. 132–45; R. Paley/P. Seaward (eds.), Honour, Interest and Power: an Illustrated History of the House of Lords, 1660–1715, London, 2010, pp. 153, 219, 225–6. Cf. J. Cannon, Aristocratic Century: the Peerage of EighteenthCentury England, Cambridge, 1984, pp.12–15, 22, 44–59. 7  Sir Thomas Parker (created Lord Parker, 1716); Sir Robert Raymond (Lord Raymond, 1731) and Sir Philip Yorke (Lord Hardwicke, 1733); Sir Thomas Trevor (Lord Trevor, 1712) was the sole Chief Justice of Common Pleas to be ennobled during our period: J. C. Sainty, The Judges of England, 1272–1990, London, 1993, pp. 12–13, 50–51. Cannon, Aristocratic Century, pp. 15, 22. 8  J. Brown, Reports of Cases upon Appeals and Writs of Error, in the High Court of Parliament, vol. 1, London, 1779, p. i.



An ‘ordinary court of justice’?125

Lords Record Office), located in the Victoria Tower of the Palace of Westminster, rebuilt after the fire which destroyed most of the original Palace of Westminster in 1834. Much of this mass of paper and parchment was generated by judicial activities. Indeed from as early as 1629 the Lords were said to be spending more time on their judicial functions than in any other capacity, and by the early eighteenth century proceedings on appeals constitute ‘the largest class of records surviving’ for the House.9 The manuscript journals and minutes which record day-to-day attendance and proceedings include summaries of the successive stages in judicial process, both for cases of first instance and on appeal, with the full text of judgments, orders and reports from committees. Much of this material appears in the printed Journals of the House of Lords, but in addition there are separate series of committee books, books of orders and judgments, and numerous administrative records relating to the different stages of cases brought before the House. A distinctive and indeed quite unique record class is made up of the printed broadsheet case summaries, sometimes extending over four pages or more, lodged on behalf of contending litigants in order to inform the peers of the main facts and disputed points in each suit before the formal presentations of counsel for each party. These printed cases are in English, as is most of the existing judicial archive of the House of Lords, whereas Latin remained the written language of the common-law courts (but not Chancery) from 1660 until 1733 when their records were ‘Englished’ for a second and final time (after having first been briefly put into English during the mid-seventeenth century republican interlude).10 In short, both the location and the nature of its judicial records are indicative of the unusual role and standing of the House of Lords as a court of law. 1. Political Context Like much else in early modern England, the House of Lords’ judicial functions were rooted in the medieval past. The ‘High Court of Parliament’ (as it is still formally termed today) was originally part of the concilia regis, the king’s great council, which among its other responsibilities dispensed justice in response to the petitions of the king’s subjects. During the early fourteenth century the Lords became identifiable as a separate body of magnates, distinct from both the great officers of state who continued to advise the king as his everyday councillors and the elected representatives of coun9  C. Jones (ed.), A Pillar of the Constitution, London, 1989, pp. vi–viii; D. J. Johnston (ed.), The Manuscripts of the House of Lords. Vol. 12 (New Series): 1714– 1718, London, 1977, p. xxxiii. 10  M. F. Bond, Guide to the Records of Parliament, London, 1971, pp. 32–33, 43, 107–23; see also http://www.portcullis.parliament.uk.

126

W. Prest

ties and boroughs who were now sometimes summoned to meet on their own in Westminster Abbey, adjoining Westminster Palace. While the House of Commons came to assert an exclusive right to propose money grants to the king, the upper house (not yet termed the House of Lords) maintained that they alone had jurisdiction over petitions to correct errors in the court of King’s Bench, a claim endorsed by the king’s judges in 1485, the year that the first Tudor monarch, Henry VII (1485–1509) successfully claimed the throne on Bosworth Field from the slain Lancastrian Richard III (1482– 1485). They also exercised an original criminal jurisdiction over both their own membership (or at least the peers of the realm, not the episcopal lords spiritual) in indictments of treason and felony, as well as any person, whether nobleman or commoner, impeached or accused of ‘high crimes and misdemeanours’ by the House of Commons. Yet from the middle of the fifteenth century the Lords’ judicial activities (other than the trial of peers) lay largely dormant for nearly two hundred years. As Holdsworth noted, ‘[t]he last medieval impeachment was in 1459’ and the Lords’ jurisdiction in error over cases and judgments from the courts of King’s Bench and Chancery (common-law side) was little used, despite legislation of 1585 and 1588 explicitly recognizing a right of redress by writ of error to parliament’s upper house.11 The reasons are complex, various and far from entirely clear. Proceedings in error were costly and available only during short and intermittent parliamentary sessions. Other jurisdictions, including the relatively new Court of Chancery and the king’s privy council sitting as the court of Star Chamber, took up some of the slack. It may be that the revived and strengthened personal authority of the Tudor monarchy under Henry VIII (1509–1547) and Elizabeth I (1558–1603), as also the confessional divides and foreign threats of the Reformation era, reduced the scope for impeachments, previously used to bring unpopular royal favourites and councillors to trial, as against the cruder parliamentary instrument of acts of attainder, which simply convicted the unfortunate accused by legislative fiat. With the accession to the throne of the Scottish-born James Stuart in 1603, England’s political climate grew increasingly unsettled, as ethnic jealousies, fiscal pressures and divisions over religion and foreign policy exacerbated tensions between the monarch and significant sections of the political nation represented in both houses of parliament. In 1621 a new parliament, meeting for the first time after a seven-year break, was persuaded by the disgruntled former chief justice Sir Edward Coke MP, whom James had dismissed from 11  W. S. Holdsworth, A History of English Law, vol. 1, London, 1903, p. 381; J. H. Baker, The Oxford History of the Laws of England. Vol. 6: 1483–1558, Oxford, 2003, p. 404.



An ‘ordinary court of justice’?127

office five years before, to revive the long-disused process of impeachment (not yet so labelled), notwithstanding the king’s objections. Coke’s first target was a pair of notoriously corrupt businessmen and court cronies, but attention soon shifted to a much bigger fish, his life-long personal rival, the ennobled Sir Francis Bacon, Viscount St Albans and Lord Chancellor, who was summarily convicted, by his peers and on his own confession, of bribery in office.12. These sensational developments marked the return of impeachment as a potent weapon for use by court rivals and parliamentary dissidents against the Crown’s councillors and ministers.13 But the 1620s also saw a flood of petitions directed to the House of Lords by individual subjects who sought a review of orders and judgments in lower courts, as well as the determination of complaints and disputes not previously litigated. From a total of over 300 such requests presented to the upper house in the five parliaments of this decade, more than 200 received a hearing.14 Only about half of these contentious matters dealt with cases previously decided. The remainder involved the Lords’ exercising an original jurisdiction, arguably not in itself entirely unprecedented, even if the precedents were very ancient. But the reviewing of not just the occasional common-law judgment, but numerous orders and decrees handed down by the equity jurisdictions of Chancery and the Exchequer, as well as other conciliar courts (Requests, Star Chamber and Wards), not to mention various church courts, the Court of Admiralty and the London Court of Orphans, was an undoubted innovation.15 When parliament reassembled in 1640 after eleven years of non-parliamentary government, the House of Lords continued where it had left off, asserting an even wider sphere of judicial competence after the outbreak of civil war between parliamentarians and royalists in 1642, when it took over some state security functions formerly discharged by the privy council and Star Chamber. The upper house was abolished as ‘useless and dangerous to the people of England’ just one day before the kingly office itself was temporarily legislated out of existence by the victorious parliament and its army in 1649. But the Lords came back with a vengeance eleven years later, on the collapse of the republic and the restoration of the monarchy in the person of Charles II. Its members, the lords both spiritual (two archbishops and 12  J. R. Tanner, Constitutional Documents of the Reign of James I, 1603–1625, Cambridge, 1930, pp. 321–35; L. L. Peck, Court Patronage and Corruption in Early Stuart England, Boston MA, 1990, pp. 185–96. 13  Cf. C. Russell, Parliaments and English Politics, 1621–1629, Oxford, 1979, pp. 17–19. 14  Hart, Justice upon Petition, pp. 16–17. 15  Hart, Justice upon Petition, pp. 17–18.

128

W. Prest

24 bishops) and temporal (some 150 dukes, earls, marquesses, viscounts and barons), now determined to uphold all the collective and individual rights and privileges, including those of a judicial nature, previously asserted and identified on their behalf by various scholarly antiquaries. The nature and extent of the Lords’ judicial powers were further explored, contested and defined over the next half-century, not least in a series of clashes between parliament’s two constituent chambers. A protracted dispute arising from the matter of Skinner v The East India Company (1667–1670) saw the upper house eventually abandon its asserted power to act as a court of first instance (except on impeachments, and over or in regard to its own members). A subsequent disagreement between Lords and Commons centred on the case of Shirley v Fagg (1675), in which one of the king’s doctors sought a review of the Chancery decision that had upheld the claims of a sitting MP, Sir John Fagg, to some disputed property deeds. This time the Commons backed down, not persisting in their denial of the Lords’ competence to entertain appeals from Chancery and other equitable jurisdictions, as distinct from their less controversial if more rarely exercised jurisdiction in error over the King’s Bench and other common-law courts.16 Controversy about the scope of the Lords’ competence as a court of review and friction with the Lower House on this issue did not cease at the Glorious Revolution. But the annual parliamentary sessions which ensued from 1689 onwards made it much easier for the upper chamber to operate as a regular judicial institution with settled forms and procedure. (No Parliament had met between the years 1614–1621,1629–1640, 1680–1685 and 1685–1688, while the Lords were in limbo between 1649 and 1660). After the 1707 Union between England and Scotland an increasing volume of appeals business flowed south across the border to Westminster, especially when the Lords ruled in 1709 that an appeal properly lodged against a Scottish decision effectively barred implementation of that decree or sentence pending the appeal’s outcome. Ireland provided another fertile source of appellants, even before the 1720 statute which denied the Irish parliament sitting in Dublin any appellate jurisdiction.17 So while the judicial functions of the early modern House of Lords had a long pedigree, the form which they assumed from 1689 onwards was also shaped by current and recent events. The most significant of these were the de facto achievement of parliamentary sovereignty and rejection of monarchical absolutism or autocracy, the associated securing of England’s distinc16  Hart, 17  L. O.

p. 300.

Justice upon Petition, pp. 242–60. Pike, A Constitutional History of the House of Lords, London, 1890,



An ‘ordinary court of justice’?129

tive common-law ideological and institutional inheritance, and the consolidation of the new British state’s authority, centred in metropolitan London, over the entire British Isles. These circumstances provided the necessary context within which the supreme appellate jurisdiction of the House of Lords could develop over the succeeding seventy years. 2. Jurisdiction We have seen that the judicial role of the House of Lords long pre-dated the first four Stuart monarchs and their aspirations to enhance kingly authority along lines mapped out and more successfully pursued by various European rulers during the sixteenth and early seventeenth centuries. Yet notwithstanding the extensive legal genealogies upholding the Lords’ jurisdiction compiled during the seventeenth century by John Selden, Henry Elsyng, William Prynne and Denzil Holles,18 the appellate role that body first took on during the 1620s was a genuine novelty– indeed a revolutionary departure. For as Professor van Caenegem has memorably observed, ‘the common law is different’. In continental Europe appeals procedures which enabled dissatisfied litigants to have judges of a central superior court rehear cases originally tried in provincial courts of first instance were introduced from the thirteenth century onwards. Indeed the right to lodge appeals on both legal and factual grounds has been characterised as ‘a general rule’ of civil-law jurisdictions.19 But in England the legal term ‘appeal’ signified a private indictment for a serious crime, not the review of a lower court’s decision by a superior jurisdiction; as the sixteenth-century civilian Thomas Smith noted, ‘That which in England is called appeal, [is] in other places accusation’.20 The classical common law recognized no right or need to go beyond formally enrolled decisions of the king’s judges sitting in the king’s courts of record at Westminster Hall. The best that might be done was to sue out a writ 18  J. Selden, The Privileges of the Baronage of England when they sit in Parliament, London 1689; [H. Elsyng], Of the Judicature in Parliaments, London, 1681; W. Prynne, A Plea for the Lords and the House of Peers, London, 1658; [D. Holles], The Grand Question Concerning the Judicature of the House of Peers, London, 1669. For the authorship of Elsying and Holles, see E. Foster, The Painful Labour of Mr Elsynge, Philadelphia, 1972; P. M. Crawford, Denzil Holles, 1598–1680, London, 1979, pp. 222–3. 19  Cf. R. C. Van Caenegem, Judges, Legislators and Professors: Chapters in European Legal History, Cambridge, 1987, Chap. 1 (‘The Common Law is Different: Ten Illustrations’), pp. 5–6; J. H. Merryman, The Civil Law Tradition, Palo Alto CA, 1969, p. 127. 20  Cf. M. S. Bilder, Salamanders and Sons of God: the Culture of Appeal in Early New England, in: C. L. Tomlins/B. H. Mann (eds.), The Many Legalities of Early America, Chapel Hill NC, 2001, pp. 50–51 and passim.

130

W. Prest

of error, alleging the existence of some technical mistake or omission ‘in the record, the process or the rendering of judgment’.21 But not even this expensive and narrowly defined remedy was available to those unhappy with a decree or order made in one of the more recently established conciliar, English-bill or equity courts, above all the Court of Chancery, which from the late fourteenth century onwards had provided litigants with an increasingly popular mode of dispute resolution, derived procedurally in part from Roman or civil law, more flexible and responsive to the demands of conscience, equity and justice than the common law’s rigorous and somewhat restrictive ‘due process’. The later sixteenth and early seventeenth centuries saw growing use of the term ‘appeal’ in a sense that would have been entirely familiar to civil lawyers, coupled with recognition by both common lawyers and laymen – including William Shakespeare in his late and probably co-authored play Henry VIII, where Catherine of Aragon is represented as appealing from the king and Cardinal Wolsey to the pope – that appeals from an inferior to a supreme jurisdiction played a legitimate role in the administration of justice.22 It is some indication of the widespread acceptance of this concept that while the peers were discussing in 1621 whether they could or should accommodate petitioners seeking review of Chancery cases, a debate in the lower house on abuses in the law heard the suggestion that ‘Erronious Decrees’ in Chancery might be redressed by ‘a Commission of reviewe, a Writt of Errour devised or some Courte of Appeale erected’.23 The revival and expansion of the appellate judicature of the House of Lords in the 1620s was definitely not the result of a conscious design or policy developed by the king or his ministers. True, in March 1621 James took the initiative of referring to the Lords a petition seeking review of the record of an habitual litigant’s case in King’s Bench. But there is no indication that this was anything but an ad hoc decision on the king’s part. Its practical effect was merely to resurrect a venerable but undoubted judicial capacity which had slumbered since 1589. Nor does James seem to have had any involvement in the four potentially far more significant petitions con21  Baker, Oxford History of the Laws of England, pp. 409–407; idem, An Introduction to English Legal History, 4th ed., London, 2002, pp. 135–6. A writ ‘of false judgment’ served the same purpose for manorial and other local courts not ‘of record’. 22  Bilder, Salamanders and Sons of God, pp.  52–62. [W. Shakespeare and J. Fletcher(?)], The History of King Henry VIII, II. iv. l.1484; cf. W. Shakespeare, Measure for Measure, I.ii. l. 266. Shakespeare also used the word in the traditional sense: cf. The History of Richard II, I. i. l.4. 23  Hart, Justice upon Petition, pp. 46–7; W. Notestein/F. H. Relf/H. Simpson (eds.), Commons Debates, 1621, vol. 4, New Haven CT, 1935, p. 193.



An ‘ordinary court of justice’?131

cerning Chancery decrees also presented to the Lords during the first session of this parliament. While this quartet seemingly sank without trace, the young Yorkshire puritan squire Sir John Bourchier was slightly more fortunate in the dying days of the second session, when his complaint about Lord Keeper Bishop John Williams’s conduct of a Chancery case was referred to a Lords Committee and Bourchier himself eventually examined before the whole House. Although his allegations against Williams were rejected and Bourchier himself censured, several peers (including the archbishop of Canterbury and Williams himself) expressed willingness to review the merits of the case by way of appeal, a course opposed only by the heir to the throne, Prince Charles.24 But if the House of Lords trod cautiously in 1621, showing little initial eagerness to expand a newly revived appellate function, such inhibitions had largely disappeared by the end of the decade. The Lords’ jurisdictional reach expanded further during the tumultuous events of the early 1640s, especially after the Long Parliament’s abolition of Star Chamber and other conciliar courts, followed by the collapse of royal authority and the descent into outright civil war. However inevitable in the circumstances, as a response to demand from litigants and to supply judicial functions hitherto provided by other bodies, this enlargement of the Lords’ jurisdiction was not universally welcomed. Besides difficulty in enforcing its orders, especially those which upheld the property rights of noble land-holders against the interests of local communities, the House increasingly encountered principled protests against its judicial pretensions, not least with regard to original criminal cases and in assuming the Court of Star Chamber’s former press censorship role. When John Lilburne, the outspoken leader of the radical democratic Leveller movement, received a summons to appear before the Lords in 1645 for his pamphlet attacking (among others) the parliamentarian general Edward Montague, earl of Manchester, he responded that ‘your Lordships, by Magna Charta and the Law of this Kingdome have nothing to doe with me, being a Commoner[,] in any iudiciall way, to try me for a criminall cause …’25. Four years later ‘the Commons of England assembled in Parliament’ put a temporary end to the very existence of the House of Lords. But when both monarchy and Lords returned in 1660, controversy over the precise bounds 24  Hart, Justice upon Petition, pp. 15, 46–7, 55n; Lords Journals, vol. 3, pp. 179, 189–90. Bourchier’s 1621 petition is not noticed by D. Scott, Bourchier, Sir John (c. 1595–1660), Oxford Dictionary of National Biography, Oxford, 2004; online ed., Jan 2008 (https://doi.org/10.1093/ref:odnb/2991). 25  E. R. Foster, The House of Lords, 1603–1649: Structure, Procedure, and the Nature of its Business, Chapel Hill NC, 1983, pp. 184–5; J. Lilburne, The Freemans Freedome vindicated, London, 1646, p. 5; A. S. P. Woodhouse, Puritanism and Liberty, London, 1951, pp. 339, 341, 428, 451.

132

W. Prest

of the peers’ jurisdictional powers entered a new phase, marked by fierce determination on the part of the Lords to uphold all their newly restored prerogatives, and consequent jealousies between the two Houses, often aggravated by factional, court/country, and Whig/Tory divisions. There are also signs of growing disquiet and resistance within the legal profession with regard to claims that the Lords possessed what the successful Interregnum survivor Lord Chief Justice Sir Matthew Hale termed ‘a radical and inherent power’, enabling the upper house to review Chancery decrees, and indeed exercise any judicial function on its own initiative, without reference to the common law or an express commission from the Crown.26 Although not printed until the last decade of the eighteenth century, perhaps for fear of incurring the displeasure of the House and its Committee of Privileges, Hales’s carefully formulated and heavily documented views on the extent of the Lords’ legal authority probably circulated in manuscript, like some other tracts on the same general topic.27 More publicly accessible reservations along similar lines were expressed in the 1690s by another notably learned judge, the redoubtable common-law dynast Sir Robert Atkyns, whose recent conspicuous loyalty to the Whig cause had earned him promotion as Lord Chief Baron of the Exchequer and speaker of the House of Lords at the Glorious Revolution. In 1695, shortly after retiring from both these posts, Atkyns brought an appeal to the Lords against a Chancery decree which prevented him recovering a substantial debt secured by mortgaged London properties held in trust under a complex marriage settlement. Early next year this petition was dismissed with costs, notwithstanding two previous favourable judgments delivered by colleagues in his own Exchequer court (where he may have felt obliged to sue, as an officer of that jurisdiction). Atkyns probably did not improve his chances by publishing before the hearing a fifty-page pamphlet documenting and denouncing in some detail Chancery’s encroachments on the common law, together with an appended twelve-page statement of his pending case, the whole professedly dedicated ‘meerly to assist and serve your Lordships’.28 26  M. Hale, The Jurisdiction of the Lords House or Parliament considered according to Ancient Records, ed. by F. Hargrave, London, 1797, pp. 82, 168, 192–3; cf A. Cromartie, Sir Matthew Hale 1609–1676, Cambridge, 1993, pp. 111–117. 27  E. g. British Library, MS Hargrave 128, fos. 31–32v (‘Remarks on the Jurisdiction of the Lords, upon Writs of Error and Appeals in Parliament’); MS Stowe 299 (‘A Discourse of the late Earle of Anglesey’s … setting forth the jurisdiction of the Lords …’), printed in A. Annesley, The Privileges of the House of Lords and Commons Argued, London, 1702, pp. 57–165. 28  R. Atkyns, An Enquiry into the Jurisdiction of the Chancery in Causes of Equity, London, 1695; idem, The Case of Sir Robert Atkyns, Knight of the Honourable Order of the Bath, Upon His Appeal Against A Decree obtain’d by Mrs. Elizabeth Took (the now Wife of Thomas Took, Esq;) and others, Plaintiffs in Chancery, about a Separate



An ‘ordinary court of justice’?133

This was by no means the first time that Atkyns had figured in an appeal to the House of Lords. Earlier stages of the same long-drawn out battle over the London estate had involved two contested petitions from opposing parties seeking reviews of the Exchequer decrees, with outcomes no more favourable to Atkyn’s cause.29 In his professional capacity he had also recently petitioned the chamber over whose deliberations he presided with complaints about the appointment of a legal office-holder by the Lords Commissioners of the Great Seal without his consent, and over fees which he claimed from the Comptroller-General of Customs for auditing the Customs accounts. Referred to the Lords’ Committee of Privileges, no more would be heard of the first of these pleas. On the second, after hearing from the three other Court of Exchequer judges and the Tory peer and first Lord of the Treasury Sidney Godolphin, the whole House resolved that Atkyns’s complaint raised no issue of privilege.30 These various transactions had not only occupied a good deal of the House’s time, but plainly involved a potential conflict between Atykyns’s personal interests and his official role as speaker, from which he appears to have temporarily withdrawn with some reluctance in February 1692, after a motion to consider ‘whether the Speaker shall be present, or sit as Speaker, at the hearing of his own cause’.31 So while ­Atkyns was not without friends and supporters among the peers (as witness an unusual address to the king later that same year, seeking ‘some marks of grace and favour’ for their speaker), it is entirely possible that a mixture of personal prejudice and anti-Whig political partisanship played a part in all these unfavourable outcomes, including the dismissal by a full House on 13 March 1696 of his appeal against the Chancery decree. Among those listed as present at the beginning of that day’s session was the leading Tory peer Daniel Finch, earl of Nottingham, whom Atkyns had rashly singled out in a ‘republicarian’ speech or lay sermon at the installation of London’s new Lord ­Mayor in October 1693, ‘that reflect[ed] much upon the Lord Nottingham and the Church’.32 Unfortunately, as is usually the case, no record of the voting on Atkyns’s appeal survives. Maintenance of 200 l. per Ann. clear above all Charges settled on Mrs. Took, besides a Large Jointure, London 1695. These complex transactions are helpfully unpicked by J. Rudolph, Common Law and Enlightenment in England, 1689–1750, Woodbridge, 2013, pp. 130–163. 29  Lords Journals, vol. 14, p. 80; vol. 15, pp. 22, 44, 71, 77, 93. 30  Ibid., vol. 14, pp. 245–6, 260–1; vol. 15, pp. 143–5, 148–9, 158–60. 31  Ibid., pp. 71–2. 32  Ibid., pp. 121–3, 703–4; H. Horwitz, Parliament, Policy and Politics in the reign of William III, Manchester, 1977, p. 118; [R. Atkyns], The Lord Chief Baron Atykyns Speech to Sir William Ashurst, London 1693. Cf. Rudolph, Common Law and Enlightenment, pp. 160–61.

134

W. Prest

Atkyns’s immediate response to this ignominous rebuff by the body over which he had recently presided is also unknown. But three years later the indefatigable septuagenarian issued his final publication, in the form of a pamphlet propounding the strictly limited nature of the Lords’ judicial authority, dedicated (as it were on the rebound) to the ‘Knights, Citizens, and Burgesses of the House of Commons in Parliament Assembled’. While asserting that he did not ‘complain of any thing that meerly concerns himself’, terming ‘a Case wherein himself was a Party, meerly as an Instance of the large Exercise of a power against the known and fundamental Rules of the Common-Law’, ­Atkyns could not resist drawing a connection between his recent defeat in Chancery and the fact that ‘he hath for many years frequently and publickly in his Station enveigh’d against the Encroachments of Courts of Equity, and that late course of Appeals’.33 But the main purpose and thrust of his pamphlet was in fact to contradict the claim of ‘An Eminent Author, supposed to be the late Lord Holl[e]s’, that the House of Lords ‘have an undoubted Right to an Universal and Unlimited Power of taking Conusance of all Manner of Causes …’34 As implied by his subtitle, ‘Of the Supreme Jurisdiction in the Kingdom of England’, Atkyns maintained that only parliament – that is, King, Lords and Commons assembled together in parliament, ‘the Supreme Court of the ­Nation’ – could lawfully exercise such a power.35 According to Atkyns, Holles had been led astray by ‘some late over-zealous and injudicious Writers’, particularly the presbyterian lawyer William Prynne and the royalist apostle of patriachalism Sir Robert Filmer, who ‘out of a too fond and forward Zeal to depress the House of Commons’ in reaction to the usurpations of the civil war era, ‘thought they could never sufficiently Exalt the Power of the Lords, to over-ballance that of the Commons’. The bulk of Atkyns’s argument is cast in a familiar legal-antiquarian mode, citing authorities, cases and records from Roman, Anglo-Saxon, Norman and medieval times to establish the original limited nature of the Lords’ jurisdiction. Like Hale before him, Atkyns was particularly concerned to deny the House any right to act unilaterally on petitions to review decrees from courts of equity without a prior commission from the Crown or any involvement of the Commons . He also provided a close reading of the Lords Journals from James I’s reign, in order to emphasise the caution with which the peers then approached their possible exercise of a novel jurisdiction. The pamphlet closes with a final salvo at Holles, whose large claims, if ever fully realised, would be ‘of mighty concernment to the Subjects’, since 33  R. Atkyns, A Treatise of the True and Ancient Jurisdiction of the House of Peers, London, 1699, dedication (unpaginated). 34  Ibid., pp. 1–2. 35  Ibid., p. 2.



An ‘ordinary court of justice’?135 The persons of whom this high Judicature doth consist had need be men of great Learning in the Law, and of long Experience: for the matters that should come before them are such, as are too difficult for the inferior Courts to determine, and are very abstruse; and yet those inferior Courts are generally furnish’d with such as are of great Abilities, and long Experience, and usually spend Thirty or Forty years in hard study, to make them fit for the discharge of their Offices. Be Learned ye that are judges of the Earth, says Almighty God, that Judge of Judges … It would indeed be a Miracle in Nature, if any one could truly affirm of himself, Me iam iam à puero illicò nosci Senem [already from a child I knew myself to be an old man] or nosci Judicem [a judge], to be able to judge in those abstruse and difficult Causes.36

To dwell upon the paucity of the peers’ legal learning might have risked attracting the attention of their Committee of Privileges. But there was no need; Atkyns’s readers would have seized the point immediately. Indeed his timing was impeccable, because the legal limits of the Lords’ judicial authority were about to be bitterly disputed once again, in what proved the third and final major confrontation between the two houses of parliament on this sensitive topic. In the general election of 1700, some would-be Whig voters in the town of Aylesbury were prevented from casting their ballots. The disenfranchised burgesses sued the partisan Tory officials responsible, and although their claim was rejected by the Court of Queen’s Bench (with Lord Chief Justice Holt in dissent against his three puisne colleagues), they eventually brought (or sought to bring) appeals by writ of error to the House of Lords. The Lords’ decision in favour of the appellant Matthew Ashby, reversing the decision of the lower court, sparked a furious reaction from the Tory-dominated House of Commons. Insisting on their possession of sole authority to determine ‘all Matters relating to the Right of Election of their own Members’, the Commons held Ashby in contempt and warned that any litigant or lawyer who might follow his example would be similarly ‘guilty of a high Breach of the Privilege of this House’ and subject to imprisonment. Thus the rage of party sharpened inter-cameral jealousies in what became known to posterity as Ashby v White (1702–1704) and Paty’s Case (1704). Together with the fundamental underlying issues – the jurisdictional boundaries of Commons and Lords, and the still more politically sensitive question of control over the right to vote and thus the composition of the lower house – these actions raised the political temperature at Westminster to fever pitch, creating an impasse between the two houses which was only resolved by parliament’s prorogation in April 1704.37 36  Ibid.,

p. 36. Williams, The Eighteenth Century Constitution, 1688–1815, Cambridge, 1960, pp. 221–32; A. S. Turberville, The House of Lords in the Eighteenth Century, 37  E. N.

136

W. Prest

As with Skinner v East India Co and Shirley v Fagg in the previous century, the Aylesbury election controversy produced an outcome only by default and in retrospect; at no stage did the Lords explicitly accept any limitation of their appellate capacity with regard to electoral or any other matters. But the two houses managed to avoid further major confrontation on this subject, even while they continued to quarrel about other things well after the accession of George I in 1714. Tacit fudging of the same underlying question was also a feature of the negotiations which led in 1707 to the signing of Articles of ­Union between Scotland and England, thereby effectively bringing into being the new political entity of Great Britain, adding sixteen ‘representative’ Scottish peers to the upper chamber of the new British parliament, abolishing the unicameral Scottish parliament, but maintaining the Scottish national church and legal system. Some form of Anglo-Scots merger had long been mooted, but there was little support on either side of the border for a union of laws.38 From the accession of James VI of Scotland as James I of England onwards, Scottish negotiators had resisted the notion of any subordination of Scots customary and civil law to English common law. Thus the eventual treaty of 1707 provided in Article XIX that no case arising in Scotland should be ‘cognoscible by the Court of Chancery, Queen’s Bench, Common Pleas or any other Court in Westminster Hall’ and that those courts ‘shall have no power to cognose, review or alter the acts or sentences of the judicatures in Scotland or stop execution of the same’.39 Yet of Scottish appeals to the House of Lords – which did not sit in Westminster Hall – not a word appears. In 1667 the House of Lords had refused to entertain an appeal from an English resident in Scotland, precisely because it involved the judgment of a Scottish court.40 But in 1707, just before the Articles of Union were accepted, a Lords’ committee decided against seeking an opinion from the judges on the implications of Article XIX for the appellate jurisdiction of the House. This may well have been because the peers wished to avoid any possibility of provoking or reviving dispute about the precise bounds of their judicial authority.41 The Scots commissioners, themselves evidently in two minds Oxford, 1927, pp. 58–71; E. Cruickshanks, Ashby v White: the Case of the Men of Aylesbury, in: C. Jones (ed.), Party and Management in Parliament, 1661–1784, Leicester, 1984, pp. 90–103. 38  See generally Brian P. Levack, The Formation of the British State. England, Scotland, and the Union, 1603–1707, Oxford, 1987. 39  A. Browning (ed.), English Historical Documents, 1660–1714, London, 1953, p. 686. 40  R. S. Tompson, Islands of Law: A Legal History of the British Isles, New York, 2000, p. 21. 41  A. J. Maclean, The 1707 Union: Scots Law and the House of Lords, in: Journal of Legal History, 4, 1984, pp. 70–72.



An ‘ordinary court of justice’?137

about ‘allowing appeals to the parliament of Great Britain’, left the matter to be determined by the Scots parliament, which in turn let the crucial article stand, despite concern that the Lords ‘will be absolutely ignorant of and Strangers to our Laws, and consequently incompetent judges’. Some contemporaries also maintained that the cost and difficulty of taking appeals to London would prove a major deterrent, and encourage the establishment of a new court of appeal in Edinburgh. A more prescient commentator, possibly the anti-unionist Andrew Fletcher of Saltoun, warned that the Lords would inevitably seek to expand their jurisdiction, thereby tending to undermine the autonomy and credibility of Scotland’s own courts: ‘when People know where they can reverse a Sentence of [Court of] Session, they will not be very solicitous what sentence the Session gives’.42 In the event, appeals from Scotland to the House of Lords did soon become a major activity, boosted by the Lords’ 1709 decision that once notice of appeal was served, ‘the Sentence or Decree so appealed against, ought not to be carried on into Execution by any Process whatsoever’.43 Early in 1711 a judge of the Edinburgh Court of Session noted an alarming increase in appeals ‘for remeid of Law to the British Parliament … they are turned more frequent and numerous since the Union than they were before, tho’ access now is both more difficult and expensive than the discussing them before our own parliament were’. Lord Fountainhall believed that appellants often aimed ‘To concuss the victor to a composition, rather than undertake a tedious uncertain journey to London’; they also benefitted from the fact that ‘so soon as it is tabled in the house of Peers, all execution is stopt, whereas with us they were not suspensive of the sentence …’ Twelve months later he observed that appeals ‘increase every year, to the great impoverishing and detriment of this nation’.44 In the two years 1712–14, of 58 appeals cases and writs of error heard by the House of Lords, no fewer than 18 came from Scotland; England and Wales, with a population then perhaps four to five times as large, contributed only 30 suits over the same period. While various problems of definition and evidence complicate any attempt to quantify the Lords’ appellate jurisdiction, a series of decennial sample counts compiled by Henry Horwitz suggests that by the early 1720s the numbers of Scottish 42  J. D. Ford, The Legal Provisions in the Act of Union, in: Cambridge Law Journal, 66, 2007, pp. 124–28. K. Bowie, Scottish Public Opinion and the Anglo-Scottish Union, 1699–1707, London, 2007, pp. 93, 104, 111. 43  Lords Journals, vol. 17, p. 709, quoted in H. Horwitz, The English, the Scots and the Appellate Jurisdiction of the House of Lords, 1660–1800 (unpublished paper); I am grateful to Neil Jones for alerting me to this study and to Prof. Horwitz for his great kindness in allowing me to draw freely on it. 44  J. Lauder, The Decisions of the Lords of Council and Session from June 6th, 1678, to July 30th, 1712, vol. 2, Edinburgh, 1759–61, pp. 643, 734.

138

W. Prest

cases reaching the House exceeded those from England, while in the middle decades of the eighteenth century Scottish appeals lodged with the Lords easily outnumbered the total from England and Ireland combined.45 Unlike Scotland, the kingdom of Ireland remained until 1801 a distinct and subordinate political entity. Formally assimilated to English modes of law and government, Ireland had its own bi-cameral parliament, Dublinbased common-law courts and a local version of the Church of England, imposed as a colonial overlay, together with successive waves of protestant English and Scottish immigrants, on its largely Roman Catholic population. Law cases had been coming from Ireland to the House of Lords on writs of error since at least the 1660s, as they had before that from the court of King’s Bench in Ireland to the court of King’s Bench in London. But in the 1690s, after the military defeat of the exiled James II and his supporters, Ireland’s parliament met for the first time in thirty years, apart from the brief session of James’s ‘Patriot’ parliament in 1689. That predominantly Catholic body had voted to abolish the appellate jurisdiction of English courts in Ireland. The protestant Anglo-Irish peers sitting in Dublin in 1692 showed themselves scarcely less keen to assert this measure of national and institutional autonomy. Having formulated a set of rules for the hearing of appeals, the Irish Lords were ready to claim an exclusive jurisdiction over appeals from Irish courts, analogous to that exercised by their English counterparts over both equity jurisdictions and the courts of Westminster Hall. This issue proved irresistible to colonial nationalist-constitutional sensibilities.46 Three cases raised the ardour of Ireland’s judicial patriots. A very longrunning dispute between an English colonising company and the diocese of Derry was revived in 1694 by the pugnacious Bishop King, who brought a suit in the Irish Court of Chancery, then successfully appealed the outcome to his fellows in the Irish House of Lords. The bishop’s opponents thereupon petitioned the House of Lords in London, where the matter was taken up early in 1698, when the House appointed a committee to examine precedents 45  Horwitz, The English, the Scots and the Appellate Jurisdiction of the House of Lords, 1660–1800, pp. 18–19; these totals may be inflated by double counting of suits held over from one session to the next. More conservative figures have been provided by Professor Hoppit, who claims that ‘Scottish cases at Westminster increased significantly, from 8 per cent of appeals in 1708–9, to 22 per cent in 1740– 41 …’: J. Hoppit, Introduction, in: J. Hoppit (ed.), Parliaments, nations and identities in Britain and Ireland, 1660–1850, Manchester, 2003, p. 8. See also John Finlay, Scots Lawyers and House of Lords Appeals in Eighteenth-Century Britain, in: Journal of Legal History, 32, 2011, pp. 249–277. 46  Tompson, Islands of Law, pp. 46–8; R. F. Foster, Modern Ireland, 1600–1972, Harmondsworth, 1988, p. 145; D. W. Hayton, Whig Ministers and the Irish Question, 1714–1725, in: S. Taylor et al. (eds.), Hanoverian Britain and the Empire, Woodbridge, 1998, p. 50.



An ‘ordinary court of justice’?139

and wrote to Dublin seeking further information, even before the petitioners’ counsel was heard, ‘as to … Jurisdiction only’. In May 1698 the Lords resolved that no appeal lay from the Irish Chancery to their Irish counterparts, that the Irish Chancery ‘ought to proceed in the same cause, as if no such Appeal had been made’, and that the parties were at liberty ‘to pursue their proper Remedy, by way of Appeal to this House’. Bishop King responded by persuading the Irish House to arrest some officials who had refused him possession of the disputed premises, leading the English Lords to declare the bishop in contempt and demand that he be sent over in custody. While the matter petered out next session, with King’s alleged ill-health supposedly making him unfit to travel, the constitutionalist passions aroused on the Irish side gave a foretaste of what was to come.47 The second case involved another appeal to the Irish House of Lords, this time against a decree from the Chancery Court of Tipperary. On that appeal the earl and countess of Meath (an Irish title) gained possession of the disputed lands. An English peer then petitioned the English House of Lords, which in 1699 declared the judgment of the Irish House null and void, as coram non iudice, by a court without judicial authority. But when the Irish parliament resumed in 1703, the earl of Meath again applied successfully to his fellow peers, who not only voted to restore his possession, but condemned any appeals other than to their own jurisdiction as a betrayal of both the royal prerogative and the rights of Ireland’s parliament. Frantic efforts in Dublin by English administrators and the lord chancellor, assisted by the fortuitous death of the English peer concerned, succeeded in preventing either outright confrontation between the two legislatures or a crisis in the management of the Irish parliament. But the stakes had been raised, precedents set, and positions taken from which retreat would be very difficult.48 The final crisis was triggered by yet another long-running and complex Irish land dispute, involving estates forfeited by a Catholic landowner, the sister of their former owner (Hester Sherlock), the widowed mother of his children, and their lawyer-guardian (Maurice Annesley), quite possibly in corrupt collusion with the trustees for confiscated estates. In 1710–11 Mrs Sherlock twice sued Annesley in the Irish Court of Exchequer and lost on both occasions. Six years later she appealed both decrees to the Irish House of Lords; after some hesitation they decided to vary the Exchequer judg47  Lords Journals, vol. 16, pp. 189–90, 195, 216, 269, 292–3, 296–7, 383, 408, 415, 418–19, 426–7, 441, 459, 467–8, 479, 490, 492; I. Victory, The Making of the 1720 Declaratory Act, in: G. O’Brien (ed.), Parliament, Politics and People: Essays in Eighteenth-Century Irish History, Dublin, 1989, pp. 10–12; R. Burns, Irish Parliamentary Politics in the Eighteenth Century, Washington, 1989, pp. 34–39. 48  Burns, Irish Parliamentary Politics, pp. 39–41; Lords Journals, vol. 16, pp. 383, 432, 457–8; Victory, Making of the Declaratory Act, pp. 12–13.

140

W. Prest

ments in her favour. Meanwhile Annesley appealed to the British House, which encouraged him to raise the question of jurisdiction and then ordered Mrs Sherlock to respond to his appeal. She ignored this direction in favour of another petition to the Irish peers. The situation now escalated dramatically, with the judges of Ireland’s Exchequer Court forced to choose between obeying the British or the Irish Lords. By order of the latter Chief Baron Jeffrey Gilbert and his colleagues were arrested and imprisoned in the summer of 1719 for having put Annesley in possession, ‘contrary to law … executing a pretended order from another court contrary to the judgment of the high court of parliament …’. In moving for the arrests William King, former bishop of Derry and now archbishop of Dublin, termed Gilbert a betrayer of Ireland’s liberties, for whom imprisonment was not punishment enough.49 Notwithstanding such rhetoric, the crisis in Anglo-Irish government and legal relations precipitated by Annesley v Sherlock was settled with a very blunt legislative instrument. When appealed to directly by the Irish Lords, neither King George I nor his ministers showed any inclination to endorse their pretensions, whether or not so doing might have implied confirmation of the appellate jurisdiction of their British counterparts, at the risk of antagonising some members of the House of Commons. Instead the Lords adopted with little dissent a bill prepared by the judges, which in its final form affirmed both the absolute dependency and subordination of the kingdom of Ireland and ‘that the house of lords of Ireland have not, nor of right ought to have any jurisdiction to judge of, affirm or reverse any judgment, sentence, or decree, given or made in any court within the said kingdom …’. This measure also passed the Commons without difficulty, even if a number of speakers expressed concern at what one reportedly termed ‘the insatiable thirst of Power of the Lords of Great Britain’. A Tory lawyer who opposed the bill stated that the Irish House of Lords ‘seem’d to him to have as much right [to hear appeals] as the House of Lords of England; it was but of late years it had been comply’d with by the Commons here tho’ never confirm’d’. The last speaker in the debate explained that the reason he supported the bill was ‘bec[ause] the taking away this pretend Power of receiving appeals in Ireland may in time pave the way to deprive the Lords of Great Britain of it’.50 But such sentiments can have given little consolation to Irish patriots. 49  Victory, Making of the Declaratory Act, pp. 14–25; Burns, Irish Parliamentary Politics, pp. 70–97; M. S. Flaherty, The Empire Strikes Back: Annesley v Sherlock and the Triumph of Imperial Parliamentary Supremacy, in: Columbia Law Review, 87, 1987, pp. 593–622. M. Macnair, Gilbert, Sir Jeffray (1674–1726), Oxford Dictionary of National Biography, Oxford, 2004 (https://doi.org/10.1093/ref:odnb/10688). 50  Burns, Irish Parliamentary Politics, pp. 94–105; F. G. James, Lords of the Ascendancy: the Irish House of Lords and its Members, 1600–1800, Dublin, 1995, pp. 68–72; Statutes at Large, vol. 14, pp. 204–5 (6 Geo. I, c. 5); British Library, Ad-



An ‘ordinary court of justice’?141

For the rest of the century and beyond, even as Irish cases continued to be appealed to London, resentment engendered and symbolised by the 1720 Declaratory Act, associated with the ‘manifest violence and usurpation’ of ‘the judicature arrogated by the English House of Lords’, bedevilled Anglo-Irish relations.51 Over the hundred years which separated the passage of that legislation from the revival of the peers’ judicial role in 1621, the House of Lords had become what Blackstone would later term ‘the supreme court of judicature in the kingdom’, not just for England, but Scotland and Ireland as well.52 This development was part of a larger process of state building and imperial consolidation which tightened the grip of the London-based government on the rest of the British Isles. As we have seen, it was also significantly shaped by the internecine political conflict and social turbulence which characterised Britain’s century of revolution, not least the civil wars of the 1640s and their extended aftermath, including the revolution of 1688–89. So while occasionally invoking institutional traditions of considerable antiquity (as curia regis, royal council and high court of parliament), the judicial persona of the House of Lords between the Glorious Revolution and the accession of George III was actually in the main a relatively recent ad hoc construction, more the product of chance than design and in many respects a work still in progress. Before the 1670s most petitions seem to have been referred to and sometimes determined by a committee rather than the full House. Until 1693 the standing Committee for Petitions still evidently provided a preliminary filter, deciding which suits were to be placed before the House for hearing and which summarily dismissed; thereafter an ad hoc committee would be appointed occasionally to consider an appeal thought to present particular difficulties in terms of jurisdiction or procedure. Thus in 1707 the suit of the Countess of Radnor v Sir Richard Child was referred to a committee whose members demanded to see all related papers before hearing arguments from counsel on both sides as to ‘Whether the Cause therein mentioned be so varyed since the death of the Annuitant … [that it] will be according to the Rules of the House to proceed to a ruling upon the s[ai]d Petition’.53 These ‘Rules of the House’ were codified in its Standing Orders, a set of which ditional MS 47029 (Egmont Papers), fos. 23–25v: John Lord Perceval to Charles Dering, London, 5 March 1720. 51  A State Paper on Ireland, c. 1792, in: Historical Manuscripts Commission, Report on the Manuscripts of J. B. Fortescue, Esq., vol. 3, London, 1899, p. 541. 52  Commentaries, vol. 3, p. 56. 53  Horstman, Justices and Peers, p. 429; M. F. Bond, Guide to the Records of Parliament, London, 1971, pp. 108, 115–116. Parliamentary Archives, HL/PO/CO/1/7 (Minutes of Committees 24 Oct. 1704–5 Apr. 1710), p. 245, 18 Nov. 1707.

142

W. Prest

‘relating to the Bringing in and Proceeding on Writs of Errors and Appeals in the House of Lords’ was published as a broadsheet in 1734, ‘to be affixed on the Doors of this House, and Westminster Hall, to the end, all Persons that shall be therein concerned may the better take Notice of the same’. Dating back to 1661, but mostly of post-1689 vintage, the selected orders reflect recurrent concerns with parties seeking ‘to delay Justice, rather than to come to Determination of the Right of the Cause’, ‘frivolous appeals’ and the timely progression of suits. Hence there are provisions that appeals, responses and applications for hearings must be lodged within certain fixed periods of time; for recognizances covering possible payment of costs to be entered into by both parties (the penalty sum was raised to £200 in 1727); that no more than two counsel should be heard on either side; and that causes were to be determined in order on the three hearing days (from 1726 Monday, Wednesday and Friday, but earlier Tuesday, Thursday and Saturday).54 Other than the Standing Orders, there are few published sources of information on the operation of the Lords’ appellate jurisdiction, until the appearance well after our period of a practice manual self-published by a London-based Scots solicitor who specialised in Scottish appeals.55 Case notes or reports were almost equally scarce before the later eighteenth century. When the Tory lawyer-politician Bartholomew Shower published anonymously in 1698 a collection of cases from that decade, prefaced by a lively and doubtless provocative defence of ‘the Aristocratical part of our Government’, the printer was censured and a resolution added to Standing Orders that to print without leave ‘anything relating to the Proceedings of this House’ was a breach of privilege. A collection first published in 1730 does include a few older House of Lords cases, but the next printed report of recent cases only appeared nearly forty years later. This apparent information drought may have been eased by the still widespread practice of circulating case notes in manuscript, as also by compilations like the alphabetically-organized commonplace book on House of Lords procedure dating from the first decade of the eighteenth century, now in Cambridge University Library.56 News of significant proce54  F. W. Torrington (ed.), House of Lords Sessional Papers: Session 1734 to 1738 (Dobbs Ferry NY, 1978), p. 129; Lords Journals, vol. 20, pp. 454–5 (1720, noting Standing Orders of 1705 and 1715). 55  G. Urquhart, The Experienced Solicitor, in: Proceedings under the Appellant Jurisdiction of the Right Honourable The House of Lords on Appeals and Writs of Error, and the Jurisdiction exercised by the House in Matters of Peerage, London, 1773. 56  B. Shower, Cases in Parliament Resolved and Adjudged, upon Petitions and Writs of Error, London, 1698; Lords Journals, vol. 16, p. 391; [Anon.], Modern Cases in Law and Equity … in two Parts … to which are added, some special cases in appeals, London, 1730, pp. 161, 167–172; Brown, Reports of Cases on Appeals and Writs of Error; CUL Ms Dd.14.19.



An ‘ordinary court of justice’?143

dural changes, such as the 1726 decision to accept appeals against the provisional or interlocutory orders as well as final decrees of the Scottish Court of Session, also doubtless spread by word of mouth across the relatively small networks of senior barristers and solicitors who took a special interest in House of Lords business.57 The printed broadsheet statements of case on behalf of appellants and respondents, signed by their counsel, which from the 1690s were prepared for circulation to the peers before each suit was heard, offered a further source of information, even if one primarily intended to brief lay judges rather than practitioners. Conclusion What are we to make of the institution which was the later Stuart and the early Hanoverian House of Lords acting as a central superior court of law? The fullest and most accomplished historical study to date concedes that the hearing of appeals from the Lord Chancellor sitting in Chancery by the Lord Chancellor presiding over the House of Lords has about it ‘a touch of Gilbert and Sullivan’.58 Our amusement or puzzlement or both was shared by at least some contemporaries. On 1 April 1720 Duncan Forbes, depute-advocate for Scotland and later Lord President of the Court of Session, who was then following an appeal in London, retailed to the Lord Justice Clerk in Edinburgh an incident that happened Friday last. One Monsieur Pleineouf, a foreign Minister was Brought into the House of Lords whilest a Cause was a trying to satisfy his Curiosity. Lord Sunderland Made up to him and asked how he liked the place? Pray says Pleineouf, who are these Gentlemen with Gowns and Bands at the Bar? Why says My Lord they are lawiers: And what are they a Doing? My Lord answered they were arguing a Cause. Pray My Lord Where are the judges? why says My Lord we the peers are the judges. Hela! Mon Dieu, Cries the Frenchman. You the judges! there is not one Lord in the House that Minds the Least Morsell of the Cause. You are all a talking to one another or to me. Its no matter for that Answers the peer. There are three or four Lords on the House who understand the Laws very weel, and give attention; and the house Always gives in to their opinion. Very weel says Pleineouf then You [and] the Rest of the Lords take it upon your Conscience and honour, Not that the Cause is just or Unjust. But that the Lords who listen are Good Lawiers and just judges. But pray My Lord, Do these Lawier Lords Never Differ in opinion? how 57  Bond, Guide, p. 114; Lords Journals, vol. 22, pp. 578–9, 582–3. On House of Lords practitioners, see D. Lemmings, Gentlemen and Barristers: the Inns of Court and the English Bar, 1680–1730, Oxford, 1990, pp. 141, 285 and Finlay, Scots Lawyers and House of Lords Appeals, pp. 249–77. 58  Stevens, Law and Politics, p. 9; the reference is presumably to Pooh-Bah, ‘The Lord-High-Everything-else’ in The Mikado.

144

W. Prest

does the House govern its self in a Case of that Kind? why say[s] my Lord – But here his Lordship was Luckily interrupted By somebody who had a word for his private Ear and so the Conversation Ended.59

This might look like a satirical fable, if not an April Fool’s joke. But while his name sounds too good to be true, M. Plein[e]oeuf appears to have been a real person, a Parisian financier and office-holder.60 Earlier letters in the same run of correspondence record Forbes’s frustrations with, inter alia, ‘the stupidity of the Gross of our Country Men [i. e. Scots representative peers] here who are not knaves’, and his being given ‘over to the spleen, as far as the Necessary fatigue of preparing the Cases will allow it to Get possession of me …’.61 So this anecdote and M. Pleinoeuf’s remarks possibly served both to crystallise and convey, as from one professional lawyer to another, some of Forbes’s exasperation with the supreme tribunal for Britain and Ireland. It is revealing that there is no mention in this exchange of the role of the common-law judges formally attendant on the House as ‘assistants’, whose advice was sometimes sought, both on appeals and prospective legislation, although the vast majority of cases were decided without involving the judges. Of course none of those learned men could claim an expertise in Scots law. Nor were the peers under any collective or individual obligation to follow such formal advice as they did request; although they may usually to have done so, there were some striking exceptions.62 Indeed the general attitude of the House to the judges of Westminster Hall was not notably deferential, especially at the beginning of our period. Thus in the 1690s several formal rebukes were administered to the assembled judiciary for their ‘great Negligence’ in daily attendance on the peers, while Chief Justice of King’s Bench Sir John Holt was summoned in 1697 by the Lords Committee of Privileges to justify a decision of his court made five years before (at which he baulked, asserting that ‘I am not in any way to be arraigned for what I do judicially’). The judges’ collective refusal in 1707 to answer a question posed by a Lords’ committee, on the grounds that the issue was likely to come before them in a judicial way, evoked a resolution 59  Jones/Holmes (eds.), London Diaries of William Nicolson, p. 103, quoting National Records of Scotland GD124/15/1197/33, Duncan Forbes to James Erskine, Lord Grange, 1 April 1720 (punctuation and capitalisation modified). 60  W. Cooke Taylor, Memoirs of the House of Orleans, including sketches and anecdotes of the most distinguished characters in France during the Seventeenth and Eighteenth Centuries, London, 1850, p. 335; grateful thanks to Prof. Jean Fornasiero for this reference. 61  National Records of Scotland, GD124/15/197/6–7: Duncan Forbes to James Erskine, London, 23 and 28 Jan. 1720: I owe these references and much other assistance to the kindness of Dr Clyve Jones. 62  H. T. Gómez-Arostegui, Copyright at Common Law in 1774, in: Connecticut Law Review, 47, 2014, p. 37 (a valuable discussion of House of Lords procedure). Cf. Stevens, Law and Politics, pp. 11–12.



An ‘ordinary court of justice’?145

to consider the matter further which was only checked by parliament’s prorogation the following day.63 So how did such an oddity come to be regarded – if perhaps not until the later eighteenth century, so far as some English lawyers were concerned – as ‘a regular and ordinary court of justice’?64 The growth and continued existence of the appellate functions of the House of Lords obviously reflected a demand from litigants seeking to delay or reverse previous unpalatable judicial outcomes. The House was much better able to provide this ultimate in forum shopping after 1688, when lengthy annual sittings of parliament became the norm. The early eighteenth century also saw the extent of its jurisdiction (especially in relation to Scotland and Ireland) more definitively established and some further development of its internal procedures for handling appeals. Their judicial role assumed a greater salience in the eyes of the peers themselves, as the Lower House continued to tighten its grip on financial matters: as early as 1640 Fulke Greville Lord Brooke had noted that ‘Judicature [is] proper to us; subsidies to them’.65 But why should litigants have chosen to risk their fortunes in this oddly constituted forum, legislature and law court combined? No doubt some would have been able and willing to follow any avenue which might possibly bring them victory and defeat their opponents; an inveterate propensity for litigation continued to possess some sectors of the landed elite, not least on Britain’s Celtic fringe. Despite lingering memories of how justice had been subverted by a pliable judiciary under the later Stuarts, and the scandal of Lord Chancellor Macclesfield’s impeachment for corruption in 1725, the public standing of English judges did gradually improve over the course of the eighteenth century. Yet in 1734 James Erskine, Lord Grange (to whom Duncan Forbes had sent the tale of M. Pleineouf) professed to believe that there was more chance of obtaining justice from the Lords in London than Scotland’s Court of Session, because ‘A judicatory so illustrious must take care at least of their reputation …’. (Later in the century another Scots advocate claimed that the arbitrary jurisdiction of the Court of Session helped make House of Lords appeals more acceptable to his fellow-countrymen.)66 Given 63  Lords Journals, vol. 14, pp. 342, 558, 662; vol. 15, pp. 307, 363, 364, 439; vol. 16, pp. 210, 326; T. B. Howell (ed.), A Complete Collection of State Trials, London, 1809–28, vol. 12., p. 1181; D. Ogg, England in the Reigns of James II and William III, Oxford 1957, pp. 493–5. 64  F. Pollock, quoted in Stevens, Law and Politics, pp. 10–11, fn. 27. 65  E. S. Cope/W. H. Coates (eds.), Proceedings of the Short Parliament of 1640, Camden Fourth Series, vol. 19, 1977, p. 88. 66  W. Prest, Judicial Corruption in Early Modern England, in: Past and Present, 133, 1991, pp. 67–95; Historical Manuscripts Commission, Report on the Manuscripts of … Lord Polworth …, vol. 5, ed. by H. Paton, London, 1961, pp. 95–6.

146

W. Prest

the at best uneven public image of lawyers and the courts generally, the aristocratic, lay, non-professional character of the House of Lords as a tribunal may have been the strongest drawcard for the relatively small and largely well-to-do litigants who provided its client base. During the two decades 1720–1739 just over 700 recognizances were registered by parties to equity and writ of error appeals before the House of Lords (478 in the 1720s, 223 in the 1730s). By way of comparison, in the two years 1720 and 1721 alone, 3453 bills were entered in the English Court of Chancery, while over 2000 advanced cases were proceeding in the court of King’s Bench during the year 1720.67 In other words, the Lords’ appellate clientele was tiny, both in absolute and relative terms. We do not yet posses a detailed quantitative analysis of its socio-economic status through the course of the eighteenth century. But there is no reason to doubt that as an appeal court the Lords remained ‘little frequented by the poorer citizen’.68 It was indeed a peoples’ court, of a sort, for a relatively select body of people. Not that the lawyers had reason to feel excluded; on the contrary, in an age which celebrated aristocratic values and leadership, it would be surprising if advocates, barristers and solicitors did not occasionally bask in the reflected glory of their forensic association with Great Britain’s lords spiritual and temporal. Bibliography Annesley, A., The Privileges of the House of Lords and Commons Argued, London, 1702. Anon., ‘A State Paper on Ireland (c. 1792)’, in: Historical Manuscripts Commission, Report on the Manuscripts of J. B. Fortescue, Esq., Vol. III, London, 1899. Anon., Modern Cases in Law and Equity … in two Parts … to which are added, some special cases in appeals, London, 1730. Atkyns, R., The Lord Chief Baron Atkyns Speech to Sir William Ashurst, London, 1693. Atkyns, R., An Enquiry into the Jurisdiction of the Chancery in Causes of Equity, London, 1695. Atkyns, R., A Treatise of the True and Ancient Jurisdiction of the House of Peers, London, 1699.

67  Parliamentary Archives, HL/PO/JU/9/5–6; C. W. Brooks, Lawyers, Litigation and English Society since 1450, London, 1998, pp. 30–31. 68  M. F. Bond, Introduction, House of Lords Manuscripts, vol. 9 (New Series), London, 1949, p. xxviii. Loft emphasises the ‘middling’ status of parties to appeals heard by the Lords between 1685–1720; this may be largely a matter of definition: Peers, Parliament and Power, pp. 76–80.



An ‘ordinary court of justice’?147

Baker, J. H., ‘The superior courts in England, 1450–1800’, in: Diestelkamp, B. (ed.), Oberste Gerichtsbarkeit und Zentrale Gewalt im Europa der Frühen Neuzeit, Cologne, 1996, 73–111. Baker, J. H., An Introduction to English Legal History, London, 2002. Baker, J. H., The Oxford History of the Laws of England, Vol. VI: 1483–1558, Oxford, 2003. Beckett, J. V./Jones, C., A Pillar of the Constitution, London, 1980. Bilder, M. S., ‘Salamanders and Sons of God: the Culture of Appeal in Early New England’, in: Tomlins, C. L./Mann, B. H. (eds.), The Many Legalities of Early America, Chapel Hill NC, 2001, 47–77. Blom-Cooper, L./Dickson, B./Drewry, G., The Judicial House of Lords, 1876–2009, Oxford, 2009. Bond, M. F., Introduction, House of Lords Manuscripts, Vol. IX (New Series), London, 1949. Bond, M. F., Guide to the Records of Parliament, London, 1971. Bowie, K., Scottish Public Opinion and the Anglo-Scottish Union, 1699–1707, London, 2007. Brooks, C. W., Lawyers, Litigation and English Society since 1450, London, 1998. Brown, J., Reports of Cases upon Appeals and Writs of Error, in the High Court of Parliament, London, 1779. Browning, A. (ed.), English Historical Documents, 1660–1714, London, 1953. Burns, R., Irish Parliamentary Politics in the Eighteenth Century, Washington, 1989. Cannon, J., Aristocratic century: the peerage of eighteenth-century England, Cambridge, 1984. Cooke Taylor, W., Memoirs of the House of Orleans, including sketches and anecdotes of the most distinguished characters in France during the Seventeenth and Eighteenth Centuries, London, 1850. Cope, E. S./Coates, W. H. (eds.), Proceedings of the Short Parliament of 1640, Camden Fourth Series, Vol. 19, London, 1977. Crawford, P. M., Denzil Holles, 1598–1680, London, 1979. Cromartie, A., Sir Matthew Hale, 1609–1676, Cambridge, 1993. Cruickshanks, E., ‘Ashby v White: the Case of the Men of Aylesbury’, in: Jones, C. (ed.), Party and Management in Parliament, 1661–1784, Leicester, 1984, 90–103. Eagles, R., ‘Geoffrey Holmes and the House of Lords Reconsidered’, in: Parliamentary History, Vol. 28(1), 2009, 15–26. Elsynge, H., Of the Judicature in Parliaments, London, 1681. Finlay, J., ‘Scots Lawyers and House of Lords Appeals in Eighteenth-Century Britain’, Journal of Legal History, Vol. 32(3), 2011, 249–277.

148

W. Prest

Flaherty, M. S., ‘The Empire Strikes Back: Annesley v Sherlock and the Triumph of Imperial Parliamentary Supremacy’, Columbia Law Review, Vol. 87(3), 1987, 593–622. Ford, J. D., ‘The Legal Provisions in the Act of Union’, Cambridge Law Journal, Vol. 66(1), 2007, 106–141. Foster, E., The Painful Labour of Mr Elsynge, Philadelphia, 1972. Foster, E. R., The House of Lords, 1603–1649: Structure, Procedure, and the Nature of its Business, Chapel Hill NC, 1983. Foster, R. F., Modern Ireland, 1600–1972, Harmondsworth, 1988. Gómez-Arostegui, H. T., ‘Copyright at Common Law in 1774’, Connecticut Law Review, Vol. 47(1), 2014, 1–57. Hale, M., The Jurisdiction of the Lords House or Parliament considered according to Ancient Records, London, 1797. Hart, J. S., Justice upon Petition: The House of Lords and the Reformation of Justice, 1621–1675, London, 1991. Hayton, D. W., ‘Whig Ministers and the Irish Question, 1714–1725’, in: Taylor, S. et al. (eds.), Hanoverian Britain and the Empire, Woodbridge, 1998, 37–64. Holdsworth, W. S., A History of English Law, London, 1903–1966. Holles, D., The Grand Question Concerning the Judicature of the House of Peers, London, 1669. Hoppit, J., ‘Introduction’, in: Hoppit, J. (ed.), Parliaments, nations and identities in Britain and Ireland, 1660–1850, Manchester, 2003, 1–14. Horstman, A., Justice and Peers: the Judicial Activities of the Seventeenth-Century House of Lords, PhD thesis, University of California at Berkeley, 1977. Horwitz, H., Parliament, Policy and Politics in the reign of William III, Manchester, 1977. Howell, T. B. (ed.), A Complete Collection of State Trials, London, 1809–1828. James, F. G., Lords of the Ascendancy: the Irish House of Lords and its Members, 1600–1800, Dublin, 1995. Johnston, D. J. (ed.), The Manuscripts of the House of Lords, Vol. XII (New Series), 1714–1718, London, 1977. Jones, C., ‘Seating Problems of the House of Lords in the early Eighteenth Century: the Evidence of the Manuscript Minutes’, Bulletin of the Institute of Historical Research, Vol. 51, 1978, 132–145. Jones, C. (ed.), A Pillar of the Constitution: the House of Lords in British politics, 1640–1784, London, 1989. Jones, C./Holmes, G. (eds.), The London Diaries of William Nicolson Bishop of Carlisle, 1702–1718, Oxford, 1985.



An ‘ordinary court of justice’?149

Jones, D. L., ‘The Judicial Role of the House of Lords Before 1870’, in: BlomCooper, L./Dickson, B./Drewry, G., The Judicial House of Lords, 1876–2009, Oxford, 2009, 3–12. Lauder, J., The Decisions of the Lords of Council and Session from June 6th, 1678, to July 30th, 1712, Edinburgh, 1759–1761. Lemmings, D., Gentlemen and Barristers: the Inns of Court and the English Bar, 1680–1730, Oxford, 1990. Levack, B. P., The Formation of the British State. England, Scotland, and the Union, 1603–1707, Oxford, 1987. Lilburne, J., The Freemans Freedome vindicated, London, 1646. Loft, P., Peers, Parliament and Power under the Revolution Constitution, 1685–1720, PhD thesis, University College London, 2015. Maclean, A. J., ‘The 1707 Union: Scots Law and the House of Lords’, Journal of Legal History, Vol. 4(3), 1984, 57–75. Macnair, M., ‘Gilbert, Sir Jeffray (1674–1726)’, in: Oxford Dictionary of National Biography, Oxford, 2004, https://doi.org/10.1093/ref:odnb/10688. Merryman, J. H., The Civil Law Tradition, Palo Alto CA, 1969. Notestein, W./Relf, F. H./Simpson, H. (eds), Commons Debates, 1621, New Haven CT, 1935. Ogg, D., England in the Reigns of James II and William III, Oxford, 1957. Paley, R./Seaward, P. (eds.), Honour, Interest and Power: an Illustrated History of the House of Lords, 1660–1715, London, 2010. Paton, H. (ed.), Historical Manuscripts Commission, Report on the Manuscripts of … Lord Polworth …, Vol. V, London, 1961. Peck, L. L., Court Patronage and Corruption in Early Stuart England, Boston MA, 1990. Pike, L. O., A Constitutional History of the House of Lords, London, 1890. Prest, W., ‘Judicial Corruption in Early Modern England’, Past and Present, No. 133, 1991, 67–95. Prynne, W., A Plea for the Lords and the House of Peers, London, 1658. Rudolph, J., Common Law and Enlightenment in England, 1689–1750, Woodbridge, 2013. Russell, C., Parliaments and English Politics, 1621–1629, Oxford, 1979. Sainty, J. C., The Judges of England 1272–1990, London, 1993. Scott, D., ‘Bourchier, Sir John (c. 1595–1660)’, in: Oxford Dictionary of National Bio­graphy, Oxford, 2004, https://doi.org/10.1093/ref:odnb/2991. Selden, J., The Privileges of the Baronage of England when they sit in Parliament, London, 1689.

150

W. Prest

Shower, B., Cases in Parliament Resolved and Adjudged, upon Petitions and Writs of Error, London, 1698. Stevens, R., Law and Politics: the House of Lords as a Judicial Body, 1800–1976, London, 1979. Swatland, A., The House of Lords in the Reign of Charles II, Cambridge, 1996. Tanner, J. R., Constitutional Documents of the Reign of James I, 1603–1625, Cambridge, 1930. Tompson, R. S., Islands of Law: A Legal History of the British Isles, New York, 2000. Torrington, F. W. (ed.), House of Lords Sessional Papers: Session 1734 to 1738, Dobbs Ferry NY, 1978. Turberville, A. S., The House of Lords in the Eighteenth Century, Oxford, 1927. Urquhart, G., The Experienced Solicitor, in Proceedings under the Appellant Jurisdiction of the Right Honourable The House of Lords on Appeals and Writs of Error, and the Jurisdiction exercised by the House in Matters of Peerage, London, 1773. Van Caenegem, R. C., Judges, Legislators and Professors: Chapters in European Legal History, Cambridge, 1987. Victory, I., ‘The Making of the 1720 Declaratory Act’, in: O’Brien, G. (ed.), Parliament, Politics and People: Essays in Eighteenth-Century Irish History, Dublin, 1989, 8–21. Williams, E. N., The Eighteenth Century Constitution, 1688–1815, Cambridge, 1960. Woodhouse, A. S. P., Puritanism and Liberty, Chicago, 1951.

A. M. GODFREY

The College of Justice, Court of Session and Privy Council in sixteenth century Scotland, 1532–1603 Introduction Scotland provides a sharply defined case-study of the most pronounced type of jurisdictional change within a European state to be found in the early modern period. The most significant elements of this change occurred between the 1460s and the 1560s, and fundamentally altered the jurisdictional structure of the kingdom. As a consequence, not only the legal order itself but over time the wider role of the courts in resolving disputes in Scotland was radically affected. There are two main aspects to this late medieval jurisdictional change in Scotland, both of which are instances of much wider European developments. First, there was an intensive process of centralisation of civil jurisdiction, resulting in the birth of a new central court in the early sixteenth century known as the Session (or Court of Session). This derived its jurisdiction from the medieval King’s Council and the judicial sessions which had become a feature of council business by the late fifteenth century. The Session became permanently established in a new form in 1532 as the College of Justice (though still being referred to in familiar terms as the Session).1 Secondly, the mid-sixteenth century Scottish Reformation caused the collapse of the medieval division of jurisdiction between the civil and spiritual courts, following the abolition of the jurisdiction of the Pope in 1560 by the Scottish parliament. This resulted in the transfer of spiritual jurisdiction after 1560 to the secular legal order, and the creation of a new set of civil ‘commissary’ courts in 1564 exercising the jurisdiction formerly belonging to the church. This development created for the first time a comprehensive and unified civil jurisdiction, entailed by the subordination of the new commissary courts to the jurisdiction of the Session, and absorbing formerly spiritual categories of action into the scope of civil claims.2 The Ses1  A. M. Godfrey, Civil Justice in Renaissance Scotland: the Origins of a Central Court, Leiden, 2009, Chap. 3. 2  Thomas Green, The sources of early Scots consistorial law: reflections on law, authority and jurisdiction during the Scottish reformation, in: Mark Godfrey (ed.),

152

A. M. Godfrey

sion generally fits into a wider European pattern of new central courts arising from royal councils in the late medieval period.3 Its jurisdiction was technically conciliar, i. e. drawing from the authority of the King and his Council, like the English Chancery; it was collegiate in nature, consisting of a group of judges who constituted rather than merely presided over the court, and it developed a crucial appellate role over other courts, in the fashion of the Papal court of appeals, the Sacra Rota Romana; but its precise institutional form was newly created in 1532, in a similar way to the Reichskammergericht in 1495.4 A form of central court had featured in Scotland since the thirteenth century. This was the Scottish Parliament. Indeed, from the outset the medieval parliament of Scotland had possessed a judicial role.5 However, the significance of Parliament’s role as a central court from the end of the thirteenth century onwards was limited when compared to the Session by the sixteenth century. This was because in many ways the medieval legal order did not accord an important role to a central court. Its emphasis was on local judicial process and remedies, with disputes reduced to largely factual issues to be resolved by juries (known as assizes or inquests) and various fact-finding procedures.6 The scope for judicial appeals was therefore very limited in medieval legal process in Scotland, apart from alleging blatant factual errors or corruption on the part of jurors or judges.7 Such matters could be raised by a procedure of ‘falsing’ the doom (judgment) of a court, bringing it before a regional Justiciar’s court, or ultimately Parliament. Similarly, the scope of the judicial business Parliament could entertain at first instance was strictly limited by rules which required important categories of dispute to be pursued by local judicial process in order for a remedy to be given. This involved Law and Authority in British Legal History, 1200–1900, Cambridge, 2016, pp. 120– 139; David B. Smith, The Spiritual Jurisdiction, 1560–64, Records of the Scottish Church History Society, 25, 1995, pp. 1–18. For a recent overview of the Scottish Reformation see Jane A. Dawson, Scotland Re-formed, 1488–1587, Edinburgh, 2007, Chaps. 9–10. 3  B. Guenée, States and Rulers in Later Medieval Europe, Oxford, 1985, pp. 122, 125. 4  W. D. H. Sellar, A Historical Perspective, in: M. C. Meston/W. D. H. Sellar/Lord Cooper, The Scottish Legal Tradition, Edinburgh, 1991, pp. 29–64 at 45. 5  Godfrey, Civil Justice in Renaissance Scotland, Chap. 1; for further comment see also A. M. Godfrey, Parliament and the Law, in: K. M. Brown/A. R. Macdonald (eds.), The History of the Scottish Parliament. Volume 3: Parliament in Context, 1235–1707, Edinburgh, 2010, pp. 157–185. 6  Hector L. MacQueen, Common Law and Feudal Society in Medieval Scotland, Edinburgh, 1993, Chap. 4. The classic older study is H. McKechnie, Judicial Process upon Brieves, 23rd David Murray Lecture, Glasgow, 1956. 7  Godfrey, Civil Justice in Renaissance Scotland, pp. 21–23.



The College of Justice in sixteenth century Scotland

153

procedure by brieve and inquest, modelled on the Anglo-Norman procedure by writ and inquest evident in medieval England in the twelfth and thirteenth centuries. And in a manner perhaps typical of medieval assemblies generally, the Scottish Parliament met on such an infrequent and irregular basis that it could hardly have fulfilled any greater judicial function than this essentially residual and limited role demanded. In large measure, the kind of judicial process available for litigation of disputes in medieval Scotland was therefore based in the locality, with central jurisdiction afforded a remote and residual role. The limited role accorded to a central court in Scotland gradually began to change during the fifteenth century for reasons which are still not well understood. An apparent pressure for reform of central justice seems to suggest that litigants were dissatisfied with the local administration of justice. Instead they sought out central adjudication from Parliament and King’s Council, and consequently a need for new structures seems to have been recognised. R. K. Hannay drew the comparison with developments in England: ‘[t]he English parliament was compelled, owing to the number of petitions of law presented, to hand over a surplus to the royal council. This was what happened in Scotland also under James I.’8 The period 1426–1532 saw a series of varied judicial experiments, but all adopted a central model of jurisdiction, and this proved the key to unlocking the procedural and jurisdictional rigidity of the medieval common law, and to enabling the law to evolve and develop forms of remedy which could better meet the needs of litigants. Initially, between the 1420s and 1460s these expedients took the form of a specially created tribunal known as ‘the Session’ (introduced under James I in 1426, and organised differently from later expedients from the 1460s onwards). But over time the greatest practical advantages seemed to accrue from models which gave enhanced recognition to the judicial authority of the King’s Council. These advantages included the flexibility of the King’s Council in being able to expand the scope of its jurisdiction, and to provide additional remedies which complemented those available under the common law, and the legitimacy it possessed as a body counselling the King in person.9 The judicial role of the King’s Council began to supersede the old Session in the 1460s, offering a central forum for justice which supplemented the sittings of Parliament and the work of its auditorial committee for causes and complaints. By the later 1490s the popularity of seeking royal justice 8  R. K. Hannay, The Early History of the Scottish Signet, Edinburgh, 1936, p. 29. 9  A. Harding, Rights, Wrongs and Remedies in Late Medieval English and Scots Law, in: H. L. MacQueen (ed.), Miscellany Four, Stair Society, 49, Edinburgh, 2002, pp. 1–8; H. L. MacQueen, Some Notes on Wrang and Unlaw, in: H. L. MacQueen (ed.), Miscellany V, Stair Society, 52, Edinburgh, 2006, pp. 13–26.

154

A. M. Godfrey

from some form of central judicial tribunal directly associated with the King had led to more structured institutional arrangements becoming embedded and which could process this judicial business and associated litigation. And by this point it had become settled that the King’s Council was the most appropriate and convenient central body to attend to judicial business, as opposed to Parliament or other forms of ad hoc tribunal. It did so systematically through highly organised sittings of ‘the Session’ – the name for the older statutory tribunal which had died out in the 1460s seemingly being adopted to describe the King’s Council’s own extended diets devoted principally to judicial work. By the 1490s, following several decades of interaction between the auditorial judicial committees of Parliament and the King’s Council, Parliament effectively abandoned to the Council its role in adjudicating on routine civil litigation (though as Professor Ford demonstrates elsewhere in this volume, whilst adjudication ceased to be ‘a prominent part of parliament’s business’, it ‘did remain more frequent than is generally appreci­ ated’).10 The Session effectively superseded the judicial role of Parliament itself in such matters. The pace of institutional change particularly accelerated after 1488, with the ascent to the throne of James IV. His succession led to the reconciliation of factions in Parliament and Council which had tended to bifurcate the organisation of judicial business between distinct groups of auditors and lords sitting respectively in Parliament and Council under James III.11 In many ways the degree to which the Session had become established as a central judicial body during the reign of James IV (1488–1513) is demonstrated by the way it continued to operate successfully under adverse conditions in the minority of James V (1513–28), which witnessed a series of regency regimes, factionalism, and periods of political instability following the death of the King and many members of his Council at the Battle of Flodden in 1513.12 Despite these conditions, the provision of civil justice by the Session seems to have been one of the most constant and functional aspects of governance throughout these years.13 By the later 1520s an impetus to reform the Session as a branch of the council’s activity seems to have built up, and after James V took control in 1528 piecemeal measures gave way by the early 1530s to a grander scheme to recast the court and reconstitute it separately from the Council structure and within the new framework of a College of Justice, an institution established by an act of parliament of 1532 and confirmed by a papal bull of 1535. In formal terms the creation of the Colthe contribution of Ford in this volume. Civil Justice in Renaissance Scotland, p. 67. 12  Norman Macdougall, James IV, East Linton, 1997, p. 276. 13  Godfrey, Civil Justice in Renaissance Scotland, pp. 81, 89. 10  See

11  Godfrey,



The College of Justice in sixteenth century Scotland

155

lege of Justice marked the institutional separation of the ordinary judicial functions of the King’s Council from its previously undifferentiated political and administrative roles, and the vesting of this competence in the Session as a separate and autonomous court of law. The act of parliament expressed the ambition of making a lasting and fundamental change by narrating how ‘our soverane is maist desyrous to have ane permanent ordour of justice for the universale wele of all his liegis.’14 The College of Justice which resulted was a body of fifteen judges, including a president, seven secular judges and seven churchmen, or ‘half spiritual, half temporal’ as the statute put it. This was about half the size of the Session before 1532 when it was simply a sitting of the wider King’s Council. The judicial sittings of Council known as the ‘Session’ were thereby simply reconfigured from being a direct sitting of the King’s Council to being a meeting exclusively of the Senators of the College of Justice.15 The main practical implication was to exclude members of the King’s Council from sitting as judges in the Session unless they had been specifically admitted as Senators of the College of Justice. The number of senators was fixed by the statute, and vacancies in their number had to be filled through a process of formal nomination by the King and admission by the court. Lords of Council now had to be nominated and admitted as Lords of Session to participate in ordinary judicial business. At the same time, the institutional change in the exercise of judicial authority did not change the source of that authority. The jurisdictional basis of the legal authority of the Session in its new form as the College of Justice was still that of the King’s Council, as habitually exercised by the Lords of Session. Indeed, the parliamentary statute stated that its ‘processes, sentencis and decretis sall have the samin strenthe, force and effecte as the decretis of the lordis of sessioune had in all tymes bigane.’ The judges of the pre-1532 Session had expressly given their decrees in the name of ‘the Lords of Council’ and this formulation continued in the post-1532 Session. 1. Political context for the development of the court Older scholarship saw the foundation of the College of Justice as ‘no more than an excuse to mulct the Church.’16 It was seen as a pretext to legitimate a request by the King for a very substantial grant of clerical taxation from 14  The Records of the Parliaments of Scotland to 1707 (hereafter RPS), ed. by K. M. Brown et al., St Andrews, 2007–2016, 1532/6. 15  Godfrey, Civil Justice in Renaissance Scotland, pp. 144–152. 16  A. A.  M. Duncan, The Central Courts before 1532, in: G. C. H. Paton (ed.), Introduction to Scottish Legal History, Stair Society, 20, Edinburgh, 1958, pp. 321–340 at 336.

156

A. M. Godfrey

the Pope.17 Although this interpretation can no longer be accepted as providing an adequate explanation of the foundation of the College, it does draw attention to the relevance of the wider political and diplomatic context.18 This involved both the Scottish King’s desire to secure a foreign bride and dowry – Catherine de Medici was under discussion, for example, though later it was Madeleine de Valois who became James’ first wife in 1537 – as well as the King’s need for new revenues.19 At the same time the Papacy itself required support both in relation to the religious instability which was fuelling heresy and the Reformation, and the Ottoman military threat in the Mediterranean. Especially given the conduct of Henry VIII of England by the early 1530s, there was an attraction to cultivating James V of Scotland to encourage him to remain a loyal son of the church. Scottish diplomacy at the Papal court was engaged in all of these matters. But this immediate context simply provided diplomatic and fiscal opportunities which arose alongside the much longer-term developments in central justice in Scotland already described. These developments had been manifest in the immediate years before 1532 and some of the most important institutional changes implemented by the foundation of the College of Justice were prefigured by the piecemeal reforms already in evidence by the late 1520s and early 1530s. Even if we may doubt teleological arguments suggesting that these longer term developments reflected a conscious struggle by successive kings in Scotland to ‘impose their authority on the whole country and build up their central institutions,’20 there is no doubt that the period 1426 to 1532 does exemplify a consistent pattern of development towards the creation of a more effective central court with a superior jurisdiction in Scotland. The political context which arose once James V began his personal rule in 1528 after fifteen years of minority therefore provided favourable conditions for developments which had much deeper long-term roots. 2. Jurisdiction of the court As a result of liberating central justice from the constraints represented by the medieval parliamentary model of a central court, new forms of liability, procedure and remedy were able to develop in the Session. In consequence 17  Godfrey,

Civil Justice in Renaissance Scotland, pp. 118–122. Hannay, The College of Justice, Edinburgh, 1933, pp. 43–51. 19  Jamie Cameron, James V: The Personal Rule, 1528–1542, East Linton, 1998, p. 269; Leonie Freda, Catherine de Medici, London, 2003, p. 29; Dawson, Scotland Re-formed, 1488–1587, pp. 131–133. 20  Leslie J. Macfarlane, William Elphinstone and the Kingdom of Scotland, 1431–1514, Aberdeen, 1985, p. 93. For discussion see Godfrey, Civil Justice in Renaissance Scotland, p. 79. 18  R. K.



The College of Justice in sixteenth century Scotland

157

the fifteenth century is associated with the decline and ultimately the disappearance of older remedies developed by the medieval common law of Scotland in the thirteenth century. These included the main proprietary remedies in the form of the brieves of right, dissasine and mortancestor, which were writs containing commands from the King to local royal judges to hold a court, convene a jury and determine rights over land – such as who was the last lawful possessor, in the case of dissasine.21 Although procedure by brieve and inquest continued in other more routine matters, it had disappeared by the early sixteenth century in relation to these highly significant categories of legal claim about land. Instead new forms of liability such as error in infeftment (invalidity of title) or spuilzie (wrongful dispossession) arose within the newer procedural models associated with the Council.22 Such new forms of liability were typically associated by the later fifteenth century with procedure by summons before Council, as opposed to the older brieves which were always directed back to a royal judge exercising local jurisdiction as a sheriff or justiciar (or bailies in the burgh court of a town).23 Procedure by summons also allowed wide-ranging and distinctive remedies such as reduction (the invalidation of a legal process, transaction or document), to be applied to the ever increasing range of disputes which were brought before Council by the later fifteenth century.24 A remedy such as reduction was not available under the common law in the regular royal courts administering process by brieve. Therefore, the transition from the older limited parliamentary model of a central court to one based instead on the judicial role of the King’s Council involved a major shift of remedies within the legal system from the characteristically medieval procedure by brieve and inquest, originally modelled upon Anglo-Norman practices and writs, to remedies and procedure drawn more from the practice 21  MacQueen, Common Law and Feudal Society, Chaps. 5–7. The wider interpretation of the twelfth and thirteenth centuries advanced by MacQueen has been subjected to a wide-ranging critique in: Alice Taylor, The Shape of the State in Medieval Scotland, 1124–1290, Oxford, 2016. For discussion see Andrew R. C. Simpson, Foreword: common law and feudal society in scholarship since 1993, in: Hector L. MacQueen, Common Law and Feudal Society in Medieval Scotland, new Edinburgh Classic Edition, Edinburgh, 2016, pp. xxix-xlvi. For a useful overview see also Andrew R. C. Simpson, The Scottish Common Law: Origins and Development, c. 1124– 1500, in: Heikki Pihlajamäki/Markus Dubber/Mark Godfrey (eds.), The Oxford Handbook of European Legal History, Oxford, 2018, Chap. 20. 22  Harding, Rights, Wrongs and Remedies in Late Medieval English and Scots Law; Godfrey, Civil Justice in Renaissance Scotland, pp. 231–235, 331–333. 23  Godfrey, Civil Justice in Renaissance Scotland, p. 176; W. Croft Dickinson (ed.), Early Records of the Burgh of Aberdeen 1317, 1398–1407, Scottish History Society, 3rd Series, vol. 49, Edinburgh, 1957, p. cxv. 24  Godfrey, Civil Justice in Renaissance Scotland, pp. 273–275.

158

A. M. Godfrey

of the church courts and based on the court summons and Romano-canonical procedure. This development in the provision of remedies in turn required a reconceptualisation of the place of central jurisdiction, shifting from a residual and supplementary role to a general role which gained an increasingly supreme character within the legal order during the first three decades of the sixteenth century. Without a jurisdictional shift which acknowledged the authority of a central court, the relationship between the two sets of procedures and remedies would have been undefined, and the Session might otherwise have developed as a more limited supplementary jurisdiction like the English Chancery. In terms of practical implications of these developments, R. K. Hannay also observed that ‘[t]he growing association of the signet with the business of council and session created a distinct department of activity in the secretary’s office.’25 The developments in procedure therefore had an effect on institutional structures too, since the administration required to process summonses prompted the formation of new networks of activity within central governance. Initiation of actions before the King’s Council through a summons certified under the King’s signet provided the procedural basis for litigation in the Session. An advantage was that the form of a summons was not fixed, and a claim could be expressed flexibly in such a way as to give detailed articulation to its legal basis and the supporting factual narrative, and thus to more readily facilitate legal pleading and argument. The Romano-canonical form of court procedure permitted such legal arguments to be isolated for determination separately from any factual matters, and the proceedings of the Session were recorded in writing, and in the vernacular, not Latin as used in the medieval brieves. Deciding the legal basis for granting a remedy after hearing learned argument from trained procurators was also bound to prompt development in the substance and structure of the law. Indeed, this form of court process was radically more conducive to substantive legal development than permitted by procedure by brieve and inquest in the medieval administration of justice in Scotland. Consequently, the rights defined in charters and related documents concerning fundamental patrimonial interests such as land ownership were to become increasingly embedded during the sixteenth century in an ever more complex and sophisticated structure of legal understanding and written ‘practick’.26 This more systematic and doctrinal emphasis was one of the important factors which helped begin to generate a new tradition of commentary and legal writing by the second half of the sixteenth 25  Hannay,

Early History of the Scottish Signet, p. 29. W. Cairns, Historical Introduction, in: K. Reid/R. Zimmermann (eds.), A History of Private Law in Scotland, vol. 1, Oxford, 2000, pp. 14–184 at 71–73; A. Murray, Sinclair’s Practicks, in: A. Harding (ed.), Lawmaking and Lawmakers in British History, London, 1980, pp. 90–104. 26  John



The College of Justice in sixteenth century Scotland

159

century, reinforcing the need for educated ‘men of law’ to act as procurators, and stimulating the development of a lay legal profession in the sixteenth century. The discussion so far has identified a series of changes constituting a path of development in Scotland in the century after 1426 in which the medieval Parliament and the King’s Council ceased to exercise ordinary judicial functions. Instead the Session broke free of the King’s Council as an institution, and emerged by 1532 as a new central court which exercised what had been the ordinary jurisdiction of the King’s Council. Accompanying these developments was a dramatic underlying jurisdictional change. But until comparatively recently this underlying ‘jurisdictional shift’ was uncharted, and had not been identified as a subject of enquiry in its own right.27 Instead, interpretations of institutional innovations were offered with little attempt to relate them to changes in the underlying norms governing the competence and jurisdiction of the institutions in question.28 The assumption was that the nature of central jurisdiction itself could be treated as a relatively fixed category, whilst the institutional mechanisms for channelling it evolved over time. On this view, central jurisdiction passed unmodified from one judicial institution to another, except for those rare occasions when Parliament intervened to legislate differently, as happened in a significant statute passed in 1456.29 However, in the historiography it was not appreciated that a far deeper shift in the structure of jurisdiction might also be taking place of which the institutional changes were simply a more visible sign. This is an important question, since in the Scottish context institutional innovation could have only progressed to a certain point, within the established structure of jurisdiction, for the simple reason that the medieval common law did not grant the King’s Council or its judicial sittings as the Session an unconstrained superior jurisdiction, let alone explicit supreme judicial authority. Instead, the role of Council and Session was outside the ‘course’ of the common law, and seen as restricted to supplementing its procedures. Where there was a functional overlap between older forms of remedy and the newer ones granted by Council in the fifteenth century, such as in cases of dispossession, questions of competence, concurrency of remedies, and jurisdiction arose. Limits were imposed upon the jurisdiction of Council 27  The phrase ‘jurisdictional shift’ was coined by David Sellar: W. D. H. Sellar, The common law of Scotland and the common law of England, in: R. R. Davies (ed.), The British Isles, 1100–1500, Edinburgh, 1988, pp. 82–99 at 94. The origins of the more recent debate are summarised in Godfrey, Civil Justice in Renaissance Scotland, pp. 153–156, 277–288. 28  Jurisdiction is not treated systematically in the otherwise authoritative analysis in: A. A. M. Duncan, The central courts before 1532, pp. 321–340. 29  Godfrey, Civil Justice in Renaissance Scotland, p. 50.

160

A. M. Godfrey

and Session which could force those bodies to decline jurisdiction in given cases, though these ended up relating primarily to questions of title to land, referred to as ‘fee and heritage’. A declinatory exception could be pleaded in the Session against cases of fee and heritage, and if successful the case would be remitted to the ‘judge ordinary’, i. e. the appropriate court as prescribed by the common law and the determination of process by brieve and inquest. In contrast, cases of wrongful dispossession which avoided any underlying issue of title were competent to be heard by Council as a simple complaint of ‘spuilzie’ (spoliation). In this way a central tribunal with a generally extensive jurisdiction could nevertheless have a restricted competence. The jurisdictional significance of the institutional developments becomes a particular issue in 1532 when the College of Justice was expressly created by statute as a new institution, the parliamentary statute stating that the king ‘tendis to institute ane college of cunning and wise men’ with an explicit assertion of competence to ‘decyde apon all actiouns civile.’30 In the light of the earlier fifteenth-century restrictions, it is not obvious whether the statute envisaged a full or limited jurisdiction. The question which remains is how the College of Justice was able to align itself with existing structures of jurisdiction, as determined by the medieval common law, and yet assert a newly conceived supreme jurisdiction over the courts which applied that law. Recent research into the daily business of the Session and the process of litigation has provided evidence of the dynamics of possible underlying jurisdictional developments which a narrowly institutional approach has previously failed to reveal, moving away from a focus merely on structural rules as expressed in ordinances, statutes and organisational schemes, towards understanding the court processes and procedures which tested, challenged or simply presupposed the application of those rules. From this perspective, the role of litigation in the development of the Court of Session is potentially an extremely valuable focus of study for exploring how the Session became integrated into the traditional structures of jurisdiction, procedure and remedies of medieval Scots law. (a) Litigation and contested jurisdiction As noted already, the newer central tribunals of the fifteenth century which preceded the College of Justice all had a limited jurisdiction. This was because the structure of jurisdiction and remedies in the medieval common law depended upon the summoning of an inquest, assize or ‘jury’ drawn from the locality. Central bodies such as the King’s Council could not competently make judicial determinations in those types of case for which a remedy al30  RPS

1532/6.



The College of Justice in sixteenth century Scotland

161

ready existed under the common law, providing for a jury summoned upon delivery of a brieve to the judge of a locally-constituted court. Medieval Scots law had been especially concerned with protecting rights in land, and, as noted above, it was questions of title to land, of ownership, which the common law already protected through its standard remedies. Feudal title or ‘fee and heritage’, the heritable right to the freehold of land held of a superior, was excluded from the jurisdiction of the newer central tribunals in the fifteenth century, as well as being outside the normal remedies Parliament could grant.31 But this restriction on the jurisdiction of the central bodies did not survive. After the foundation of the College of Justice, the newly reconstituted Session soon claimed quite explicitly an exclusive jurisdiction to decide the very questions of title to land which had previously been outside its competence.32 Indeed, sixteenth-century central justice gained a generally unlimited civil jurisdiction apart from matters reserved to the spiritual jurisdiction of the church prior to the Reformation of 1560. How this change in the competence of the Session took place is difficult to trace but seems to have involved a shift from merely exercising a residual jurisdiction to consciously exercising and asserting supreme jurisdiction. This raises questions about whether the institutional developments managed to remain consistent with the jurisdictional limits imposed by the medieval common law, and how those limits came to be eventually abandoned or ignored. As noted above, the question of what jurisdiction the various central tribunals and courts exercised was until recently largely ignored, especially the transition from the limited jurisdiction of the fifteenth-century Parliament, King’s Council and Session to the full jurisdiction of the sixteenth century College of Justice. Examining litigation in the later fifteenth century and early sixteenth century reveals a richly detailed picture of the types of dispute coming before these tribunals. But it also reveals that central jurisdiction was being contested.33 The jurisdiction of the developing central courts was not free from challenge by litigants who continued to deny their competence to decide certain questions, most typically in relation to the category of title to land, i. e. fee and heritage. Whatever litigants might have thought about the merits of central jurisdiction in general, the evidence suggests that they might sometimes have reason to wish to prevent their own cases from 31  A. Borthwick, Montrose v Dundee and the jurisdiction of parliament and council over fee and heritage in the mid-fifteenth century, in: C. Jones (ed.), The Scots and Parliament, Edinburgh, 1996, pp. 33–53; Godfrey, Civil Justice in Renaissance Scotland, pp. 291–297. 32  Godfrey, Civil Justice in Renaissance Scotland, pp. 303–306; H. L. MacQueen, Jurisdiction in heritage and the lords of council and session after 1532, in: D. Sellar (ed.), Miscellany Two, Stair Society, 35, Edinburgh, 1984, pp. 61–85. 33  Sellar, A Historical Perspective, p. 44.

162

A. M. Godfrey

being determined in the Session, even if simply as a litigation or dispute management strategy. Procedurally such litigants were able to contest central jurisdiction, and by the later fifteenth century many were doing so.34 It is the evidence of those jurisdictional disputes which provides an invaluable insight into how the jurisdiction of the Session was able to overcome the limits imposed by the common law. (b) Jurisdiction and the College of Justice First of all, it should be understood that the statutes and ordinances relevant to the development of central justice in Scotland are largely silent on the question of ultimate jurisdiction, and make no express general declarations in unambiguous terms.35 This is why the study of how underlying norms of jurisdiction may have been articulated in litigation is so potentially valuable, although there is also the possibility that sixteenth-century contemporaries simply did not perceive this question of ultimate jurisdiction as particularly important. In any event, the very short parliamentary statute establishing the College of Justice stated that its purpose was ‘for the doing and administracioune of justice in all civile actiounes’, though, as noted above, it also went on to say that ‘processes, sentencis and decretis sall have the samin strenthe, force and effecte as the decretis of the lordis of sessioune had in all tymes bigane.’36 Apart from the phrase ‘all civile actiounes’, however, there is no express elaboration of its jurisdiction. A range of possible interpretations of the statute concerning its institutional and jurisdictional significance has been advanced: (i) it was institutionally important since it represented the foundation of the Court of Session, and the beginnings of a central court (the older tradition, ignoring the degree of development which had already occurred by 1500, and still present in some more recent accounts with an unconscious teleology); (ii) it was institutionally not particularly important since it had no significant effect on the Session, which had already developed as a function of the King’s Council well before 1532. This is the view which sees the foundation as no more than a pretext for raising a grant of papal taxation for the Scottish monarch – the revisionist view advocated in the seminal work of R. K. Hannay, and generally held by historians until quite recently37; (iii) it may not have been institutionally important, but it did have an effect by conferring a new and wider jurisdiction on the Court of 34  Godfrey,

Civil Justice in Renaissance Scotland, pp. 297–303. Civil Justice in Renaissance Scotland, pp. 156–159. 36  RPS 1532/6. 37  Hannay, College of Justice; Duncan, The Central Courts before 1532. A more balanced account which incorporates recent research is now available in Dawson, Scotland Re-formed, 1488–1587, pp. 125–127. 35  Godfrey,



The College of Justice in sixteenth century Scotland

163

Session in its new form as the College of Justice38; (iv) it was neither institutionally nor jurisdictionally important and did not have an immediate effect but it did have a consequential effect by legitimating the subsequent deliberate expansion of jurisdiction by the court in the ensuing decades;39 (v) it had both an important institutional and jurisdictional effect in formalising developments prior to 1532 which had created an unlimited jurisdiction, and in separating institutionally the judicial role of the King’s Council from its sittings for general administration, leading to a judicial Session functioning alongside a separate Privy Council.40 For reasons explained below, this last interpretation is the one best supported by the evidence, according to the most recent research. The only detailed study of litigation to date suggests that the events of 1532 saw the establishment of a central court as an autonomous institution with unlimited jurisdiction from that date. But the establishment of unlimited jurisdiction was not an effect of the statute in 1532, but rather it reflected the jurisdictional implications of developments in remedies during the preceding decades. Through the practice of litigation the scope of the remedies offered by Council had widened long before 1532 to give effect to a ‘jurisdictional shift’ which took the Session from the exercise of a residual to a supreme jurisdiction. On this view the Court of Session already possessed a full civil jurisdiction at the point it was established as the College of Justice in 1532. The main body of evidence which can shed light on these questions is the pleading of procedural exceptions against the jurisdiction of the Session before 1532 to hear a case, and – when jurisdiction was declined – the transfer, or ‘remitting’, of the case to the ‘judge ordinary, i. e. the appropriate lower court. The methodology of studying evidence of contested jurisdiction through the pleading of exceptions and the making of remits to the judge ordinary provides a sufficiently precise focus to conduct a search of the manuscript records in the decades between 1500 and 1532, which amount to over 10,000 pages, on top of the use of the published editions of records from 1478 to 1503.41 The period 1478–1503 is relatively easy to examine for such 38  Sellar,

p. 94.

A Historical Perspective, p. 44; Sellar, The Common Law of Scotland,

39  MacQueen, Common Law and Feudal Society, Chap. 8; MacQueen, Jurisdiction in Heritage and the Lords of Council and Session after 1532, pp. 61–85. 40  The foundations for this analysis have been developed in Godfrey, Civil Justice in Renaissance Scotland, esp. Chaps. 3, 6, and 7, and in: A. M. Godfrey, Jurisdiction in Heritage and the Foundation of the College of Justice in 1532, in: Hector L. MacQueen (ed.), Miscellany Four, Stair Society, 49, Edinburgh, 2002, pp. 9–36. 41  It is noted that there are 43 folio volumes containing the acts of the Lords of Council between 1478 and 1532 in Guide to the National Archives of Scotland, Stair Society, Supplementary Volume 3, Edinburgh, 1996, p. 104.

164

A. M. Godfrey

exceptions and protests, precisely because the council records for these years are published,42 though after 1503 the central judicial records of Scotland exist only in their original unindexed manuscript form, apart from two edited volumes covering particular years or types of business very selectively and covering a miniscule fraction of extant judicial business. At least up to 1500 it is clear from the published records of exceptions and protests concerning fee and heritage that the jurisdictional restriction was being applied.43 However, another significant feature is evident in the same period – a dramatic increase in the recording not of remits and declining of jurisdiction but of failed exceptions or protests which were rejected by the court. Before 1490 it seems not to have been common practice to record these at all. From 1492 they begin to appear in very small numbers, with only 6 recorded by 1500. But in the ten years from 1501 to 1510 there were as many as 60.44 It might seem therefore that from around the year 1500 many more litigants were contesting jurisdiction and raising formal challenges to the jurisdictional competence of the Session, though it was still generally rejecting such pleas and only remitting a few cases each year to the judge ordinary. Although the fact that jurisdiction over fee and heritage was contested is evident simply from the published editions of the record, this pattern was has only become apparent as a result of recent research involving a systematic study of the published and unpublished manuscript records of litigation.45 Establishing the pattern is important for the purpose of evaluating how the jurisdiction of the Session may have subsequently changed between 1500 and the foundation of the College of Justice in 1532. The records show that remitting to the judge ordinary continued after 1500, but became ever more exceptional, with only fifteen instances recorded up to 1513, and none after this point. Indeed, from 1513 to the foundation of the College of Justice in 1532 there is not a single example of the Session declining jurisdiction and remitting a case because of fee and heritage, nor in the immediate years fol42  T. Thomson (ed.), Acts of the Lords of Council in Civil Causes, Edinburgh, 1839; G. Neilson/H. Paton (eds.), Acts of the Lords of Council in Civil Causes. Vol. 2: 1496–1501, Edinburgh, 1918; A. B. Calderwood/A. L. Murray (eds.), Acts of the Lords of Council. Vol. 3: 1501–1503, Edinburgh, 1993; a narrower selection of ‘public’ business was also published in R. K. Hannay (ed.), Acts of the Lords of Council in Public Affairs, 1501–1554. Selections from the Acta Dominorum Concilii introductory to the Register of the Privy Council of Scotland, Edinburgh, 1932 (hereafter ADCP). 43  Godfrey, Civil Justice in Renaissance Scotland, pp. 282–285. 44  See Appendix 1 in Godfrey, Civil Justice in Renaissance Scotland, pp. 455– 458. 45  Godfrey, Civil Justice in Renaissance Scotland, pp. 275–291.



The College of Justice in sixteenth century Scotland

165

lowing 1532.46 Failed protests or exceptions continued to be recorded, but with no more than twelve over the entire 20-year period 1513–1532. This is particularly interesting because it shows that the practice of contesting the jurisdiction of the Session (and the King’s Council generally) could still be considered legally credible, but nevertheless could fall away almost entirely after 1513, whilst the practice of declining jurisdiction because of fee and heritage simply stopped. A complication is that the pleading of fee and heritage exceptions did continue after 1532. That might imply that the jurisdictional restriction was, as a matter of applicable law, still valid after 1532. However, the evidence of exceptions and remits suggests that even before 1532 the role of the King’s Council and Session seems to have been no longer constrained. This was not because it had ever expressly repudiated the jurisdictional rules of the medieval common law, but because it had constructively developed the scope of its remedies, in particular its power to invalidate legal processes and any resulting legal instruments, including charters, and other documents attesting legal title to land. The remedy of reduction, in particular, provided the basis for asserting the jurisdiction of the Session over other courts.47 The development of the remedies of the Session provided an alternative to the traditional procedures and remedies of the medieval common law and thus allowed litigants to have their property disputes determined centrally by a court exercising a superior jurisdiction. The development of the remedy of reduction provided a means to attack an opponent’s title to land which bypassed the traditional procedures requiring brieve and inquest and thus allowed litigants to have their property disputes determined by the Session. Litigants no longer summoned opponents in possessory actions such as wrongful occupation in cases of contested title, but instead they attacked the title directly itself, by seeking to have it reduced, and only then turned to matters of possession.48 The evidence of litigation seems to show that this happened well before 1532, meaning that it is possible to regard the Session as already possessing a full civil jurisdiction at the time it was constituted as the College of Justice in 1532. Even if the old jurisdictional restriction remained technically valid and unrepudiated, it had become obsolete. As far as we know it was never formally abandoned,49 in the sense of being over-ruled 46  Godfrey,

Civil Justice in Renaissance Scotland, p. 304. Godfrey, Civil Justice in Renaissance Scotland, Chap. 7. 48  Godfrey, Civil Justice in Renaissance Scotland, pp. 339–340. 49  Though, within a generation, accounts of jurisdiction simply described the new situation, ignoring any earlier jurisdictional restrictions, and without any acknowledgement of the reversal of the older jurisdictional rules which had come about: see P. G. B. McNeill (ed.), Discours particulier D’Escosse, 1559/60, in: W. D. H. Sellar (ed.), Miscellany Two, Stair Society, 35, Edinburgh, 1984, pp. 86–131 at 109, 113. 47  See

166

A. M. Godfrey

in a court decision or statute, but the procedural world of brieve and inquest in locally-constituted courts simply vanished in relation to the main types of property claim concerning fee and heritage, and was overtaken by the Romano-canonical procedure and remedies of the newer central court. It therefore appears that the ‘jurisdictional shift’ which empowered the new central court did not follow from an explicit revolution whereby the court overturned established jurisdictional rules. Rather it appears that the shift followed incrementally through the development of the scope of existing remedies. This must have owed as much to the desire of litigants to have their disputes resolved centrally, and the skill of their lawyers in structuring the litigation around the appropriate remedies, as to any desire by the judges of the court to expand their jurisdiction. 3. Relationship between central jurisdictions The King’s Council dated at least as far back as the thirteenth century as an institution, but at various times it is clear that select Lords of Council might act in concert as a smaller privy or ‘secret’ council to carry out executive or advisory functions more effectively. The operation of such a body is sometimes apparent from parliamentary statutes or ordinances of the council itself. The pattern of recording the business transacted by the King’s Council is not consistent, however, except for judicial business, which is routinely recorded in the extant records surviving from 1478 onwards. Non-judicial matters, however, do not necessarily leave any trace in the records, even during periods when a smaller executive privy council was apparently in operation. It seems that such executive or advisory matters were more likely to be recorded in the books of council when the king was inexperienced or unable to rule independently, such as during a minority. For example, the recording of such ‘public affairs’ is a feature of the books of council during the minority of James V between 1513 and 1528. And, despite the change of structure to central institutions brought about by the creation of the College of Justice in 1532, such non-judicial matters transacted in the residual King’s Council initially carried on being recorded in the same register as the judicial business transacted in the Session and College of Justice after 1532. So despite the formal separation of the Session in 1532, no separate register was initiated at this point to record judicial business. Surprising though this might seem, it was consistent with the underlying conception of the Session and the wider Council as both exercising (after 1532 as well as before) the residual authority and jurisdiction of Lords of Council. As Athol Murray has observed, ‘[a]lthough the Lords of Secret Council were concerned with ‘great matters,’ they were not a separate entity but part of the general body of Lords of Council, like the Lords of Session and Lords Auditors of



The College of Justice in sixteenth century Scotland

167

Exchequer.’50 Elsewhere, Dr Murray has also noted that ‘apparent confusion of the records of “council”, “secret council”, “session” and “exchequer” in James V’s reign reflects their administrative unity and the existence of an undifferentiated body of lords of council, some of whom received special commissions for certain administrative or judicial purposes.’51 The legacy of this administrative tradition, rooted in a general conception of a unitary, undifferentiated council, was that for more than a decade after 1532 no need was felt to differentiate the records of the Session and the residual King’s Council.52 One possible reason may have been that the King’s Council recorded relatively little of its political or administrative business, meaning that the books of council continued to be seen as primarily the record of judicial business in the Session. The use of a single register only finally changed in 1545, three years into the minority of Queen Mary, at a time when the recording of executive decisions in Council might be thought to have assumed greater prominence again, and a separate privy council register was established for the first time.53 The apparent introduction of a separate privy council register in 1545 has been seen as more than a change of administrative convenience and rather as an important sign of further institutional development. Indeed, Athol Murray has noted that ‘[t]he appearance of a separate privy council register in 1545 probably marks the point at which the secret council split off from its parent body, though traces of the old “Lords of Council” lingered for some time thereafter.’54 In other words, from at least 1545 a Privy Council was organised administratively so as to function separately from other manifestations of the older, undifferentiated King’s Council, just as in other ways the Session had been organised to function separately in 1532, and at an earlier stage still in the fifteenth century the Secretary’s office had become organised departmentally to facilitate the issuing of summonses under the signet on a regular basis.55 From 1545 therefore the Privy Council embarked upon 50  Guide to the National Archives of Scotland, p. 20. Although not expressly acknowledged in the text, this section of the guide was written by Dr Athol Murray. 51  Athol L. Murray, Exchequer, Council and Session, 1513–1542, in: Janet Hadley Williams (ed.), Stewart Style 1513–1542. Essays on the Court of James V, East Linton, 1996, pp. 97–107 at 108. 52  A. M. Godfrey, The Constitutional Accountability of the Court of Session in Scotland, 1532–1626, in: Ignacio Czeguhn/José Antonio/Antonio Sánchez Aranda (eds.), Control of Supreme Courts in Early Modern Europe, Berlin, 2018, pp. 122– 123. 53  Though for a recent analysis of the role of a privy council under James V, stressing an earlier path of development, see Amy Blakeway, The Privy Council of James V of Scotland, 1528–1542, in: Historical Journal, 59, 2016, pp. 23–44. 54  Guide to the National Archives of Scotland, p. 20. 55  Hannay, Early History of the Scottish Signet, p. 29.

168

A. M. Godfrey

keeping its own permanent records. It has been argued that this ‘left the “Lords of Council and Session” [i. e. the Session and College of Justice] as the sole remnant of the old undivided king’s council’ – from which it could be argued that the Session was the one part of central governance retaining the old undifferentiated council’s general jurisdiction.56 However, aside from such administrative developments after 1532, the creation of the College of Justice in 1532 also meant that for the first time there needed to be a way of distinguishing in formal terms the scope of the jurisdiction of the Privy Council from that of the Session and College of Justice. The register of the Privy Council after 1545 reveals very clearly that the Privy Council did retain an extensive judicial function alongside the judicial functions of the Session (just as we have noted Professor Ford’s demonstration of Parliament’s residual role in adjudication of civil litigation after 1532 as well). The Session may have possessed supreme civil jurisdiction, but it was not the only central judicial tribunal exercising jurisdiction to address complaints and to intervene in disputes. A new division of jurisdiction had to be clarified and developed. (a) The division of jurisdiction after 1532 How was the respective scope of the distinct jurisdictions of Session and Privy Council defined after the creation of the College of Justice?57 The starting point for such an enquiry is most obviously the legislation which established the College of Justice. However, this limited itself to a bald assertion of the competence of the College, and made no reference to how this should fit in with any other jurisdiction or judicial body. The only guide is the provision in the statute stating that the purpose of the College of Justice is for ‘the doing and administracioune of justice in all civile actiounes’, echoed later by the statement that its judges shall be authorised ‘to sitt and decyde apone all actiouns civile.’58 These apparently simple statements may appear to be no more than descriptive of what the Session already did, but arguably they carried two important normative implications which informed its development in the decades after 1532. First, the competence to decide in all civil actions could be taken to imply a judicial supremacy and overarching status attached to the Session and College of Justice which gave it a pre-eminence above other judicial bodies. In this sense there would be no civil action which lay beyond its competence, 56  Guide

to the National Archives of Scotland, p. 102. relationship with Parliament’s jurisdiction is addressed separately by Ford in this volume. 58  RPS 1532/6. 57  The



The College of Justice in sixteenth century Scotland

169

and no technical basis for any other civil court to resist its jurisdiction. Practice in the Session seems to support this view, showing that the Session’s competence extended to interference in even the most extensive form of ‘regality’ jurisdiction which had generally been excluded from the operation of judicial writs from the royal chancery under the medieval common law.59 For example, the case of Lindsay and Seton v Beaton of Creich demonstrates the Session advocating an action (i. e. transferring it) from a regality court in May 1533 by issuing a charge to the bailies of the Regality of St Andrews to desist and cease in all proceedings concerning a claim of feudal non-entry, and to ‘refer and remitt the same’ to the Session as a competent judge thereto.60 In a discussion of the rights of a regality to assert jurisdiction over persons by repledging (i. e. demanding transfer to itself) from another court in 1560, it could be stated that ‘always, if the said inhabitants of regality are convened and called upon before the said lords of session the said repledging or remit has no place.’61 This reflects the way that the pre-eminence accorded to the Session necessarily prompted a jurisdictional realignment for the sixteenth century, just as the evolution of jurisdiction in the medieval common law had prompted an earlier realignment which led to ‘the existence by the second half of the fourteenth century, if not before, of a clear hierarchy of courts in which the feudal jurisdictions of barony and regality had a place below that of the king for purposes of appeal.’62 The establishment of a new central jurisdiction in the form of the Session rendered that earlier late-medieval realignment inadequate to govern relations between judicial authorities in the sixteenth century, and generated a need for further adjustment. If clarification of the place in the jurisdictional hierarchy of the Session were needed by 1532, the legislation establishing the College of Justice had given it by adopting an all-inclusive category of ‘civil actions’ to define competence. Secondly, apart from this implication of a judicial supremacy, the scope of the judicial competence of the Session extended under the legislation to all 59  MacQueen,

Common Law and Feudal Society, p. 51. Records of Scotland (NRS hereafter) CS 6/2, f. 179–180, also cited in Godfrey, Civil Justice in Renaissance Scotland, p. 195. The feudal casualty of ‘nonentry’ was a particular area in which the Session was asserting an exclusive jurisdiction at this time: Godfrey, Civil Justice in Renaissance Scotland, pp. 251, 317. On regalities and central jurisdiction see Godfrey, Civil Justice in Renaissance Scotland, p. 266, and more generally P. G. B. McNeill, Introduction, in: McNeill (ed.), Discours particulier d’Escosse, at pp. 91–93; J. M. Webster/A. A.  M. Duncan (eds.), Regality of Dunfermline Court Book, 1531–1538, Dunfermline, 1953, pp. 29–33. For a contemporary statement about central jurisdiction and regalities from around 1560 see McNeill (ed.), Discours particulier D’Escosse, p. 113. 61  McNeill (ed.), Discours particulier d’Escosse, p. 113. 62  MacQueen, Common Law and Feudal Society in Medieval Scotland, p. 55. 60  National

170

A. M. Godfrey

civil actions, but not necessarily to other forms of judicial process. There was therefore a potential limitation, which could apply even when an action was civil but contained mixed elements touching upon categories of jurisdiction beyond the definition of a civil action. This would raise the question whether elements within an individual action might require to be differentiated and decided discretely in more than one forum before a final decision could be reached. It follows that it was only if an action was purely a civil action that it should be decided by the Session, as opposed to any alternative central body with judicial powers – such as the Privy Council. This would also appear to have meant that the Privy Council was not competent to hear any case which was purely a civil action. After 1532, therefore, questions arise as to how an understanding of the interplay of jurisdictional categories may have developed in order to determine the correct central judicial forum in which an action should be heard. Both of these implications in the legislation of 1532 materialise in the terms of subsequent juristic arguments during the sixteenth century, and are echoed again by an early seventeenth century account which neatly conveys the division in the scope of jurisdiction between the Session and the Privy Council. Further detailed analysis of the daily judicial business of both Session and Privy Council after 1532 would help establish the extent to which these implications were accepted from the start or developed over time, since secondary accounts are generally lacking, especially for the 1530s and 1540s. For the 1540s, Sinclair’s ‘Practicks’ (a set of judicial notes) records a submission in a case in 1543 that ‘albeit the admirall wes juge and mair in this cace, nochttheles the lordis of Counsall were also judge ordinaris to all civill actioun within the realme, be the first institutioun of the college of justice.’63 Clearly referencing the legislation of 1532, this recognised concurrent jurisdiction between two central jurisdictions in a case which qualified as a civil action. The only necessary basis for the jurisdiction of the Lords of Council (clearly referring here to the Session) was that the action was ‘civil.’ Subsequently, the ‘Discours particulier d’Escosse’ of 1560 does not discuss any other central jurisdiction apart from the Session, and therefore does not comment on the scope of Privy Council jurisdiction or what additional criteria in a civil action would have engaged it. Balfour’s Practicks, written around 1574–83, includes separate chapters entitled ‘Of the Kingis Secreit counsall and houshald’ and ‘Anent the college of justice, institutioun and judicatorie thairof’, but also contains no guidance, though assuming ‘the distinction be63  Lord Bothwell v Flemings (1543), case note 367, ‘Off the admirallis jurisdictioun and the lordis of Counsall in sea caussis’ in ‘Sinclair’s Practicks’, unpublished transcript by Dr Athol Murray, with additions by Professor Gero Dolezalek, based on MS Edinburgh University Library, Laing III 488a. The transcript is available at http:// home.uni-leipzig.de/jurarom/scotland/dat/sinclair.html.



The College of Justice in sixteenth century Scotland

171

tween and mutual exclusiveness of the court of session and privy council’ as a matter of underlying principle.64 With the early seventeenth century account referred to above, however, we are presented with a very clear picture. It explains in relation to the competence of the Session that: there is nothinge that may fall forth in suyte betwixte partie and partie (not beinge in the quallitie of Ryottes and oppressions the takinge order wherewith belongeth to the Secrett Counsell: neyther beinge of anie cryminall nature, whereunto the Justice is competent Judge) but they of the Session are Judges Competent thereto …65

Aside from the stated exceptions, therefore, the Session was generally competent to hear any civil action, such being by definition a suit ‘betwixte partie and partie.’66 Only two areas are stated as exceptions falling outside the category of civil actions competent in the Session. These are criminal justice on the one hand, and complaints of riot and oppression on the other. In the account in question it is the latter category which delineates what can properly be entertained by the Privy Council, though none of the accounts discussed establish whether sixteenth century contemporaries would have regarded this as having applied since the foundation of the College of Justice or whether it was only clarified subsequently, and if so when. Some inferences about the scope of the Session’s competence can therefore be drawn from the legislative framework of 1532, which in more fundamental ways also provided a lasting constitutional basis for regulating the operation of the Session within the College of Justice.67 The evidence of the early seventeenth century account discussed above would also seem to suggest longer-term continuity and consistency in assumptions about the normative framework of central jurisdiction for the remainder of the sixteenth century after 1532. However, understanding the way the scope of competence was recognised and interpreted in practice between 1532 and the early 1600s requires systematic study of the records of judicial decisions by the Session and Privy Council after 1532. Analysis of judicial business in the Privy Council in particular provides potential insights into the jurisdictional rela64  Peter G. B. McNeill (ed.), The Practicks of Sir James Balfour of Pittendreich, Stair Society, 21–22, Edinburgh, 1962–63, 21, pp. xlix-l, 13, 265. 65  J. D. Mackie/W. C. Dickinson (eds.), Relation of the Manner of Judicatores of Scotland, in: Scottish Historical Review, 1922, pp. 254–272 at 265. 66  A complete definition of a civil action may be narrower, Dr McNeill suggesting ‘between parties where there was a patrimonial interest in a very strict sense’: Peter G. B. McNeill, Introduction, The Practicks of Sir James Balfour of Pittendreich, pp. xlix-l; Peter G. B. McNeill, The Jurisdiction of the Scottish Privy Council, 1532– 1708, unpublished PhD thesis, University of Glasgow, 1960, p. 131, fn. 7. 67  Godfrey, The Constitutional Accountability of the Court of Session in Scotland, 1532–1626, pp. 134–141.

172

A. M. Godfrey

tionship between the Session and Privy Council during subsequent decades, since the Privy Council lacked the kind of express jurisdictional underpinning provided for the Session after 1532 by the legislation establishing the College of Justice. Correspondingly it exercised a residual jurisdiction whose limits were not legislatively defined but were implied by its ‘practick’ under the common law, and which required it to articulate in individual cases what fell within its competence and what did not fall within the competence of the Session. It was therefore more likely to articulate both the basis for hearing a claim as well as for declining jurisdiction and remitting an action to the Session. Litigation in the Privy Council is therefore an obvious potential source for expressions of jurisdictional principles, though a more detailed and systematic scrutiny of its judicial business lies beyond the scope of this chapter. But in terms of tracing the way an understanding of the interplay of jurisdictional categories may have developed in order to determine the correct central judicial forum in which an action should be heard, two potential arguments emerge from a survey of Privy Council judicial business between 1532 and 1603 which can at least be tentatively advanced here, and may provide a preliminary basis for understanding the respective judicial roles of the Session and Privy Council in the sixteenth century. The arguments relate to the operation of the Session: first, in terms of the concept of a ‘judge ordinary’; second, in terms of the category of ‘civil causes’. (b) The Session as Judge Ordinary First, there is evidence that the judges of the Session began to be characterised in the sixteenth century as ‘judges ordinar’ or at least became bracketed with the judge ordinary as a category which was contrasted with the jurisdiction of the Privy Council. The concept of the judge ordinary derived originally from the medieval canon law, in which the diocesan bishop was ‘the judicial ordinary, who had responsibility for doing justice to all those who were domiciled in his diocese.’68 It had developed a secular application in Scots law by the fifteenth century, and seems to have referred to a judicial office with a defined jurisdiction attaching under the common law.69 However, it has been established that during the fifteenth century ‘neither the sessions nor the king and his council were regarded as judges ordinary.’70 68  R. H. Helmholz, The Oxford History of the Laws of England. Volume I: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, Oxford, 2004, p. 182. See also pp. 213, 218, 219 for other remarks on the jurisdiction of an ‘ordinary’. 69  MacQueen, Common Law and Feudal Society in Medieval Scotland, pp. 217– 218; Godfrey, Civil Justice in Renaissance Scotland, p. 274. 70  MacQueen, Common Law and Feudal Society in Medieval Scotland, p. 218.



The College of Justice in sixteenth century Scotland

173

This changed in the sixteenth century in a way which was consistent with the new status attaching to the Session by 1532. The Session moved from possessing a form of extraordinary residual jurisdiction, with limited categories of competence, to exercising an ordinary jurisdiction, with a general competence. We have already noted one case from 1543 in which a claim to jurisdiction by the Session was advanced against that of the Admiral Court on the basis that ‘nochttheles the lordis of Counsall were also judge ordinaris to all civill actioun within the realme’ (emphasis added).71 In another manuscript version of the same source the submission is recorded that no other ‘ordinarie judges’ should be able to assert their jurisdiction against that of the Session and ‘repledge’ (i. e. assert jurisdiction to enforce the transfer of) a case from the Session ‘becaus the lordis ar judges ordinar in civill caussis to all the haill contrey.’72 This also discloses a new way of conceptualising the Session as possessing a general unqualified jurisdiction as judge ordinary for civil actions defined in relation to the kingdom as a whole by way of territorial extent – ‘the haill contrey.’ We do not know whether this was how the Lords of Session themselves conceptualised their jurisdiction, because in the particular case it is simply recorded that they found themselves judges competent. But the case does show the concept of the judge ordinary being applied to the Session soon after the foundation of the College of Justice little more than a decade earlier. Its potential to provide a conceptual basis for the supreme jurisdiction of the Session over other courts is clear. The basic idea of ‘ordinary’ jurisdiction, in this context was general competence over defined territory attaching to a recognised judicial office, whether this related to a particular administrative division such as a sheriffdom, or a burgh, or indeed the kingdom as a whole, such as would have been the case for the medieval justiciars on ayre, or ultimately the sixteenth-century Session itself. The idea of the bounds within which the judge or­dinary possessed jurisdiction being defined strictly territorially is neatly encapsulated in a submission made in a case in the Session involving the earl of Crawford in 1536, that ‘the sheriff is na juge ordinar tharto the said erle nor the landis quhar the said aitis grew lyis nocht within his 71  Lord

Bothwell v Flemings (1543), ‘Sinclair’s Practicks’, case note 367. in ‘Sinclair’s Practicks’, case note 367, as a ‘Supplement’ from an anonymous collection: NLS Adv. 25.4.11, nr. 529. For discussion of this manuscript and the section containing Sinclair’s ‘Practicks’ see Gero Dolezalek, Scotland under Jus Commune: Census of manuscripts of legal literature in Scotland, mainly between 1500 and 1660, vol. 2, Stair Society, 56, Edinburgh, 2010, pp. 310–311. Professor Dolezalek dates the MS to around 1600 but observes, on the basis of spellings and grammatical form, that the model MS from which this section was copied dates from sometime in the sixteenth century. 72  Reproduced

174

A. M. Godfrey

juris­diction.’73 Rights arising from claims of spiritual as well as temporal ordinary jurisdiction were substantial and could be the subject of exemption. In a case in 1538, for example, the Cistercian abbot of Balmerino submitted in the Session that he was ‘exemit fra all iuresdiction ordinar spirituale and temporale and imediatly subiectit to the juresdiction of our haly fader the paip and to the heid house of the said ordour and na uther.’74 Indeed, it was the jurisdiction of the spiritual judge ordinary which in practice was in issue most often in the Session in the 1530s, in a variety of contexts in which secular and ecclesiastical judicial process touched upon one another, requiring rulings on what was ‘civil and prophane’ and what was ‘spiritual’.75 By this time the Session no longer remitted cases of fee and heritage to the secular judge ordinary – the one area where at least until 1513 it had been in the habit of deferring to another secular court as the proper ‘judge ordinary’ and declining jurisdiction in consequence.76 It was perhaps only in cases of advocation to the Session, attempted repledging from it, or contesting its right to exclusive jurisdiction in very particular areas that the position of the local secular judge ordinary might still come into conflict with the Session after 1532.77 From that time the jurisdiction of the Session was relatively settled and its further development related primarily to asserting exclusive jurisdiction in certain areas.78 Generally it otherwise exercised concurrent jurisdiction unproblematically with the judge ordinary at a local level. Before the sixteenth century it seems clear that the Session would have been seen as outside the framework of ordinary jurisdiction. Indeed, this follows from the fact that until the fifteenth century the King’s Council had exercised very much an extraordinary jurisdiction which entertained actions only for limited categories of privileged litigants, such as foreigners, widows, the poor and churchmen, as well as for complaints against royal officials, or matters in which the King’s interests were at stake directly.79 A statute of 1487 referred in this regard to ‘acciouns pertenyng in speciale to our souveran lorde, acciouns and complaintis made be kirkmene, wedowis, orphanis and pupillis, acciouns of strangearis of uthir realmis and complaintis made apoune officiaris forfalt of executioune of thare office, or quhar the officiar is parti him self.’ The statute also listed the ‘justice, chaumer lane, 73  NRS

CS CS 75  Godfrey, 76  Godfrey, 77  Godfrey, 78  Godfrey, 79  Godfrey, 74  NRS

6/8, f. 76v (4 July 1536). 6/10, f. 1v–2r (27 March 1538). Civil Justice in Renaissance Scotland, Civil Justice in Renaissance Scotland, Civil Justice in Renaissance Scotland, Civil Justice in Renaissance Scotland, Civil Justice in Renaissance Scotland,

pp. 260–264. p. 304. pp. 144, 192–96, 214–217. p. 317. p. 45.



The College of Justice in sixteenth century Scotland

175

schireffis, barouns, provostis and baillies of borowis’ as examples of ‘the juge ordinaris’ in relation to ‘all civile acciounis, questionis ande plewis’ and contrasted this with ‘oure souveran lordis counsale.’80 Legislation in 1474 had likewise given voice to the contrast between ordinary jurisdiction and that of the King’s Council, at a time when the Council was only just beginning to be drawn into the course of ordinary litigation.81 It stated that generally ‘all personis that has complayntis persew to thair juge ordinar and wex not our souerane lorde nor his consale with na complayntis …’82 However, by the second half of the sixteenth century the terminology used in submissions made to the Privy Council also indicates that the Session could be bracketed alongside the judge ordinary, even though the old usage remained in evidence as well.83 In a case in 1564, for example, the Privy Council ‘remittis the decisioun of the said mater to the Lordis of Sessioun, or utheris ordinar jugeis.’84 In 1571 the Privy Council ordered the sheriff of Teviotdale to ‘use warning upoun’ the defenders in a case and ‘utherwayis to persew thame be ordour of law and justice befoir the Lordis of Sessioun or utheris thair jugeis ordinar.’85 The implication is that the Privy Council did not exercise the jurisdiction of a ‘judge ordinary’, and should therefore decline to exercise jurisdiction in such cases. By contrast, the Session was now to be treated like a judge ordinary. Ultimately this was one of the ways in which the central role which the Session was establishing for itself, even before the foundation of the College of Justice in 1532, came to be articulated during the course of the sixteenth century. By drawing on a recognised category of jurisdiction – the judge ordinary – it provided a secure conceptual basis for this role. (c) The category of civil causes The second argument which may help understand how the interplay of jurisdictional categories developed concerns the way the category of jurisdic80  RPS

1487/10/14. Civil Justice in Renaissance Scotland, p. 61. 82  RPS A1474/5/11. See R. K. Hannay, On the Antecedents of the College of Justice, in: The Book of the Old Edinburgh Club, 11, 1922, pp. 87–123 at 96–97. 83  In an article considered in parliament in 1567, for example, it was stated that ‘all complaintis first persew thair juge ordinar; and nane to be hard befoir the prive counsale or sessioun without refuise of justice be the ordinar or manifest iniquitie and delay in the proceding, sauffand onlie actionis propirlie appertening to thame’: RPS 1567/12/92. 84  The Register of the Privy Council of Scotland (hereafter RPC), 37 vols., ed. J. H. Burton et al., Edinburgh 1877–, i (1545–69), p. 284 (30 Sept 1564). 85  RPC, ii, 249 (1573). 81  Godfrey,

176

A. M. Godfrey

tion belonging to the Session and College of Justice came to be defined as ‘civil causes’, echoing the terms of the 1532 parliamentary statute discussed above, but shifting the application of the concept of a civil action away from its most typical pre-1532 context. This had been the divide between ‘spir­ itual’ actions and ones which were ‘civile and prophane’,86 though of course ‘civilie’ was equally a category to be contrasted with ‘criminalie’.87 Consequently it was civil actions which belonged to the Session, and which were not competent as such in the Privy Council. By 1561 this was certainly treated as established ‘practick’, it being argued in one case (albeit unsuccessfully on the facts) that the Privy Council was not a competent judge ‘becaus the samyn is civile, and thairfoir suld be remittit to the Lordis of Sessioun, to be decydit be thame as accordis of law, conforme to the dailie practik.’88 In 1586 it was expressly argued that ‘the said actioun is civile, to the discussing quhairof, or geving furth of letters aganis the same, the Lordis of Secreit Counsall ar nawayes jugeis competent, nor hes na pouer nor authoritie to that effect.’89 In another hearing in 1561 a procurator ‘allegit that the Lordis of Sessioun, be oure Soveranis predecessouris, wer appointit and ordanit supreme jugeis to discuss upoun all civile caussis, within this realme, and divers privilegis grantit to thame to that effect, ratifiit and assurit in Parliament; and sua in discussing of civile caussis thair is na juge above thame.’90 This view would reject any judicial role for the Privy Council in civil causes. It was when an action also concerned ‘[r]yottes and oppressions’ that it would be potentially triable in the Privy Council. But clearly actions which were otherwise simply civil actions could also contain an element relevant to ‘[r]yottes and oppressions’ which thereby engaged the Privy Council jurisdiction. Therefore, determining when an action was ‘civil’ would become the most important criterion for a decision that a case ought to be remitted from the Privy Council to the jurisdiction of the Session as judge ordinary. (d) The jurisdiction of the Privy Council Both changes which these arguments suggest followed from the division of jurisdiction which was implicit in the separation of the Session from the King’s Council in 1532, and reinforced by the development of the more distinct Privy Council jurisdiction from the 1540s. To assess the scope of the respective jurisdictions of Session and Privy Council in more detail it is nec86  Godfrey,

Civil Justice in Renaissance Scotland, pp. 260–264. p. 456 (28 July 1536). 88  RPC, i, p. 166 (29 October 1561). 89  RPC, iv, p. 90 (29 July 1586). 90  RPC, i, p. 167 (21 Oct 1561). 87  ADCP,



The College of Justice in sixteenth century Scotland

177

essary to outline the substance of the residual jurisdiction which the Privy Council retained after 1532. Perusal of the extant records from 1545 to 1707 reveals ‘the huge mass of judicial business which the council transacted.’91 But the Privy Council came to see itself as more than an ordinary court, describing itself by 1634 as ‘a pryme and soverance judicatorie, and the Lords thairof for thair honnour and integritie being intrusted be his Majestie with the governement and mannaging of the weightiest and most important effaires of the state.’92 But this still meant, as Peter McNeill put it in what remains the sole book-length study of the Scottish Privy Council, that the residual legal business of the council in hearing ‘the complayntis of pairtys’ and ‘causes and actiones betwixt subject and subject’ amounted to no more than an extraordinary equitable jurisdiction springing from the essential nature of the council as the prime organ of government, as the normal vehicle of the royal prerogative and as the guardian of the peace.93

Indeed, more often than not the Privy Council was primarily engaged in ‘adjudicating between competing jurisdictions and remitting causes to the appropriate forum.’94 Exceptions to this were ‘more apparent than real’ and arose from ‘pure riots or penal actions, in which the council had undoubted jurisdiction or they were emergency or incidental decisions, or judgments proceeding by consent or by statutory arbitration of the council.’95 McNeill concluded that ‘[t]he council was not an ordinary court of law deciding civil actions nor a criminal tribunal: it was an extraordinary court of justice dispensing remedies where the ordinary process of law was defective, non-existent or inappropriate.’96 In some ways the sixteenth-century Privy Council therefore occupied a similar place outside the ordinary course of civil justice to that which the King’s Council had occupied until the middle of the fifteenth century. McNeill sought to generalise for the whole period 1532–1707, but it is important to note that these statements may not be so clearly applicable to each stage of development within that longer period. Indeed, they be too categorical to capture the rather ill-defined nature of the Privy Council jurisdiction at the time of the foundation of the College of Justice, especially in the light of the inchoate and organic institutional developments of the 1530s traced above which witnessed a new relationship being worked out between how Lords of Council operated in the Session and in other departments of Council activity. They may therefore fail to describe adequately the 91  McNeill,

The Jurisdiction of the Scottish 2nd series, v, p. 298 (8 July 1634). 93  McNeill, The Jurisdiction of the Scottish 94  McNeill, The Jurisdiction of the Scottish 95  McNeill, The Jurisdiction of the Scottish 96  McNeill, The Jurisdiction of the Scottish 92  RPC

Privy Council, p. xii. Privy Privy Privy Privy

Council, Council, Council, Council,

p. 176. See also p. 37. p. 32. pp. 176–7. p. 37.

178

A. M. Godfrey

process of how the two jurisdictions developed over the first few decades after 1532, and how an evolving understanding of the interplay of jurisdictional categories informed that process. We have already noted how the legislation founding the College of Justice did not expressly limit or displace the jurisdiction of the general body of Lords of Council operating residually outside the structure of the College of Justice. ‘Ryottes and oppressions’ may have been the principal triggers for Privy Council intervention, but not necessarily the only ones. Determining the scope of its jurisdiction, as well as the precise way in which the category of ‘civil actions’ was applied after May 1532 to identify those cases which the Privy Council would not hear, can only be established by detailed analysis of individual cases. It is therefore important to investigate when, after 1532, the distinction between the exercise of ordinary and extraordinary jurisdiction became established, and how these jurisdictional categories were ascribed to Session and Privy Council respectively. In this regard, the nature of the distinction and how it may have developed can be most directly observed through examination of the procedures which facilitated the transfer of cases between jurisdictions, in particular remits made by the Privy Council to the Session. (e) Remits from Privy Council to the Session The requirement to remit ‘civil’ actions from the Privy Council to the Session was made clear at an early stage. In 1549, during the minority of Queen Mary, the Chancellor – the earl of Huntly – registered in the books of council a letter subscribed by the Governor, the earl of Arran, and the ‘lordis of secret counsale’, which ‘ordanis the lordis of the sessioun to sit continewalie tharon conform to the statutis of the samin for ministration of justice betuix partiis quhatsumevir in all sic actionis as hes bene in tymes bypast discussit in the sessioun’ (emphasis added). The reference to justice ‘betuix partiis’ generally signified a ‘civil’ action. However, the letter also went on to provide the clearest possible statement that such actions ought not to be heard in the Privy Council and should be remitted to the Session. It narrated how: becaus the lordis of the secret counsale are oftymes impeschit with billis and actionis that aucht to be decydit in the sessioun betuix party and party, the lordis forsaidis ordanis the clerk of the counsale to ressave na billis in tymes tocum, bot to remit the samin to the senatouris of the sessioun, quhair thai will that all civill actionis betuix party and party be decydit be the lordis of the session in all tymes tocum, and nocht be the lordis of the secret consale.97 97  ADCP, p. 584 (7 March, 1548/9). See also McNeill, The Jurisdiction of the Scottish Privy Council, p. 32.



The College of Justice in sixteenth century Scotland

179

Thus within five years of the first extant evidence of a separate register for Privy Council business beginning to be kept, the need to articulate distinct competences for the Session and the Council was being recognised – though the implication is that this involved a statement of existing practice rather than an innovation. Administrative measures involving the clerk of council were put in place to preserve the separation of Privy Council and Session business, prevent jurisdictional confusion, and evidently to address a perceived problem in the scope of matters coming to the Council being inappropriately stretched. The ordinance in question is premised upon apparently clear categorical distinctions, straightforward to apply, and requiring the clerk of council to automatically remit such cases to the Session without the need for any substantive judicial consideration by the Council itself. The express policy of the ordinance of 1549 was not one of jurisdictional principle for its own sake but was to address the problem of the Privy Council being ‘impeschit’ – suffering hindrance, obstruction or delay in its business caused by ‘civil’ actions being inappropriately raised there. Hannay regarded the ordinance as showing ‘how failure to make the erection of the College of Justice financially effective arrested specialisation of function and the separation of its sphere of activity from that of the secret council.’98 Privy Council cases at the end of the 1540s suggested to him that ‘[o]n occasion there is deliberate reversion to the old type of mixed council.’99 However, the 1549 ordinance provides clear evidence that the Privy Council strongly desired its sphere of operation to be separate from the Session and its functions to exclude judicial competence in civil actions. There was certainly no sense at all of the Privy Council seeking to acquire a concurrent competence over civil causes, or of jurisdictional competition between the two bodies such as had been evident by the late fifteenth century in England between King’s Bench and Chancery,100 let alone the ‘internecine struggle for business between the common-law courts themselves’ in later sixteenthcentury England.101 Indeed, the impression given is much more of the Privy Council, as a central governmental body, trying with difficulty to manage the volume of its business with a view to reducing it, attempting to restrain litigants from approaching it, and to prevent it being overwhelmed and hampered from fulfilling its principal functions because of undue pressure from legal business. 98  ADCP,

p. xlii. p. xlv. 100  Sir John Baker, The Oxford History of the Laws of England. Vol. 6: 1483– 1558, Oxford, 2003, pp. 153, 174. 101  J. H. Baker, An Introduction to English Legal History, 4th ed., London, 2002, p. 40. 99  ADCP,

180

A. M. Godfrey

It is still necessary to ask why litigants may have been inappropriately seeking redress from the Privy Council in civil actions, if this is what they were doing. It is possible that it reflected difficulties in the functioning or reliability of the Session.102 In reality it may simply be that the practical functioning of the Privy Council was still very intertwined with that of the Session – business being transacted by groups of Lords of Council and Lords of Session who were also Lords of Council, rather than two opposing institutions. After all, Hannay noted that despite the intention in 1532 to ‘secure a regular nucleus of qualified judges’ in the Session, ‘[t]heir complete segregation from other activites of Council was not contemplated, and was indeed impossible.’103 This was still the case in 1549, except that the intention to assert a greater functional separation is now also in evidence. McNeill has pointed out that ‘[l]ater commentators speak of conflict between the council and the court of session but this is certainly not apparent in the records. Since the personnel of the two courts was … largely identical most potential disputes could be dealt with informally.’ Thus, ‘the council consistently remitted appropriate matters to the session.’104 Nevertheless, there seems to have been a need in 1549 to issue an ordinance articulating the basis and requirement of such remits and attempting to enforce a stricter separation. But were any remits in fact made as a result of this ordinance, and with what frequency were remits to the Session made in general over the period as a whole from 1545 to 1603? Perhaps suprisingly, we find no trace of any such remit to the Session in the register of the Privy Council until 1564, although three unsuccessful arguments requesting a remit are recorded for the first time in 1561.105 After that we find a total of 59 remits to the Session between 1564 and March 1603, consisting of 56 remits which were expressly to the Session,106 and three further generic remits to the judge ordinary or judge competent which may have been to the Session.107 There were also five submissions to the 102  Hannay,

College of Justice, pp. 76, 94. On the Antecedents of the College of Justice, p. 122. But see also Godfrey, Civil Justice in Renaissance Scotland, pp. 142, 147. 104  McNeill, The Jurisdiction of the Scottish Privy Council, p. 65. 105  RPC, i, pp. 166; 167; 171. 106  RPC, i, pp. 284, 317; RPC, xiv, p. 307 (1565); RPC, i, pp. 434, 499, 603, 607, 637, 684; RPC, ii, pp. 18, 164, 430, 612; RPC, iii, pp. 69–70, 71, 142, 144, 216, 275, 300, 470, 481, 491, 547; RPC, iv, pp. 12, 24, 25, 53, 85, 226, 328, 330, 449, 451–2, 460; RPC, v, pp. 152, 214, 216, 388–90, 444, 463, (28 June 1598, Convention of Estates), 480, 512, 754 (Privy Council Miscellaneous Papers); RPC, vi, pp. 30, 35–36, 50, 81–82, 190–191, 236, 275, 285 (11 Sept 1601, Convention of Estates), 294, 295, 508, 546. 107  RPC, iii, pp. 337, 433; RPC, iv, p. 624. 103  Hannay,



The College of Justice in sixteenth century Scotland

181

Privy Council that a case before it should be remitted to the Session, but which were rejected,108 two other remits made to Parliament or Convention of Estates,109 and one to a special ad hoc select committee (‘conference’) of Lords of the Privy Council and Lords of Session.110 In addition there were of course remits made by the Privy Council to a judge ordinary other than the Session in civil matters,111 as well as in criminal matters, including to the Justice General.112 Without further investigation it is impossible to say why there were no remits recorded until 1564. Were there no cases which required one? Was the clerk of council simply very efficient in identifying and remitting civil actions by administrative order without any minuted judicial hearing? Were remits simply not recorded until the 1560s? Once remits do begin to be recorded, however, what is most apparent is that it was a relatively uncommon procedure, occurring on average only once or twice a year, and sometimes not at all, as in 1570, 1571, 1573, 1574, 1576, 1578, 1584, 1589, 1592 and 1596. Occasionally there are four, five or even six remits in one year, as in 1579 (5), 1599 (4) and 1601 (6), but this is exceptional, and still does not amount to a particularly high frequency. Overall we see 10 remits to the Session in the 1560s, 8 in the 1570s, 16 in the 1580s, 16 in the 1590s and 9 in the period 1600–1603. Nevertheless, despite the low numbers the evidence still supports McNeill’s view that ‘the council consistently remitted appropriate matters to the session.’113 The Privy Council was simply not concerned to encroach upon ordinary jurisdiction as encompassed by the category of civil causes. In a case in 1571 it ruled that it was ‘nawayes willing to prejudge the ordinar jurisdictionne and jugement or to hinder ony parteis rychtis or defenss bot onlie to provyd for the quietnes of the realme and forbid violent force.’114 This was in response to a submission by the earl of Cassillis that ‘the pointis of the said complaint to be owther civile or criminall, and that he aucht nocht ansuer thairto bot befoir the juges competent.’ The Council did have jurisdiction in 108  RPC

i, pp. 166, 167, 171; RPC, ii, p. 238; RPC, iii, p. 650. iv, pp. 90, 100 (29 July and 22 September 1586). 110  RPC, iii, p. 342 (12 January 1580). 111  E. g. RPC, i, p. 311: ‘remittis the decisioun … to the decisoun and jugement of Archibald Erle of Ergyle, Lord Campbell and Lorne, etc., Sheref of Tarbert, … or utheris ordinar jugeis’. 112  E. g. RPC, iv, pp. 681–2: ‘the King and Council find that they are not judges competent to the reduction of the said respite, and therefore remit the matter to the justice-general and his deputes’. 113  McNeill, The Jurisdiction of the Scottish Privy Council, p. 65. 114  RPC, xiv, p. 91 at 94–95. See McNeill, The Jurisdiction of the Scottish Privy Council, p. 131. 109  RPC,

182

A. M. Godfrey

the case because of the allegations of violence (including abduction by the earl, his brother and sixteen accomplices), and proceeded to require the earl to remain in ward until caution and sureties were found by him. However, the substance of the complaint, which required the production of a contested charter, and tacks (leases), subscribed by the complainer under abduction and torture, so that it could be declared null, was a matter for process before the judge ordinary. Conclusion The evolution of the jurisdiction of the Session was prompted above all by the demands of litigants, perhaps guided by their lawyers, though of course this may have chimed with the desire of rulers to have a ‘strong’ central court – and the project of erecting the Session as a College of Justice may have also fulfilled the ambitions of James V as a Renaissance prince in that respect. But the evidence is most suggestive of parties in dispute pressing their demands for effective remedies and adjudication on central bodies, who developed their jurisdiction in response, rather than being an attempt by those bodies or the King to impose a more powerful central court on otherwise locally-minded disputants. This is as true of the Privy Council’s approach to its residual jurisdiction, which it sought to contain rather than expand, as of the Session in its exercise of what became conceptualised as an ordinary jurisdiction in civil causes. Moreover, if the College of Justice had a fully fledged jurisdiction on its creation in 1532 then this suggests that the transitional period during which Scottish society began to rely more widely on central authority to resolve disputes or achieve settlement, rather than litigation being more of a secondary tool or tactic to use alongside the primary threat of violence and feud, was well underway by this point.115 This also helps make much more explicable further developments we find in the 1530s and 1540s such as the Session making certain areas of jurisdiction exclusive, removing them from local courts whose jurisdiction became understood as inferior. Related developments included the Session stepping in to quash the decrees of lower courts and ordering causes to be transferred or ‘advocated’ to itself (providing a basis for an appellate jurisdiction to become formalised in time), beginning to record the jurisprudence of the court in judicial notebooks, and the formalisation of membership of a lay legal profession with rights of audience. Developments after 1532 demonstrate purposive activity by the court to establish itself in a pre-eminent position within the legal system of Scotland,116 building on the foundation of the Col115  Godfrey, 116  Godfrey,

Civil Justice in Renaissance Scotland, pp. 446–448. Civil Justice in Renaissance Scotland, pp. 316–317.



The College of Justice in sixteenth century Scotland

183

lege of Justice as essentially giving institutional coherence and formal recognition to a jurisdiction which had already been informally developed before 1532 through the provision of remedies in the course of litigation before the King’s Council.117 The political authority achieved by a new central court in the sixteenth century also led to a transformation not only in the law of Scotland, but in the whole context within which disputes themselves could legitimately be resolved.118 Because of the way it developed its central court, Scotland also avoided a jurisdictional split between courts of common law and of equity. This occurred by 1532 through the King’s Council functioning not to supplement the operation of the common law, but to unify it within the field of centralised justice. As Alan Harding has observed from the comparative perspective of English medieval history, ‘In Scotland, the Court of Session came to fill the place of both a Chancery and a King’s Bench.’119 The dynamic role of litigation and the expectations of litigants led the Court of Session from exercising a residual jurisdiction into exercising a superior and general one. Although the Privy Council was left with a judicial role, its jurisdiction did not encroach on that of the Session in practice, precisely because judicial process in the Session was clearly demarcated in terms of competence in ‘civil’ actions and was sufficiently flexible in terms of both procedure and substantive decision-making which was informed by equity and conscience as well as law. A unified court structure and a university-educated lay legal profession regulated by the College of Justice exercised a profound effect on the law of Scotland as it developed up until the union of 1707. This included, from the second half of the sixteenth century, the writing of the first systematic accounts of Scots law since the fourteenth-century Regiam Majestatem, the systematic collection of Scottish legal sources and their ordering in juristic accounts based around decisions of the College of Justice as well as legislation of the Scottish Parliament, and an enhanced openness to the sources of the European ius commune in the shaping of Scots jurisprudence in the sixteenth and seventeenth centuries. As Harding has pointed out, Scotland exemplifies a wider pattern of development in this, remarking that ‘The greater facility for the poor suitor of the complaint by bill and the greater effective117  Godfrey,

Civil Justice in Renaissance Scotland, pp. 451–452. Wormald, Bloodfeud, Kindred and Government in Early Modern Scotland, in: Past and Present, 1980, pp. 54–97; A. Mark Godfrey, Rethinking the Justice of the Feud in Sixteenth Century Scotland, in: Julian Goodare/Steve Boardman (eds.), Kings, Lords and Men in Scotland and Britain, 1300–1625: Essays in Honour of Jenny Wormald, Edinburgh, 2014, pp. 136–154. 119  A. Harding, The Medieval Brieves of Protection and the Development of the Common Law, in: Juridical Review, 9, 1966, pp. 115–149 at 148. 118  Jenny

184

A. M. Godfrey

ness of the peremptory judicial writ as a means of summons combined to produce the second main stage of legal growth in both England and Scotland – the Chancery or equity stage, when pursuers turned away from the old courts to the authorities which issued the more effective orders with less formality.’120 In Scotland, this did not just have profound consequences for the legal system, but a wider effect on governance and dispute resolution generally through enhancing public justice to the degree that methods of private justice which were incompatible with it, such as feud, were permanently abandoned.121 The political authority achieved by a new central court in the sixteenth century thus led to a transformation not only in the law of Scotland, but in the way that disputes themselves were resolved. Bibliography Baker, J. H., An Introduction to English Legal History, 4th ed., London, 2002. Baker, J. H., The Oxford History of the Laws of England, Vol. VI: 1483–1558, Oxford, 2003. Blakeway, A., ‘The Privy Council of James V of Scotland, 1528–1542’, Historical Journal, Vol. 59(1), 2016, 23–44. Borthwick, A., ‘Montrose v Dundee and the jurisdiction of parliament and council over fee and heritage in the mid-fifteenth century’, in: Jones, C. (ed.), The Scots and Parliament, Edinburgh, 1996, 33–53. Brown, K. M., Bloodfeud in Scotland: Violence, Justice and Politics in an Early Modern Society, Edinburgh, 1986. Brown, K. M. et al. (eds.), The Records of the Parliaments of Scotland to 1707, St Andrews, 2007–2016. Cairns, John W., ‘Historical Introduction’, in: Reid, K./Zimmermann, R. (eds), A History of Private Law in Scotland, Vol. 1, Oxford, 2000, 14–184. Calderwood, A. B./Murray, A. L. (eds.), Acts of the Lords of Council, Vol. III: 1501–1503, Edinburgh, 1993. Cameron, J., James V: The Personal Rule, 1528–1542, East Linton, 1998. Croft Dickinson, W. (ed.), Early Records of the Burgh of Aberdeen 1317, 1398–1407, Scottish History Society 3rd ser., Vol. 49, Edinburgh, 1957. Dawson, J. A., Scotland Re-formed, 1488–1587, Edinburgh, 2007. 120  Harding,

The Medieval Brieves of Protection, p. 148. classic account is Wormald, Bloodfeud, Kindred and Government in Early Modern Scotland. See also Jenny Wormald, Lords and Men in Scotland: Bonds of Manrent, 1442–1603, Edinburgh, 1985, and Keith M. Brown, Bloodfeud in Scotland: Violence, Justice and Politics in an Early Modern Society, Edinburgh, 1986. For further comment see Godfrey, Civil Justice in Renaissance Scotland, pp. 400–409, 435–440. 121  The



The College of Justice in sixteenth century Scotland

185

Dolezalek, G., Scotland under Jus Commune: Census of manuscripts of legal literature in Scotland, mainly between 1500 and 1660, Stair Society, Vols. 55–57, Edin­ burgh, 2010. Duncan, A. A. M., ‘The Central Courts before 1532’, in: Paton, G. C. H. (ed.), Introduction to Scottish Legal History, Stair Society, Vol. 20, Edinburgh, 1958, 321– 340. Frieda, L., Catherine de Medici, London, 2003. Godfrey, A. M., ‘Jurisdiction in Heritage and the Foundation of the College of Justice in 1532’, in: MacQueen, H. L. (ed.), Miscellany Four, Stair Society, Vol. 49, Edin­ burgh, 2002, 9–36. Godfrey, A. M., Civil Justice in Renaissance Scotland: the Origins of a Central Court, Leiden, 2009. Godfrey, A. M., ‘Parliament and the Law’, in: Brown, K. M./Macdonald, A. R. (eds.), The History of the Scottish Parliament. Vol. 3: Parliament in Context 1235–1707, Edinburgh, 2010, 157–185. Godfrey, A. M., ‘Rethinking the Justice of the Feud in Sixteenth Century Scotland’, in: Goodare, J./Boardman, S. (eds.), Kings, Lords and Men in Scotland and Britain, 1300–1625: Essays in Honour of Jenny Wormald, Edinburgh, 2014, 136–154. Godfrey, A. M., ‘ The Constitutional Accountability of the Court of Session in Scotland, 1532–1626’, in: Czeguhn, I./López Nevot, J. A./Sánchez Aranda, A. (eds.), Control of Supreme Courts in Early Modern Europe, Schriften zur Rechtsgeschichte (RG), Vol. 181, Berlin, 2018, 117–148. Green, Thomas, ‘The sources of early Scots consistorial law: reflections on law, authority and jurisdiction during the Scottish reformation’, in: Godfrey, M. (ed.), Law and Authority in British Legal History, 1200–1900, Cambridge, 2016, 120– 139. Green, Thomas, The Spiritual Jurisdiction in Reformation Scotland. A Legal History, Edinburgh, 2019. Guenée, B., States and Rulers in Later Medieval Europe, Oxford, 1985. Guide to the National Archives of Scotland, Stair Society, Supplementary Vol. 3, Edinburgh, 1996. Hannay, R. K., ‘On the Antecedents of the College of Justice’, The Book of the Old Edinburgh Club, Vol. 11, 1922, 87–123. Hannay, R. K. (ed.), Acts of the Lords of Council in Public Affairs, 1501–1554. Selections from the Acta Dominorum Concilii introductory to the Register of the Privy Council of Scotland, Edinburgh, 1932. Hannay, R. K., The College of Justice, Edinburgh, 1933. Hannay, R. K., The Early History of the Scottish Signet, Edinburgh, 1936. Hannay, R. K., The College of Justice: Essays by R. K. Hannay, Stair Society Suppl. Vol. 1, Edinburgh, 1990. Harding, A., ‘The Medieval Brieves of Protection and the Development of the Common Law’, Juridical Review, Vol. 9, 1966, 115–149.

186

A. M. Godfrey

Harding, A., ‘Rights, Wrongs and Remedies in Late Medieval English and Scots Law’, in: MacQueen, H. L. (ed.), Miscellany Four, Stair Society, Vol. 49, Edinburgh, 2002, 1–8. Helmholz, R. H., The Oxford History of the Law of England. Volume I: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, Oxford, 2004. Macdougall, N., James IV, East Linton, 1997. Macfarlane, L. J., William Elphinstone and the Kingdom of Scotland, 1431–1514, Aberdeen, 1985. Mackie, J. D./Dickinson, W. C., ‘Relation of the Manner of Judicatores of Scotland’, Scottish Historical Review, Vol. 19(76), 1922, 254–272. MacQueen, H. L., ‘Jurisdiction in heritage and the lords of council and session after 1532’, in: Sellar, W. D. H. (ed.), Miscellany Two, Stair Society, Vol. 35, Edinburgh, 1984, 61–85. MacQueen, H. L., Common Law and Feudal Society in Medieval Scotland, Edinburgh, 1993. MacQueen, H. L., ‘Some Notes on Wrang and Unlaw’, in: MacQueen, H. L. (ed.), Miscellany Five, Stair Society, Vol. 52, Edinburgh, 2006, 13–26. MacQueen, H. L., Common Law and Feudal Society in Medieval Scotland, Edinburgh, 2016. McKechnie, H., ‘Judicial Process upon Brieves’, 23rd David Murray Lecture, Glasgow, 1956. McNeill, P. G. B., The Jurisdiction of the Scottish Privy Council, 1532–1708, unpublished PhD thesis, University of Glasgow, 1960. McNeill, P. G. B. (ed.), The Practicks of Sir James Balfour of Pittendreich, Edinburgh, Stair Society Vols. 21–22, 1962–1963. McNeill, P. G. B. (ed.), ‘Discours particulier D’Escosse, 1559/60’, in: Sellar, W. D. H. (ed.), Miscellany Two, Stair Society, Vol. 35, Edinburgh, 1984, 86–131. McNeill, P. G. B., ‘Introduction to Discours particulier D’Escosse, 1559/60’, in: Sellar, W. D. H. (ed.), Miscellany Two, Stair Society, Vol. 35, Edinburgh, 1984, 86–131. Murray, A., ‘Sinclair’s Practicks’, in: Harding, A. (ed.), Law-making and Lawmakers in British History, London, 1980, 90–104. Murray, A. L., ‘Exchequer, Council and Session, 1513–1542’, in: Hadley Williams, J. (ed.), Stewart Style, 1513–1542. Essays on the Court of James V, East Linton, 1996, 97–107. Neilson, G./Paton, H. (eds.), Acts of the Lords of Council in Civil Causes, 1496–1501, Vol. ii, Edinburgh, 1918. Sellar, W. D. H., ‘The common law of Scotland and the common law of England’, in: Davies, R. R. (ed.), The British Isles 1100–1500: Comparisons, Contrasts and Connections, Edinburgh, 1988, 82–99. Sellar, W. D. H., ‘A Historical Perspective’, in: Meston, M. C./Sellar, W. D. H./Lord Cooper, The Scottish Legal Tradition, Edinburgh, 1991, 29–64.



The College of Justice in sixteenth century Scotland

187

Simpson, A. R. C., ‘Foreword: common law and feudal society in scholarship since 1993’, in: MacQueen, H. L. (ed.), Common Law and Feudal Society in Medieval Scotland, Edinburgh, 2016, xxix–xlvi. Simpson, A. R. C./Wilson, A. L. M., Scottish Legal History. Volume One: 1000–1707, Edinburgh, 2017. Simpson, A. R. C., ‘The Scottish Common Law: Origins and Development, c. 1124– 1500’, in: Pihlajamäki, H./Dubber, M./Godfrey, M. (eds.), The Oxford Handbook of European Legal History, Oxford, 2018, 450–473. Smith, D. B., ‘The Spiritual Jurisdiction, 1560–64’, in: Records of the Scottish Church History Society, Vol. 25, 1995, 1–18. Taylor, A., The Shape of the State in Medieval Scotland, 1124–1290, Oxford, 2016. Thomson, T. (ed.), Acts of the Lords of Council in Civil Causes, Edinburgh, 1839. Webster, J. M./Duncan, A. A. M. (eds.), Regality of Dunfermline Court Book, 1531– 1538, Dunfermline, 1953. Wormald, J., ‘Bloodfeud, Kindred and Government in Early Modern Scotland’, Past and Present, Vol. 87, 1980, 54–97. Wormald, J., Lords and Men in Scotland: Bonds of Manrent, 1442–1603, Edinburgh, 1985.

J. D. FORD

Adjudication in the Scottish Parliament, 1532–1707 Towards the end of the sixteenth century James VI remarked that the parliament of Scotland was ‘nothing else but the head courte of the King and his vassals’.1 Several other writers in the early modern period – professional lawyers among them – made similar remarks, which were not difficult to justify.2 Parliaments were assembled by the summoning of suitors in the same way as other feudal courts.3 The parliament summoned in the year before James made his remark was typical in opening with a formal ‘fenssing’ ceremony, recorded in the phrase ‘curia parliamenti affirmata’, and its handling of substantive business was at once postponed with the equally conventional statement that the king ‘continewis the samyn and all actionis and causes to be decydit thairin’.4 The first item of business dealt with when the 1  James VI, The Trew Lawe of Free Monarchies, Edinburgh, 1598, sig. C7v (punctuation adjusted). A similar, but not identical, remark can be found in the same king’s work, James VI, Basilikon doron, Edinburgh, 1599, p. 33. 2  Sir John Skene, De verborum significatione, Edinburgh, 1597, sig. R5; J. D. Mackie/W. C. Dickinson (eds.), Relation of the Manner of Judicatores in Scotland, in: Scottish Historical Review, 19, 1922, pp. 262–3; Alexander Mudie, Scotiae indiculum: or, The Present State of Scotland, London, 1682, p. 75; Sir George Mackenzie, The Institutions of the Law of Scotland, Edinburgh, 1684, p. 18; Anon., A Breviate of the State of Scotland, London, 1689, p. 3. 3  C. S. Terry, The Scottish Parliament: Its Constitution and Procedure, 1603–1707, Glasgow, 1905, pp. 76–7 and 101–2; R. S. Rait, The Parliaments of Scotland, Glasgow, 1924, pp. 315–23 and 453–4; P. J. Hamilton-Grierson, Fencing the Court, in: Scottish Historical Review, 21, 1924, pp. 54–62; E. E. B. Thomson, The Parliament of Scotland, 1690–1702, London, 1926, pp. 117–18; H. L. MacQueen (ed.), The College of Justice: Essays by R. K. Hannay, Edinburgh, 1990, pp. 246–9. 4  The Records of the Parliaments of Scotland (RPS hereafter), http://www.rps. ac.uk, 1597/11/1; T. Thomson/C. Innes (eds.), The Acts of the Parliaments of Scotland (APS hereafter), vol. 4, Edinburgh, 1814–1875, p. 123. It is not clear that the praise justly lavished on the printed version of these records in J. Goodare, The Scottish Parliamentary Records, 1560–1603, in: Historical Research, 72, 1999, p. 267, can be extended to the online version. For instance, comparison of RPS 1695/5/175 with APS ix 431–6 and National Records of Scotland (NRS), PA2/36, f. 92–7, reveals that the printed version is not only more intelligible but sometimes more reliable than the online version, though the intelligibility is partly achieved through silent emendation of the original. Reference will consequently be made to both versions, in the short forms just used. It should be acknowledged, however, that as well as increasing the

190

J. D. Ford

parliament reassembled a few days later was the review of a sentence of forfeiture imposed in a treason case heard by a previous parliament, and the handling of the last case of this type to be raised had again been quite typical in concluding with the decree of ‘the court of parliament’ being ‘gevin for dome’ by a ‘dempster’, an official also found in other feudal courts.5 It seems that judicial business predominated in the early parliaments of Scotland, as it continued to do in at least some parliaments until as late as the beginning of the sixteenth century, when one of the first things the estates did when they assembled was to delegate to committees of auditors the handling of cases raised at both first and second instance.6 In handling cases raised at second instance under the ‘falsing of dooms’ procedure, parliaments had been understood to sit at the head of a hierarchy of feudal courts.7 What is less clear, however, is whether the recognition that parliament was technically a court had much practical relevance by the time James VI was writing, or was merely a point made for political effect by writers intent on obstructing the emergence of a deliberative body from which kings would be bound to seek approval of their policies.8 Leaving aside the many trials for treason found in the records, it would seem that the Scottish parliament did not in practice become involved in adjudication to any great extent during the early modern period.9 The committees of auditors that were still being amount of material available outside the National Records of Scotland, the online version (described at http:\\www.rps.ac.uk/static/editorialintro) has also made research in this area much easier than it used to be. 5  RPS 1594/4/11 and 1597/11/6; APS iv 56–61 and 123–4. 6  W. C. Dickinson, Scotland from the Earliest Times to 1603, Edinburgh, 1961, pp. 106–7; A. A.  M. Duncan, Scotland: The Making of the Kingdom, Edinburgh, 1975, p. 610; G. W. S. Barrow, Kingship and Unity: Scotland, 1000–1306, Edinburgh, 1989, p. 127; R. Tanner, The Late Medieval Scottish Parliament: Politics and the Three Estates, 1424–1488, East Linton, 2001, pp. 196–7; J. Goodare, The Government of Scotland, 1560–1625, Oxford, 2004, pp. 71–2. 7  P. J. Hamilton-Grierson, The Appellate Jurisdiction of the Scottish Parliament, in: Scottish Historical Review, 15, 1918, pp. 205–22; and idem, Falsing the Doom, in: Scottish Historical Review, 24, 1926, pp. 1–18. 8  See, for instance, the response to the remark cited from Mackenzie’s Institutions in fn. 2 above in: [George Ridpath], An Historical Account of the Antient Rights and Power of the Parliaments of Scotland, n.p., 1703, pp. 116–19. And see too K. M. Brown and A. J. Mann (eds.), The History of the Scottish Parliament. Vol. 2: Parliament and Politics in Scotland, 1567–1707, Edinburgh, 2005, pp. 5–6 and 18. 9  Rait, Parliaments of Scotland, pp. 471–9; W. B. Gray, The Judicial Proceedings of the Parliaments of Scotland, 1660–1688, in: Juridical Review, 36, 1924, pp. 135– 51; A. M. Godfrey, Parliament and the Law, in: K. M. Brown/A. R. MacDonald (eds.), The History of the Scottish Parliament. Vol. 3: Parliament in Context, 1235–1707, Edinburgh, 2010, pp. 167–8. Although the parliament’s continuous exercise of criminal jurisdiction cries out for detailed study – perhaps in a doctoral dissertation and



Adjudication in the Scottish Parliament, 1532–1707191

appointed in the early sixteenth century did not in fact handle any cases, for by then parliament was acquiescing in the handling of judicial business by ‘the lords of council and session’, whose emergence as a central civil court it eventually endorsed by authorising the creation of the College of Justice in 1532.10 The perception at the time was that while parliament was comparable in its legislative capacity to the parliament of England, the College of Justice was comparable in its adjudicative capacity to the parlement of Paris, on which it was understood to have been modelled.11 Parliament was thus perceived primarily as a legislature, while the session was perceived primarily as a court. It is possible that the intention when the lords of session first came into existence in the early fifteenth century had been to establish a court on an English model.12 The practice of initiating litigation by issuing writs – in Scotland ‘brieves’ – from the royal chancery had already been borrowed from south of the border, and although in the session litigation was initiated instead by the submission of informal bills, the intention may have been to organise the jurisdiction exercised by the king’s council along the lines in which the jurisdiction of the chancery was then being organised in England.13 Neither a local court which could be instructed to hold an inquest by the king, nor a central court (like the king’s bench or common pleas in Engthen a book – the focus of this essay is on its more intermittent exercise of civil jurisdiction in the early modern period. 10  The main study of this development is now A. M. Godfrey, Civil Justice in Renaissance Scotland: The Origins of a Central Court, Leiden, 2009, though the essays by Hannay mentioned in fn. 3 above remain of some interest, and see too P. J. Hamilton-Grierson, The Judicial Committees of the Scottish Parliament, 1369–70 and 1544, in: Scottish Historical Review, 22, 1924, pp. 1–13 ; A. R. G. McMillan, The Evolution of the Scottish Judiciary, Edinburgh, 1941; A. A.  M. Duncan, The Central Courts before 1532, in: G. C. H. Paton (ed.), An Introduction to Scottish Legal History, Edinburgh, 1958, pp. 321–40. 11  William Camden, Britain, or, A Chorographicall Description of the Most Flourishing Kingdomes, England, Scotland, and Ireland, London, 1610, pt 2, p. 8; James VI, The Workes of the Most High and Mighty Prince, James, London, 1616, pp. 520–1; Joan Blaeu, Theatrum orbis terrarum, sive atlas novus, vol. 5, Amsterdam, 1640– 1654, pp. 25 and 27. 12  J. M. Thomson, The Public Records of Scotland, Glasgow, 1922, pp. 32–3; E. W. M. Balfour-Melville, James I, King of Scotland, 1394–1437, London, 1936, pp. 131–2; Godfrey, Civil Justice in Renaissance Scotland, pp. 45–6. 13  H. McKechnie, Judicial Process upon Brieves, Glasgow, 1956; H. L. MacQueen, Pleadable Brieves, Pleading and the Development of Scots Law, in: Law and History Review, 4, 1986, pp. 403–22; A. Harding, Rights, Wrongs and Remedies in Late Medieval English and Scots Law, in: H. L. MacQueen (ed.), Miscellany Four, Stair Society, 49, Edinburgh, 2002, pp. 1–8. See too the magisterial treatment of the general themes touched on here in A. Harding, Medieval Law and the Foundations of the State, Oxford, 2002.

192

J. D. Ford

land) which could be expected to examine any legal questions arising from the instructions issued, nor even a supreme court (like the parliament of Scotland) which could supervise the administration of justice within a feudal structure, the session may have been conceived of as a branch of the curia regis in which justice would be administered in cases the common law failed to deal with adequately. Nevertheless, whatever the original intention may have been, by the sixteenth century the lords of council and session had come to be regarded as ‘judges ordinary’ with jurisdiction in ‘all actiouns civile’.14 While it would be anachronistic to think in terms of a clear separation between the legislative power of parliament, the adjudicative power of the session and the administrative power of the privy council, the institutional – as opposed to functional – separation between the three bodies had become sufficiently clear for it to have made sense in the sixteenth and seventeenth centuries for parliament to have neglected the judicial responsibilities its predecessors had struggled to discharge.15 But is this really what happened? A problem of definition immediately arises. There is a fair amount of evidence in the parliamentary records of acts being passed in response to the submission of petitions by private parties, often after objections were raised by other affected parties, and sometimes after arguments were presented by professional representatives.16 The resemblance these exchanges bore to forensic disputations did not prevent the acts eventually passed from being legislative in character. On the other hand, there are also acts recorded that clearly were of an adjudicative character. In these cases one party would seek to have another summoned before the court to answer specific allegations, a remedy would be requested, and if granted the response of the court would be framed as a ‘decreet’. Clear instances of private litigation are not difficult to distinguish from clear instances of private legislation, but clarity is not always provided, and the classification of parliament’s activities can be difficult.17 If a cautious approach is taken, it is possible to identify about four hundred and fifteen examples of litigation being handled at first instance between the foundation of the College of Justice 14  RPS 1532/6 and 1544/11/28–9; APS ii 335–6 and 449–50; John Sinclair, Practicks, unpublished, no. 367 (transcript based on Edinburgh University Library MS La.III.388a by Dr Athol Murray, with notes by Prof Gero Dolezalek, at https://home. uni-leipzig.de/jurarom/scotland); W. M. Morison, (ed.), The Decisions of the Court of Session, vol. 9, Edinburgh, 1801–1804, p. 7322. 15  G. Donaldson, Scotland: James V to James VII, Edinburgh, 1965, pp. 276–91; K. M. Brown, Kingdom or Province? Scotland and the Regal Union, 1603–1715, Basingstoke, 1992, pp. 6–23; Goodare, Government of Scotland, pp. 42–69. 16  The evidence extends well beyond the ‘ratifications’ treated as ‘private acts’ in Rait, Parliaments of Scotland, pp. 449–51. 17  For an early example of the difficulty referred to see RPS 1543/12/35; APS ii 432.



Adjudication in the Scottish Parliament, 1532–1707193

in 1532 and the abolition of the Scottish parliament in 1707, as well as twenty-five instances of litigation being handled at second instance.18 These figures are probably on the low side, not only because the approach taken may be unduly cautious, but also because many of the cases identified are mentioned only in minutes of a parliament’s proceedings, which have survived in a haphazard fashion.19 Even allowing for this, the figures are not likely to have been high enough to indicate that adjudication remained a prominent part of parliament’s business after all – in a period of a hundred and seventyfive years, cases may perhaps have been heard at a rate of just three or four per year. Yet it is already evident that adjudication did remain more frequent than is generally appreciated, and frequent enough to deserve closer scrutiny than it has received in the past. Although the traces of some cases are frustratingly exiguous, there are more detailed records of others that enable conclusions to be drawn about how litigation was handled. Cases came before parliament in several ways, beginning with referral from one court to another. In the fifteenth century – in a case that continued to attract the attention of lawyers during the sixteenth and seventeenth centuries – it had been decided that whenever a question arose for consideration before ‘any jugeis of this realm, quhilk cannot be decydit be no cleir writtin law, the decisioun and declaratioun theirof aucht and sould be referrit and continewit unto the nixt parliament’.20 It was believed to be in conformity with this decision that a case was remitted to parliament from the recently formed College of Justice in 1535, when it was found that ‘the lawis producit’ on behalf of one of the parties were ‘variant in thair selfis’.21 In 1567 the lords of session sought 18  Limited attention will be paid here to the cases heard at second instance as they have already been considered in some detail in J. D. Ford, Protestations to Parliament for Remeid of Law, in: Scottish Historical Review, 88, 2009, pp. 57–107. A point made there is that in addition to the cases found in the parliamentary records, mention is made elsewhere of parties declaring an intention to raise proceedings before parliament in twenty-seven other cases. Some of these may actually have come before parliament without any record being kept. 19  Sometimes when parliamentary sessions ended ‘articles and supplicationis’ that had not been dealt with were remitted to either the session (for instance, RPS 1587/7/36; APS iii 448) or the privy council (for instance, RPS 1592/4/110; APS iii 586). Some of the business remitted may have related to private litigation. 20  P. G. B. McNeill (ed.), The Practicks of Sir James Balfour of Pittendreich, vol. 1, Edinburgh, 1962–1963, pp. 1–2; J. A. Clyde (ed.), Hope’s Major Practicks, vol. 1, Edinburgh, 1937–1938, p. 1. 21  National Archives of Scotland (NAS hereafter), CS6/6, f.  279v–80r; RPS 1535/49–50; APS ii 349–50; R. K. Hannay (ed.), Acts of the Lords of Council in Public Affairs, 1501–1554, Edinburgh, 1932, p. 431; McNeill (ed.), Practicks of Sir James Balfour, vol. 1, p. 268; Morison (ed.), Decisions of the Court of Session, vol. 9, p. 7320. See too the remarks on the case in Goodare, Government of Scotland, p. 84, and Godfrey, Civil Justice in Renaissance Scotland, pp. 198–9.

194

J. D. Ford

a ‘declaratioun’ from parliament on another question that had arisen in cases brought before them, though neither here, nor apparently in the 1535 case, was it suggested that the particular disputes between the parties should be disposed of by the estates.22 Ten years later the privy council directed the lords of session to desist from dealing further with at least five cases until they were heard in parliament.23 Of two of these cases no mention has been found in the parliamentary records.24 In another the estates not only granted a ‘declaratour’ on the general question raised, but also spelled out how the particular case was to be dealt with.25 In the fourth case the inhibition imposed by the privy council was extended indefinitely while the dispute was settled by arbitration,26 although a similar act of inhibition passed in the fifth case was reviewed and reversed in a later session of parliament.27 In what may have been another instance of interference by the privy council, a case was remitted for determination to the lords of session, whose earlier consideration of it had been interrupted.28 By the time this happened a general statute had been passed requiring the lords of session to persist in hearing all cases raised before them, ‘notwithstanding ony privat writing, charge or command, at the instance of ony persone or persones, direct or to be directit in the contrair’.29 The reasoning behind the statute was partly that the lords of session had been promised there would be no royal interference with their handling of cases, ‘as it tendis to thair discrediting’, and partly that if the newly emerging practice were allowed to continue, ‘the kingis majestie, his parliament and privie counsale sal have litill tyme and opportunitie to considder his hienes awin affairis and the cause of the commounweill’.30 Interference by the privy council appears to have 22  RPS

A1567/12/21; APS iii 29. Ford, ‘Epistolary Control of the College of Justice in Scotland’, in: I. Czeguhn/J. A. López Nevot/A. Sánchez Aranda (eds), Control of Supreme Courts in Early Modern Europe, Berlin, 2018, pp. 63–88. 24  J. H. Burton/D. Masson (eds.), The Register of the Privy Council of Scotland, vol. 3, Edinburgh, 1877–1898, pp. 140 and 193–4. 25  RPS 1579/10/71; APS iii 172–3. 26  NRS, CS1/3/1, f. 67; RPS 1578/7/34, 1579/10/64 and 1581/10/63–4; APS iii 112–14, 164–5 and 230–1; Clyde (ed.), Hope’s Major Practicks, vol. 2, pp. 22 and 24. See too Burton/Masson (eds.), Register of the Privy Council, vol. 3, pp. 261–2, 275, 278–80 and 401–2, and Morison (ed.), Decisions of the Court of Session, vol. 3, p. 2065. 27  NRS, CS1/3/1, f. 97r; RPS 1578/7/31, 1579/10/63 and 1584/5/91; APS iii 111, 163 and 354–5; Clyde (ed.), Hope’s Major Practicks, vol. 2, pp. 22 and 24. 28  NRS, CS7/76, f. 427; RPS 1979/10/79; APS iii 178; Clyde (ed.), Hope’s Major Practicks, vol. 2, p. 22. 29  RPS 1579/10/54; APS iii 152–3; Clyde (ed.), Hope’s Major Practicks, vol. 2, p. 20. 30  The promise made to the lords of session when the College of Justice was established was included in all the early modern collections of legislation. See Edward Henryson (ed.), The Actis and Constitutiounis of the Realm of Scotland, Edinburgh, 23  J. D.



Adjudication in the Scottish Parliament, 1532–1707195

ended at this point, but the lords of session themselves referred two cases raising new or difficult issues to the estates in 1581 – ‘ne in re nova aliquid videretur sibi arrogare’ – and 1593 – ‘for certane ordour to be taken and sett down’.31 Some justification was thus provided for the observation made by an anonymous writer at the beginning of the seventeenth century that when confronted with cases ‘for which there was no president’, the lords of session were ‘accustomed (but verie seldome) to remitt these matters to be judged upon by parliament, that by statute of parliament they may have a warrant for their decision in such like cases’.32 After the later sixteenth century, however, no further example of the practice has been encountered until the later seventeenth century.33 An attempt to have the privy council interfere once again with proceedings pending before the session was defeated in 1684, when lawyers recalled the events of the late 1570s,34 but four more cases were remitted to the estates for decision by the lords of session themselves in the 1690s.35 The more common way for cases to come before parliament was by being raised there by one of the parties. On a handful of occasions proceedings at first instance were initiated by the purchase of ‘our soverane lordis lettres’ to have someone compelled to appear and answer a complaint laid out in the letters, which took the standardised form of a ‘summondis’ in use before the

1566, f. lxvii; Sir John Skene (ed.), The Lawes and Actes of Parliament, Edinburgh, 1597, p. 113; Sir Thomas Murray (ed.), The Laws and Acts of Parliament, Edinburgh, 1681, p. 121. 31  Thomas Craig, Ius feudale libri tres, Edinburgh, 1655, p. 67; APS 1581/10/28 and 1593/4/69; APS iii 214–15 and iv 35–6. 32  Mackie and Dickinson (eds.), Relation of the Manner of Judicatores, p. 266. 33  In 1609 and 1612 the estates confirmed that decisions delivered in the privy council and session were soundly based on the acts of parliament litigants had cited (RPS 1609/4/53 and 1612/10/52; APS iv 450 and 500). There is no indication, however, in the records of either parliament or session, that the judges felt any need in the latter case to solicit approval from the estates (NRS, CS7/230, f. 27–8). 34  Sir John Lauder, The Decisions of the Lords of Council and Session, vol. 1, Edinburgh, 1759–1761, p. 271, citing the 1579 statute and Hope’s Major Practicks. Although this case was referred to at an earlier stage in P. Hume Brown/H. Paton/E. W. M. Balfour-Melville (eds.), The Register of the Privy Council of Scotland, 3rd series, vol. 8, Edinburgh, 1908–1970, pp. 261–2, the discussion reported by Lauder, a member of the privy council, does not appear there. 35  RPS 1693/4/81, 1695/5/175 and M1698/7/4; APS ix 285–99 and 431–6, and x appendix 20; Lauder, Decisions of the Lords of Council and Session, vol. 1, pp. 526–7, 543, 556, 563, 631, 655, 709, 792–4 and 797. No mention of one of these cases has been found in the parliamentary records, and no formal act of remission has been found in relation to any of them in the records of the session, though one is mentioned at NRS, CS22/154, f. 141v–4r. It may be that the remission took the form of an endorsement on the back of the papers sent to parliament.

196

J. D. Ford

lords of session.36 Although actions were initiated in the session by the submission of informal bills as opposed to the direction of formal brieves, in practice stylised documents had been developed for most types of action to enable defenders to be summoned without the judges being troubled for their prior approval, and it was this expeditious mode of procedure that was occasionally used in parliament. However, in the vast majority of cases raised before parliament at first instance parties submitted genuinely informal bills, composed in the classic pattern of ‘supplications’ or ‘petitions’, in which they ‘humblie’ craved the indulgence of the king and estates by describing something that had happened and seeking to have the defender summoned to appear so that the matter could be investigated and an appropriate remedy then granted.37 Sometimes the supplications submitted were similar in style to the documents used in the session, but the crucial feature of this mode of procedure was of course the flexibility it retained to enable new remedies to be granted in new situations.38 Even when legislation was enacted to encourage parties to obtain ‘summonds and warrands for citation’ from the clerks of parliament or session, most cases continued to be raised at first instance by the submission of supplications.39 It was in relation to cases raised at second instance that the legislation had more effect, and only towards the end of the period examined. In fact, for most of the period under review parliament did not hear cases raised at second instance.40 In 1649 the purchasing of a ‘summonds of reductioun and improbatioun’ led to the annulment of a decreet of session

36  See, for instance, RPS 1649/1/390 and A1649/1/110; APS vi(ii) 344–5 and 718–19. For the standardised form of the ‘summonds of spuilzie’ used in this case see George Dallas, System of Stiles, as Now Practicable within the Kingdom of Scotland, Edinburgh, 1697, pp. 204–5. 37  H. Millet (ed.), Suppliques et requêtes: le gouvernement par la grâce en Occident (XIIè–XVè siècle), Rome, 2003; F. S. Naiden, Ancient Supplication, Oxford, 2006; G. Dodd, Justice and Grace: Private Petitioning and the English Parliament in the Late Middle Ages, Oxford, 2007; W. M. Ormrod/G. Dodd/A. Musson (eds.), Medieval Petitions: Grace and Grievance, Woodbridge, 2009. 38  The example cited in fn. 36 above may usefully be compared with RPS 1661/1/85, 1661/1/231–3, M1661/1/17 and M1661/1/37; APS vii 42–3 and 182–8 and appendix 16 and 62. It needs to be remembered, though, that what was used in the earlier example was a ‘lybellit sumondis’, which remained closer in style to the bills from which it had originally emerged than some other forms. Examples of less stylised supplications will be noted below. 39  RPS 1695/5/40; APS ix 361–2. Almost all of the forty-six cases raised at first instance between 1696 and 1707 were raised by way of a supplication. 40  Again, this topic is dealt with more fully in Ford, Protestations to Parliament for Remeid of Law.



Adjudication in the Scottish Parliament, 1532–1707197

granted in a dispute over precedency between two noblemen.41 In 1663, when parliament was invited to review another decreet of session by the king, the 1649 case was treated as an aberration, the king being told that the lords of session were ‘the supream judicator of this kingdom in maters civill, from whom ther is no appeall be the lawes of this nation’.42 After further controversy it was eventually confirmed in 1689 that it was lawful for litigants dissatisfied with their treatment in the session to approach parliament with ‘protestations for remeid of law’, though what exactly this meant was not made entirely clear either then or at any stage during the next eighteen years, when the hearing of cases raised at second instance finally became more common.43 It was generally accepted that there could be no ‘appellation’ from the session in the strict sense, and also that any action available against erring judges would be of a different character, but while most of the cases raised involved an attempt to have a decreet of session annulled or ‘cassed’, there were also attempts to have an alternative decision issued in place of the decreet of session.44 By encouraging the initiation of proceedings by the purchasing of a summons of reduction, the estates were perhaps trying to steer litigants in the former direction. Once cases had been brought before parliament, their handling was usually delegated to either an ad hoc committee or one of several standing committees. Procedure by delegation to committees was typical of the parliament throughout the early modern period, and initially at least judicial business tended to be handled by the same committee – known as the lords of the articles – that prepared legislation for enactment.45 As late as 1639, for example, a request for an award of aliment was referred to these lords, who concluded after some discussion that they remained ‘judges competent to prepaire the desyre of this supplicatione as ane article to be presented to the parliament’.46 By then distrusted as an instrument of royal control over the proceedings of the estates, the lords of the articles were suppressed in the 1640s and replaced with a ‘comittee of the billes’, which also came to handle

41  NRS, GD3/2/32/2, GD3/2/34/17–20, GD3/2/34/5, GD3/2/35/1, GD3/2/35/3 and GD3/2/37; RPS 1649/1/51, 1649/1/61, 1649/1/160, 1649/1/208 and 1649/1/239; APS vi(ii) 150, 152, 209, 229–31 and 247–61. 42  NRS, PA7/10/25 and 58; RPS 1663/6/99; APS vii 500. 43  RPS M1689/3/20; APS ix 40. 44  The ‘falsing of dooms’ procedure mentioned earlier was one of several ways in which erring judges had been required to account for their decisions. 45  Terry, Scottish Parliament, pp. 103–24; Rait, Parliaments of Scotland, pp. 349– 93; A. J. Mann, House Rules: Parliamentary Procedure, in: Brown/MacDonald (ed.), History of the Scottish Parliament: Parliament in Context, pp. 137–8 and 140–2. 46  RPS C1639/8/21; APS v 599.

198

J. D. Ford

most of the judicial business raised in parliament.47 The lords of the articles were eventually restored along with the monarchy in 1661, but while this was happening many cases were referred to ‘the commissioners for bills and trade’, whose responsibility ‘for hearing of private complaints between parties’ reminded lawyers of the committees of auditors appointed in the fifteenth century.48 After another thirty years, the lords of the articles were finally abolished at the end of the 1680s, but even then the practice of referring judicial business to standing committees continued.49 It was before these committees that the parties appeared to present their allegations and arguments – or arranged for professional representatives to appear on their behalf – and that evidence was adduced in support of factual assertions. As the instructions issued to the ‘comittee of the billes’ in 1641 put it, the role of those to whom the preliminary processing of requests for judicial assistance was delegated was ‘to heir and prepair the saidis supplicationis, grant citationes therupon, and to report in audience of the whole estates of parliament’.50 That final decisions would have to be made by the whole estates of parliament was never in doubt, though the reports presented for approval generally took the form of draft decreets, which were either accepted or rejected without any further hearing of the parties. Many cases never reached the stage of a report and decreet. Some had to be resumed in later parliaments, some vanished without trace, and some were remitted for determination to other courts, particularly the session or privy council.51 47  The committees of the revolutionary period receive detailed scrutiny in J. R. Young, The Scottish Parliament, 1639–1661: A Political and Constitutional Analysis, Edinburgh, 1996. 48  RPS 1661/1/13; APS vii 8–9; Sir John Lauder, Historical Notices of Scotish Affairs, vol. 1, Edinburgh, 1848, pp. 1–3; Sir George Mackenzie, Memoirs of the Affairs of Scotland from the Restoration of King Charles II, Edinburgh, 1821, p. 21; G. H. MacIntosh, The Scottish Parliament under Charles II, 1660–1685, Edinburgh, 2007, pp. 20–1. 49  Thomson, Parliament of Scotland, pp. 65–72. 50  RPS 1641/7/52; APS v 318. 51  For instance, in 1690 John Kerr of Moriston submitted a supplication to parliament to have a document held by Sir James Cockburn of that ilk reduced (RPS A1690/4/30 and M1690/4/43; APS ix appendix 66–7 and 168). Investigation of the case was remitted to ‘the commission appointed for fines and forefaulturs’, but in 1693 the supplicant’s son and heir had to present a new petition to parliament asking to have the report produced by the commission implemented (RPS A1693/4/7 and M1693/4/8; APS ix appendix 76). Even then, nothing else was done, and in 1700 Cockburn asked for the case, ‘which has long depended before the committies of parliament’, to be remitted to the session (RPS 1700/10/60, 1700/10/121, A1700/ 10/15–17, M1700/10/11 and M1700/10/27; APS x 213 and 230 and appendix 53 and 63–5). The estates announced that they would hear the case themselves ‘when they com to consider privat affaires’, but it had to be brought back again in 1703, when a lengthy act was finally passed remitting it to the lords of session (RPS 1703/5/59,



Adjudication in the Scottish Parliament, 1532–1707199

There could be a certain amount of cooperation between these courts. An example of a case considered by several different bodies is an action raised in 1661 by Marion Maxwell to have David McBrair of Newark, her deceased husband’s uncle, removed from land he had forcibly occupied and made to account for income he had since received from the land.52 She explained in the supplication she submitted that there had been an understanding between her husband and his uncle that as a widow she would receive a liferent interest in as much of any land the uncle inherited from her husband as would provide an annual income for herself and her son of six hundred pounds. Instead, after her husband’s death, his uncle had occupied all the land inherited, ‘so that the petitioner and her son are lyk to starve’, and she was therefore ‘craveing that his grace and estates of parliament’ would eject the uncle from the land he had wrongfully entered and make him pay her the income she should already have received from the land. The parties appeared with their procurators before the committee for trade and bills, various claims and counterclaims were exchanged, testimony was taken from witnesses, and the committee presented ‘their report thairof to his majestie and estates of parliament’. It was decided that the petitioner and her son should be repossessed in the land, that the case should be remitted to the lords of session to have it determined how much money was due from the uncle to the widow, and that in the meantime five hundred pounds should be paid by way of aliment. Early in 1662 the parties appeared with their procurators before the lords of session, who were informed that the widow had previously felt obliged ‘humblie to have adres to the [royal] commissioner his grace and estates of parliament, under whois protectione and justice the remeid and help of poor opprest widowis and orphants is to be found’.53 After examining the report presented to parliament, the court ordered the uncle to remove himself immediately from the land and proceeded directly to an investigation of how much was owed by way of an action of ‘compt and reckoning’ between the parties. In 1662 the case came to the attention of the privy council when the uncle complained that the widow had sent a band of armed men to evict him from the land he was occupying, arguing that he remained entitled to at least part of the land.54 After hearing arguments from both parties, the privy council concluded ‘that what was done 1703/5/63, 1703/5/77, 1703/5/93, 1703/5/172, M1703/5/13–14, M1703/5/16, M1703/ 5/20 and M1703/5/51; APS xi 47–8, 62, 64 and 89–100 and appendix 16, 18, 20, 28 and 33). 52  RPS 1661/1/446 and M1661/1/77; APS vii 327–8 and appendix 8. 53  NAS, CS 18/3, f. 23–5. After 1603, the absent king was represented in parliament by a commissioner. 54  Hume Brown/Paton/Balfour-Melville (eds.), Register of the Privy Council, 3rd series, vol. 1, pp. 245–6.

200

J. D. Ford

was in virtue of his majestie’s letters of ejection’. In contrast, when some tenants of another part of the land complained that they had also been evicted by an armed band sent by the widow, the privy council found that the letters of ejection did not extend to them, ordered the repossession of the tenants, and also made them an award of damages from the widow for the ‘wrong’ she had committed.55 In contrast to cases like the one just outlined, in which various courts recognised each other’s responsibilities and helped to implement each other’s decisions, there were also some in which it was argued that one court was encroaching upon the jurisdiction of another. Here, naturally, the arguments that attract particular attention relate to the alleged encroachment of the estates upon the jurisdiction of the session. In 1543, in one of the earliest cases raised in parliament after the foundation of the College of Justice, it was apparently argued by a lawyer appearing for the defender that ‘the lordis of artikulis and secret consale’ were not competent judges, ‘bot the lordis of sessioune, chosin be avise of parliament, alanerly’.56 Whatever basis was provided for the argument, it was not accepted by the court, and the lawyer ‘protestit for remeid’.57 When another ‘declinatour’ was rejected by the lords of the articles in a later case, ‘the justice clerk, in name of the lords of sessioune, protested in the contrair’.58 In other cases too the records mention arguments that ‘this matter is onlie competent to the lords of session’, or that ‘this debate is nowayes parliamentarie bot ought to be remitted to the lords of session’, without explaining the basis on which the arguments were presented.59 Sometimes, however, more information is provided. According to advocates appearing in one case, ‘the wisdom of the nation hath determined, by repeated acts of parliament, that all civil actions shall be first brought in

55  Hume Brown/Paton/Balfour-Melville (eds.), Register of the Privy Council, 3rd series, vol. 1, pp. 238–9, and see too pp. 590–1. 56  RPS 1543/12/27–29, 1543/12/36–37 and 1543/12/56; APS ii 431–3 and 442. The case related to another raised before ‘the lordis of counsale’, meaning the lords of council and session rather than the lords of ‘secret consale’, who were associated in parliament with the lords of the articles (NRS, CS7/1/2, f. 419v–20r; Hannay (ed.), Acts of the Lords of Council in Public Affairs, p. 529). Paradoxically, the understanding here may have been that while the lords of session operated outside parliament with parliamentary authority, cases were heard in parliament by the lords of the articles operating with conciliar authority. Compare the observation in Duncan, Central Courts before 1532, p. 333, that ‘in time of parliament the council was in parliament and its jurisdiction exercised by parliament through auditors’. 57  It is of some interest, in view of later developments, that parties could ‘protest for remeid’ within as well as to parliament. 58  RPS C1639/8/16–7, C1639/8/21, C1639/8/24 and C1639/8/27; APS v 598–601. 59  RPS A1649/1/99 and 1661/1/406; APS vi(ii) 715–16 and vii 295–9.



Adjudication in the Scottish Parliament, 1532–1707201

before and decided by the judge ordinary’.60 Specific reference was made to an act passed in 1425, requiring all ‘billis of complanttis’ to be presented to the ‘jugis and offysaris of the cuntre to quham thai perten of law’, with further ‘recurse to the kyng’ only if ‘the juge refusis to do the law evinly’, and to another act passed in 1469, reiterating that anyone with a complaint ‘sall first cum to his juge ordinare’, and trouble ‘the king and his consail’ only ‘gif the juge ordinare failyis him’.61 As an argument for leaving first instance jurisdiction to the lords of session, this line of reasoning was obviously dependent on their recognition as judges ordinary rather than representatives of the king in council. In another case reference had been made to the legislation mentioned earlier in which the lords of session were given jurisdiction over ‘all actiouns civile’ and were instructed to proceed with the handling of litigation despite their receipt of ‘privie writtingis’ from the king or his council.62 These acts were also thought to show that ‘the lordis of sessioune ar onlie proper judges in the first instance’, although the emphasis here was on their recognition by the king as judges who ‘presentis our person, and bearis our authoritie in doing of justice’.63 Other advocates referred more vaguely to ‘acts of parliament standing, ordaining private civill actions to be remitted’, or even more vaguely to ‘the law and practice of this our sovereign lords kingdom’, requiring actions of this type to be ‘pursued before the ordinary judge, the lords of session’.64 On another occasion it was argued that ‘according to the continowall incontraverted lawes and practice of this realm’, the estates could not consider ‘ordinar civill actiones’ unless they were ‘referrit to your lordships be the senatours of the college of justice as a bussines not formerlie determined be any standing law, practike or act of parliament’.65 The purpose behind the statutes and customs referred to by lawyers was explained in various ways. The advocate who cited the statute relating to ‘privie writtingis’ extracted from it the rationale that parliaments would have ‘littill tyme and opportunitie’ to consider matters of public interest ‘iff at the inopportune sute of privat pairties civill causis properlie belanging to the 60  RPS 1695/5/74, 1695/5/145, M1695/5/16 and M1695/5/28; APS ix 367 and 412–15 and appendix 104 and 118. 61  RPS 1425/3/25 and 1496/16; APS ii 8 and 94. The latter statute actually added the proviso: ‘never the les it salbe leful to the kingis hienes to tak the decisione of ony actioune that cummis before him at his emplesance’. 62  RPS A1649/1/11, M1641/8/48, M1641/8/69 and M1641/8/71; APS v 682, 696 and 700. For the legislation mentioned earlier see fn. 14 and 29 above. 63  See again the sources cited in fn. 30 above. 64  RPS 1661/1/220 and 1662/5/71; APS vii 168–77 and 406–8. See too RPS 1649/5/124; APS vi(ii) 428–9. 65  RPS 1645/7/24/38; APS vi(i) 451–3.

202

J. D. Ford

judgement of the colledge of justice salbe brocht befoir theme’.66 On other occasions it was similarly objected that if actions were heard it would ‘bring great fashrie and vexatioune upoun the parliament, who have materis of greater concernment in hand and moir propper to be hard and putt to ane poynt nor such commone and triviall actiounes’, and that it would be inconvenient for litigants to ‘trouble the high court of parliament, who are taken up with the weightier matters of the kingdom, with such small triffles betwixt privat persons’.67 Another approach was to explain that the reason why civil actions between private parties were ‘moir propper’ to the lords of session was that they were better equipped to deal with them. In cases like these, it was said, ‘questiones of law will inevitablie occurre to be discussit, quhilkes per rerum natura cannot be proponit, dispute nor decydite before this honorable and highe court of parliament, nor without the helpe, assistance and advyce of advocates and laweres’.68 One advocate argued that the rights of private parties would be exposed to risk if actions could be brought before parliament ‘upon a naked bill’, instead of being brought before the session ‘by a libelled summons’.69 His point was partly that defenders would be less able to prepare and present their pleadings if actions were pursued ‘summarily’, with a single citation to appear, and partly that the security of their rights would be threatened if actions could be initiated by bills ‘containing no relevant reason’, with only a general request for justice to be delivered.70 Another advocate agreed that bringing an action before the session by way of a summons was the ‘ordinary’ mode of procedure, observing that recourse to parliament was ‘extraordinary’, and citing the maxim that non recurrendum est ad remedium extraordinarium quam diu locus est ordinario.71 He connected this point with a third approach to explaining why civil actions should be remitted to the session by adding that ‘the kings liedges can run no hazard of being prejudged since there is alwise recourse to the parliament by protestation for remead of law, which is now cleared’. In another case heard after 1689 the hope was expressed that ‘the right honourable the estates of parliament will not meddle with that civil matter unless it come 66  RPS

A1641/8/110; APS v 696. A1649/1/11 and 1700/10/214; APS vi(ii) 696 and x 260–5. 68  RPS 1645/7/24/38; APS vi(i) 451–3. 69  RPS 1662/5/71; APS vii 406–8. 70  In another case parliament was reminded that omnis iurisdictio praesupponit ius constitutionis, and in omni legitimo imperio, which is not arbitrarie, ius redditur (RPS 1661/1/220; APS vii 168–77). 71  RPS 1695/5/145; APS ix 412–15. For a few examples of use of the maxim, derived from Digest 4.4.16.pr., see Hostiensis (Henricus de Segusio), Lectura super quinque libros Decretalium, Strasbourg, 1512, f. 104v; Dominicus Guerreus (ed.), Rotae auditorum decisiones novae, antiquae et antiquiores, Venice, 1570, p. 17; Petrus Iacobus, Aurea practica libellorum, Cologne, 1575, p. 374. 67  RPS



Adjudication in the Scottish Parliament, 1532–1707203

in by way of appeal, according to the order of law’.72 Indeed, the hope was expressed that since protestations were now admitted the estates would ‘not onely refuse the desire of this petition but do it with a mark of their displeasure that all such may be discouraged in time comeing’. Not surprisingly, no trace has been found in the parliamentary records of the sixteenth and seventeenth centuries of any argument along the lines that adjudicative authority ought as a matter of principle to be exercised separately from legislative authority. Moreover, it would be a mistake to conclude from the force with which some of the arguments noted above were presented that they reflected the received wisdom either of the estates or of the lawyers who appeared before them. That parliaments lacked the time to deal with litigation is evident from the high proportion of cases that were raised without a final decision being reached there – of the four hundred and forty cases known to have been raised, an act or decreet disposing of the dispute between the parties was recorded in just one hundred and seventy-three – and that other courts were often believed to be more suited to the handling of civil litigation is evident from the large number of cases remitted for final decision to another body – one hundred and fifty-three of the remaining two hundred and sixty-seven cases.73 It does not follow, however, that parliament was believed as a matter of law or custom to have surrendered its jurisdiction in all civil actions to the session. There were relatively few cases in which it was argued that parliament must leave adjudication to the session, and fewer still in which the argument was successful.74 Sometimes the estates were persuaded that there were exceptional circumstances making an action ‘absolutelie different from uthers and meirlie publict and parliamentarie’, or making it ‘necesser and propper to this parliament to interpose thair authority’.75 More often, though, the response was simply along the lines that all civil 72  RPS

1700/10/214; APS x 260–5. is of course less likely that decreets were delivered without being recorded than that actions were raised but left unrecorded because no significant progress was made with their handling. Thus if the true number of actions raised is likely to have been higher than four hundred and forty, the proportion of those not brought to a decision is also likely to have been higher. In the remaining one hundred and fourteen cases no record has been found of either a final decision being made in parliament or the case being remitted to the session, privy council, a burgh authority, a panel of arbiters or some other body. It also needs to be remembered that even when parliament did reach a decision on an issue raised, other issues arising from the case were sometimes remitted for consideration to another body. 74  The obvious cases have all been mentioned above. There may of course have been others in which this line of argument is not apparent from the record, but there are many in which no trace of it has been found despite what appears to have been a fairly detailed and comprehensive record being kept. 75  RPS A1649/1/12 and 1661/1/406; APS vi(ii) 696–7 and vii 295–9. 73  It

204

J. D. Ford

actions could properly be raised before the estates because ‘the heigh court of parliament containes in it all the jurisdictions of the nation’, or that the particular action raised should be heard because in the past ‘parliament had sustained processe far more civill’.76 The reality was that in all but a handful of the cases raised before them the estates proceeded to exercise jurisdiction without any hesitation. The exceptional cases were those in which the jurisdiction of parliament was challenged, typically at the beginning of a parliamentary session. It was more usual when cases were raised for the parties or their representatives to engage immediately in discussion of the substantive issues, and the more often this happened, the more difficult it became for defenders to argue that the estates lacked jurisdiction. While the parliaments of the early modern period may have come to exercise legislative authority more regularly than adjudicative authority, they continued to hear cases with sufficient frequency, and without any challenge to their jurisdiction, for it to be implausible to argue that they had surrendered their jurisdiction to the session. Although it was exceptional for defenders to question the jurisdiction of parliament, it was rather more common for pursuers to explain why they were raising actions there. It was often observed that actions were being raised in parliament because ‘the ordinary judicatories are not patent for the present’, ‘be reason of the surcease of the ordinary course of justice’, or ‘in respect of the cessation of the ordinary course of justice’.77 One pursuer explained that ‘in respect of the not sitting of the sessioun’ she could ‘gett no proces’ against the defender, and another similarly explained that ‘throw the not sitting of the sessione I am frustrate’.78 In one action it was complained that the defender was ‘making use and takeing occasione of the not sitting of the lords of sessione’, while in another it was insisted that parties should not ‘suffer prejudice be the want of the ordinary courts of justice’.79 In several actions pursuers asked for evidence to be taken ‘as the lordis of sessioune usuallie does’, so that it might be available to the judges when ‘the ordinary course of justice’ was restored.80 As some parties painstakingly spelled out, the ordinary courts did not sit ‘in time of parliament’, when those involved in the administration of justice often became members of the estates, and 76  RPS

1661/1/220; APS vii 168–77. 1649/1/383, 1661/1/81, 1661/1/99, 1661/1/106, 1661/1/206, 1661/1/217, 1661/1/373, 1661/1/454 and 1689/3/141; APS vi(ii) 725, vii 39, 51–2, 55–6, 131, 165, 276–7 and 331–4 and ix 53. 78  RPS 1645/1/143 and A1649/1/99; APS vi(i) 358–9 and vi(ii) 715–16. 79  RPS 1645/1/99 and 1661/1/81; APS vi(i) 333–6 and vii 39. 80  RPS 1649/1/396, A1649/1/111, 1661/1/59 and 1661/1/204; APS vi(ii) 348–9 and 722 and vii 27 and 129–30. 77  RPS



Adjudication in the Scottish Parliament, 1532–1707205

when the estates gathered in the building normally used by the session.81 The difficulty this created for litigants who felt unable to wait for the courts to reopen was exacerbated in periods when parliament met more frequently or at greater length, as it did between 1639 and 1651. It is not entirely coincidental that of the four hundred and forty cases included in this survey, one hundred and eighty-three were raised in this period, with another one hundred and thirty-one being raised at the start of the 1660s and 1690s, when there was further disruption of the ordinary courts. As was noted in the 1640s, the problem was not simply that parliament was meeting more regularly but that litigants were being prevented from approaching the courts by the ‘trubles of the countrey’.82 Those who turned to parliament for help sometimes explained that they were being prevented from seeking justice in the usual way by ‘the present troubles’ or ‘thir troublesome tymes’.83 A pursuer at the beginning of the 1660s complained that the defenders in the action he raised had been able to retain land they had unlawfully possessed ‘throw the iniquity of the times’.84 At the beginning of the 1690s it was noted again that it would ‘not bee convenient now in the tyme of troubles for the lords of session to sitt constantly and proceede in all processes when the lieges are necessarily diverted from attending that judicatorie’.85 In petitioning parliament in 1689 one litigant explained that he was prevented from seeking redress ‘befor any ordinary judicatories in the present juncture of affaires in this kingdome’.86 As these references to the ‘troubles’ suggest, the motivation for bringing cases before parliament may sometimes have been at least partly political. For example, when Martin Leitch raised an action against the magistrates of Edinburgh in 1650 to recover payment of a debt, the reason he gave for doing so was not that the ordinary courts were closed but that he was being refused the letters of horning usually issued against recalcitrant debtors because of doubts about the legitimacy of the debt incurred.87 Money had been borrowed in 1648 so that the magistrates of Edinburgh could help finance a military expedition to restore Charles I to the throne he had effectively lost 81  RPS

1644/6/72 and 1661/1/40; APS vi(i) 185–7 and vii 20. CS1/5, f. 125v, and CS9/8, at 4 January 1642. On the disruption of the session during the revolutionary period of the late 1630s and 1640s see D. Stevenson, The Covenanters and the Court of Session, 1637–1650, in: Juridical Review, 1972, pp. 227–47. 83  RPS 1644/6/195, 1649/1/385, 1649/1/451 and A1650/11/25; APS vi(i) 185–7 and vi(ii) 341–2, 375–6 and 638–40. 84  RPS 1661/1/73; APS vii 34–5. 85  RPS 1690/4/72; APS ix 160. 86  RPS 1689/3/167 and M1689/3/24; APS ix 62. 87  RPS C1650/11/1–2; APS vi(ii) 634–5. 82  NRS,

206

J. D. Ford

in the first civil war in England.88 After the expedition had failed and the king had been executed, a newly formed burgh council had asked the leaders of the kirk, who had always opposed the expedition, ‘whidder they sould in conscience pey any part of the 40,000 lib. borrowed be the magistratis and counsall of Edinburgh for the tyme’.89 They had asked the kirk leaders ‘to assisst us befoir the lordis of sessioun and any uther judge competent for our liberatioun’, and had received a forceful declaration that they ‘sould not in conscience pay any pairt of the foirsaid soume nor interpose thair authoritie for paying of the same’, as doing so would involve them ‘in the guilt of accessioun unto and complyance with the lait unlawfull Engadgment’. Yet the Engagement, as the agreement to support Charles I was known, had been approved by parliament in 1648, and by the summer of 1650 his eldest son had been declared king and brought to Scotland.90 Leitch therefore raised his case before parliament and asked for letters of horning to be issued either against the present magistrates or against the individuals who had originally received the loan, ‘as the parliament in reasone and equitie sould find maist expedient’. An advocate appearing on behalf of the magistrates before ‘the committie of billis’ proposed that both the supplication received from the pursuer and the response previously obtained from the kirk leaders ‘might be red and advised in open and plaine parliament’. The committee ‘thought that they could not represent the samyne, nor mak any such reporte therof to the parliament, without they did represent ther owne opinione anent the premises’, which was that the present magistrates should be made to repay the loan with interest. Making payment under a court order, they explained, would ‘nawayes importe ther acknawledgment of the lawfullnes of the sinfull Ingadgment’. Six months later the report was referred to the committee of estates, then operating in place of the privy council, which in June 1651, after another six months, approved the recommendation and ordered immediate repayment.91 Ten years later, when the monarchy was restored in both Scot88  M. Wood/R. K. Hannay/H. Armet (eds.), Extracts from the Records of the Burgh of Edinburgh, 1589–1718, vol. 5, Edinburgh, 1927–1967, p. 150. 89  A. Peterkin, (ed.), Records of the Kirk of Scotland, Containing the Acts and Proceedings of the General Assemblies, Edinburgh, 1838, pp. 496–506 and 509; D. Laing (ed.), The Letters and Journals of Robert Baillie, vol. 3, Edinburgh, 1841–1842, pp. 31–41 and 57–8; A. F. Mitchell/Christie (eds.), The Records of the Commissioners of the General Assemblies of the Church of Scotland, 1646–1652, vol. 1, Edinburgh, 1892–1909, pp. 373–82, 403–5 and 485–512, and vol. 2, p. 336; Wood/Hannay/Armet (eds.), Extracts from the Records of the Burgh of Edinburgh, vol. 5, pp. 224–5. 90  D. Stevenson, Revolution and Counter-Revolution in Scotland, 1644–1651, London, 1977, pp. 82–179. 91  Wood/Hannay/Armet (eds.), Extracts from the Records of the Burgh of Edinburgh, vol. 5, pp. 298–302.



Adjudication in the Scottish Parliament, 1532–1707207

land and England after a decade of republican rule from south of the border, several other claims relating to the Engagement were revived.92 Sir Archi­ bald Stirling of Carden was typical in claiming that he had raised a troop of horse in 1648 ‘in obedience to the lawes and acts of parliament’, that he had been forced in 1649 to pay those who supplied the horses for their use, and that this was contrary to the terms on which those involved in the expedition into England had capitulated, which stated that they would be immune from action in ‘their lyves, estates, titles of honor or the freedom of their persones’.93 After waiting twelve years for a favourable moment, Stirling petitioned parliament successfully in 1661 to have the suppliers of the horses ordered to repay the money they had received from him with interest. Twenty-eight years after the restoration of the monarchy, when James VII and II was removed from the thrones of Scotland and England, a convention of the estates in Edinburgh approved the terms of a document known as the Claim of Right, which set out the conditions on which the throne of Scotland was offered to William II and Mary II.94 The document listed various practices that were considered to be ‘contrary to law’, such as prosecuting people for treason ‘upon stretches of old and obsolete lawes’ and ‘frivolous and weak pretences’, or ‘the imposeing of extraordinary fynes’, and in particular ‘the fyneing of husbands for their wives withdrawing from the church’. As the document proceeded to declare that instances of these practices should ‘be considered, and the pairties laesed be redressed’, and as it did not explain how this might happen but did assert ‘the right of the subjects to petition the king’, numerous parties raised actions under the Claim of Right before the parliament assembled in 1690.95 Sir William Scot of Harden, for example, complained that in the early 1680s he had been ‘fyned in exorbitant soumes for his wifes alleadged guilt of church irregularities contrair to law’, and that Sir George Mackenzie of Rosehaugh, who as ‘lord advocate’ had borne responsibility for the prosecution and persecution of non-conformists, had later procured ‘a gift frae the late King James of 1,500 pounds sterling out of your 92  RPS 1661/1/273, 1661/1/274, 1661/1/319, 1661/1/321, 1661/1/353, M1661/ 1/35, M1661/1/54, M1661/1/60 and M1661/1/66; APS vii 205–7, 236–9, 267 and appendix 60, 71, 76 and 78. 93  RPS 1661/1/101 and M1661/1/21; APS vii 52–3 and appendix 19; T. Birch (ed.), A Collection of the State Papers of John Thurloe, vol. 1, London, 1742, p. 104. 94  RPS 1689/3/108; APS ix 37–41. 95  For examples additional to those discussed below, see RPS 1690/4/137, A1690/4/3–4, A1690/4/6, A1690/4/9, A1690/4/11–12, A1690/4/15, A1690/4/27, M1690/4/12–13, M1690/4/23, M1690/4/30–2, M1690/4/34, M1690/4/39, M1690/4/42, A1693/4/12, M1693/4/6, M1693/4/8, 1695/5/28, 1695/5/60, M1695/5/6 and M1695/ 5/14; APS ix 209–10, 355 and 365 and appendix 39–41, 43–4, 46, 65, 75–6, 79, 85, 99, 103, 145, 152, 156–7, 159, 164 and 167.

208

J. D. Ford

petitioners fine’.96 Mackenzie, who by then had left the country, was nevertheless summoned to appear and answer the petitioner’s claim for repayment of the sum granted with interest.97 Having failed to respond, he was summoned again before the parliament assembled in 1693, then after his death his son was summoned to appear with his tutors and curators before the parliament assembled in 1695.98 When they still failed to appear, the parliament issued a decreet in their absence, accepting from documentary evidence produced for Scot that the gift had been received by Mackenzie, and also that Scot had been ‘most unjustly and illegally fyned’, notwithstanding that the fine had been approved after adjustment by the privy council.99 Another case related to a fine imposed more directly by the privy council.100 In 1674 the king had written to the convention of the royal burghs of Scotland, objecting to a growing practice of electing representatives who did not reside in the towns represented.101 When the burghs responded by expressing ‘as well the grivances as the rights and priviledges of ther estate’, the king told his privy council to punish those identified as ‘the contryvers, advysers and promoters of that insolent letter’.102 In the following year the provosts of three burghs were prosecuted, convicted and fined, including William Anderson, who had represented Glasgow at the convention.103 By then both the convention and the town council in Glasgow had disowned ‘that unduetifull letter’, but in 1689 the convention decided that redress should be sought for the provosts who had ‘suffered fyning and imprisonment as acting dewtifullie as members of the convention of borrowes in 1675’.104 Compensation was pro96  RPS

A1690/4/2; APS ix appendix 39. M1690/4/13; APS ix appendix 146. 98  RPS M1693/4/15, 1695/5/28, 1695/5/34 and M1695/5/6–7; APS ix 355, 357 and appendix 82 and 99–100. 99  RPS 1695/5/35; APS ix 357–60; Hume Brown/Paton/Balfour-Melville (eds.), Register of the Privy Council, 3rd series, vol. 8, pp. 276–8. See too RPS M1696/9/6; APS x appendix 5. 100  RPS A1693/4/8 and M1693/4/8; APS ix appendix 76–7. 101  J. D. Marwick/T. Hunter (eds.), Records of the Convention of the Royal Burghs of Scotland, vol. 3, Edinburgh, 1866–1918, pp. 639–41. Of course, the letter was actually written by the king’s powerful secretary, the earl of Lauderdale. 102  Hume Brown/Paton/Balfour-Melville (eds.), Register of the Privy Council, 3rd series, vol. 4, pp. 318–19; Marwick/Hunter, Records of the Convention of the Royal Burghs, vol. 3, pp. 641–2. 103  Hume Brown/Paton/Balfour-Melville (eds.), Register of the Privy Council, 3rd series, vol. 4, pp. 319–20, 328–9, 347, 357, 367–76 and 396. 104  Marwick/Hunter, Records of the Convention of the Royal Burghs, vol. 3, pp. 644–5 and 648–52, and vol. 4, p. 96; J. D. Marwick/R. Renwick (eds.), Extracts from the Records of the Burgh of Glasgow, 1573–1759, vol. 3, Glasgow, 1876–1911, p. 192; J. D. Marwick (ed.), Charters and Other Documents Relating to the City of Glasgow, vol. 2, Glasgow, 1897–1906, p. 395. 97  RPS



Adjudication in the Scottish Parliament, 1532–1707209

vided by two of the burghs, and when William Anderson’s son approached the convention itself he was advised to seek redress from the town council of Glasgow, which agreed to pay him ‘the soume of ane thousand merks, on the accompt of the fyne imposed’.105 Because the fine had amounted to ‘6,000 merks’, and Anderson’s son believed he was entitled in addition to ‘interest and damnages’, he raised an action before parliament, pointing out that under ‘the Claime of Right’ reparation was promised for ‘all such losses as happned in these late tymes’, and that having petitioned the convention and town council he had ‘been only sent backward and forward, without any reparations from either of them’. The conclusion he felt compelled to draw was that ‘a caice of this nature is in effect only proper to be determined by this high and honourable court of parliament, to whom it undoubtedly belongs to consider and repair such losses and wrongs for which noe ordinary remeid can be found’. A summons was issued to the magistrates of Glasgow, but rather than grant a decreet, the estates made it a condition of an act authorising the imposition of a charge on the sale of ale and beer in the city that ‘the sum of nyne thousand merks’ be paid to Anderson’s son.106 It was the Claim of Right that confirmed the legitimacy of presenting protestations to parliament for remeid of law. Behind the pressure for approval of some sort of appeal process lay common complaints about ‘the filling of our Courts of judicatorie, especiallie our Session (which is the supream for administration of justice) with ignorant and insufficient men’.107 It was pointed out that ‘persones are promoted to be lords of session who are no lawyers, whose breeding and education did not in the least enable them for it’, and who ‘on the contrare were educate for Souldiers, Merchants and other such Extranious Employments’, the only possible explanation being a desire ‘that there might be plyable Men put in to serve some State turn’, judges who could be counted upon by government ministers ‘to give a Colour of Law to their Proceedings, to the amusing of the undecerning People’.108 ‘The Substance of the Countrey’, it was complained, ‘hath been exhausted by per105  Marwick/Hunter, Records of the Convention of the Royal Burghs, vol. 4, pp. 79 and 158–9; Marwick/Renwick, Extracts from the Records of the Burgh of Glasgow, vol. 4, p. 67; Marwick, Charters and Other Documents Relating to the City of Glasgow, vol. 2, p. 392. 106  RPS 1693/4/129 and M1693/4/8; APS ix 328 and appendix 92; Marwick, Charters and Other Documents Relating to the City of Glasgow, vol. 2, pp. 246–9 and 408. 107  Anon., An Accompt of Scotlands Grievances by Reason of the Duke of Lauderdales Ministrie, n.p., n.d., pp. 20–1; E. W. M. Balfour-Melville (ed.), An Account of the Proceedings of the Estates in Scotland, 1689–1690, vol. 1, Edinburgh, 1954–1955, pp. 31–2; NRS, GD406/2/635/6, GD406/635/16–17 and GD406/2/640/4; Edinburgh University Library, La. II 89, f. 139; National Library of Scotland (NLS hereafter), MS 7034, f. 65–6.

210

J. D. Ford

sons of all Ranks going to Court for Redress, universally to no purpose’, for ‘never were decisions so uncertain, so injurious and partial’.109 If one response was an abortive attempt by the estates to regain control of appointments to the session, another was their more successful recovery of jurisdiction over cases raised at second instance.110 A recurring feature of the protestations submitted to parliament in the early 1690s was the suggestion that the decisions appealed against had been delivered ‘under the colour and pretext of justice’, and while litigants were later discouraged from casting aspersions on the integrity of the lords of session, it may be that the unstated motivation behind the raising of other cases, at both second and first instance, was dissatisfaction with the quality of justice administered in the ordinary courts.111 Traces of the same kind of thinking can be detected in the intervention of the privy council in actions before the session in the late 1570s, when the remission of one case to ‘jugeis unsuspected’ seemed to give credence to the complaint that it was being pursued before the lords of session ‘under cullour of law’, and when the defender in another case transferred to the estates was himself ‘ane of the lordis of sessioun’.112 It may also be that dissatisfaction with the quality of justice available elsewhere explains two peaks in the incidence of litigation before parliament. The number of cases raised before particular meetings of the estates rarely rose into double figures, though as many as thirty-one cases can be found in the records of the 1690 parliament, when the grievances recorded in the Claim of Right were being addressed.113 The two exceptional parliaments, however, were those held in 1649, when no fewer than eighty cases were heard, and in 1661, when as many as eighty108  Anon., A Representation to the High Court of Parliament of Some of the Most Palpabale Grievances in the Colledge of Justice, n.p., n.d., pp. 1–3 and 7–8; NRS, GD406/2/640/5. 109  Anon., Some Weighty Considerations, Humbly Proposed to the Honourable Members of the Ensuing Assembly of the States of Scotland, n.p., n.d., pp. 5–6; Anon., Some Particular Matter of Fact Relating to the Administration of Affairs in Scotland under the Duke of Lauderdale, n.p., n.d., p. 4; Anon., Some Farther Matter of Fact Relating to the Administration of Affairs in Scotland under the Duke of Lauderdale, n.p., n.d., p. 4; NRS, GD406/2/635/3; NLS, MS 9375, f. 4r and 22. 110  RPS A1689/6/18; APS ix 104; Balfour-Melville (ed.), Account of the Proceedings of the Estates in Scotland, vol. 1, pp. 176–81; Anon., An Address Sign’d by the Greatest Part of the Members of the Parliament of Scotland, n.p., n.d., p. 6; W. L. Melville (ed.), Leven and Melville Papers, Edinburgh, 1843, pp. 188–90. 111  On protestations in the early 1690s see Ford, Protestations to Parliament for Remeid of Law, pp. 73–84. 112  RPS 1578/7/31, 1578/7/34 and 1579/10/62–4; APS iii 111–14 and 163–5. 113  Twenty-eight cases have been found in the records of the 1641 parliament, but in no other meeting apart from those mentioned does the number of cases raised seem to have risen above twenty. The ten or more cases raised in 1650, 1651, 1662, 1693 and 1695 may be attributed to the same causes as the peaks of 1649, 1661 and 1690.



Adjudication in the Scottish Parliament, 1532–1707211

four were heard. A central aim of the parliament assembled in 1649 had been ‘the purgatioun and reformatioun of our judicatories’, which was to be achieved by the ejection from office of any judges who had supported the Engagement or were inclined towards ‘uncleannesse, brybery, swearing, drunkennesse or deceiving’.114 Eight of the fifteen lords of session were in the end removed and replaced with judges ‘not onlie of knowne ability bot also of approven integritie and constant affectioun to the cause and good and Christian conversatioun’.115 In 1661 an act was passed to provide for the review of the decisions delivered during the previous ten years by the court established by the republican government, ‘because the judges or commissioners for administration of justice did sometymes proceid in ane arbitrary way, contrare to law and justice, and at other times, many of them being strangers and ignorant of the law, did proceid unwarrantably and unjustly betwixt parties’.116 Both parliaments thus made it clear that they considered the administration of justice to have been deficient, and in doing so they may have given litigants cause to believe that justice was more likely to be received if they approached the estates themselves.117 The high peaks of litigation detected in 1649 and 1661 may be connected with another striking finding. It was in 1649, while the session was being staffed with judges of ‘Christian conversatioun’, that the magistrates of Edinburgh were able to resist an action for repayment of a loan by having the matter treated as a case of conscience, until a year later the lender was able to persuade parliament that payment was required after all ‘in reasone and equitie’. The commissioners for the adminsitration of justice who were believed in 1661 to have proceeded ‘in ane arbitrary way’ had actually been instructed to determine cases ‘according to the laws of Scotland, equity and good conscience’.118 If the parliamentary records are searched for the use of terms like ‘equity’ and ‘conscience’, what emerges is that they were used on more than forty instances in only two meetings of the estates.119 Although 114  RPS

1649/1/43 and 1649/1/154; APS vi(ii) 143–7 and 207. efforts made by the newly constituted court to reform its own practice see Anon. (ed.), The Acts of Sederunt of the Lords of Council and Session, Edinburgh, 1740, pp. 20–6. 116  RPS 1661/1/117; APS vii 62–3. 117  Part of the explanation for the peaks of litigation in 1649 and 1661 must remain that there were interruptions in the administration of justice while the session was reformed or restored, but given that these were not the only years in which the sittings of the courts were disrupted this cannot be a sufficient explanation in itself. 118  M. A. E. Green (ed.), Calendar of State Papers (Domestic Series), 1649–1660, vol. 5, London, 1875–1886, pp. 304 and 320. 119  The figures given relate to the number of distinct records in RPS in which these terms appear, not the number of times the terms appear. 115  For

212

J. D. Ford

the significance that may be attached to the use made of particular terminology is obviously limited, what seems striking is that the years identified are again 1649 and 1661.120 The language of equity and conscience was not confined in these years to the discussion of actions raised by private parties, but it is often found in the records of litigation, and not only in these years. One example is an action raised in 1661 by the son and heir of William Baillie, who had commanded the infantry in the army that marched south in 1648 to recover the English throne for Charles I, against William Osborne, another officer in the same army.121 After both officers had been imprisoned by the English, it was alleged, Osborne had ‘most inhumanelie, unchristianly and unjustly’ obtained a restraining order requiring Baillie to pay him three hundred pounds before he was released, ‘which wes against all law, equity and reasone’. Osborne was ordered to repay the money he had received with interest. Similar language was used in an action raised in the same year by Walter Watson against James Cleland of Foscan.122 Under a bond granted to Watson’s father, four hundred merks had been owed with thirty-six years’ interest by a debtor who was unable to pay. Mediators had arranged for Cleland, one of the cautioners (sureties or guarantors) of the loan, to pay Watson three hundred merks in exchange for delivery of the bond, but for the next four years Cleland had ‘shifted to receave the said band till it wes prescryved’ under acts of parliament providing for obligations to lose force after forty years.123 He had then raised an action against Watson before the commissioners for the administration of justice, maintaining that he had been unable to obtain recompense from the other cautioners since he had not been given the bond. Decreet had been granted in his favour and Watson had accepted an arbiter’s ruling that he must pay Cleland seven hundred merks. In 1661 Watson managed to persuade the estates that he had been compelled to pay by ‘the iniquitie of the tymes and the power the said defender had with the late usurpers’, and that Cleland was obliged ‘in justice and equitie’ to repay the amount he had received with interest. In another action concerned with a missing document the petitioner argued that ‘the samen of all equitie and 120  The terms have been found in seventy-nine acts or decreets issued in 1649 and in another forty-one issued in 1661. The peak in 1649 seems particularly significant, for reasons that will be returned to elsewhere. The terms also appear thirty-five times in the records from 1641, twenty-three times in those from 1644, and twenty-eight times in those from 1645. In no other year did the figure rise above twenty. 121  RPS 1661/1/321 and M1661/1/60; APS vii 238–9 and appendix 76; C. S. Terry (ed.), Papers Relating to the Army of the Solemn League and Covenant, 1643–1647, vol. 2, Edinburgh, 1917, p. 387; E. M. Furgol, A Regimental History of the Covenanting Armies, 1639–1651, Edinburgh, 1990, pp. 196 and 419–20. 122  RPS 1661/1/147 and M1661/1/25; APS vii 79–80 and appendix 29. 123  RPS 1469/18, A1474/5/9 and 1617/5/26; APS ii 95 and 107, and iv 543–4.



Adjudication in the Scottish Parliament, 1532–1707213

good conscience aucht to be supplied to me’.124 Many other petitioners made similar reference to ‘reassoune and equitie’, ‘equitie and justice’ or ‘equitie, conscience and reasone’.125 It would, of course, have been strange for petitioners to seek decreets from parliament that were anything other than just and equitable, and often the suggestion was that a decision in accordance with the laws of Scotland would also be in accordance with justice, equity and good conscience. Yet there were also cases in which something else was clearly intended. For instance, in an action raised in 1641 by William Baillie, seven years before he took command of the infantry assembled under the Engagement, it was objected that he was laying claim to an estate to which the defender was plainly entitled as a matter of law.126 He was arguing that the estate should be granted to him ‘upone certane pretendit formalities of civill law, nawayes receaved be the lawis, customes and practick of this kingdome’, or alternatively, if that line of argument were to prove unsuccessful, that ‘ane comitte of judicious and conscionable judges’ should be appointed and instructed ‘not so much to consider the strict poyntis and formalities of law, bot rather to proceed and determine in the said matir according to equitie and the law of God and nature’. Baillie’s case does not seem to have been pursued to a conclusion. James Smith, on the other hand, did manage to secure a decreet in a case he raised in 1690. He had been commissioned to construct a new church in the Canongate in Edinburgh after parliament authorised the use of funds left to the city for the construction of a church in the Grassmarket, where none was required.127 When more expenditure was incurred than had been anticipated, Smith approached the privy council, explaining that the magistrates of the burgh ‘scrouple to advance any more money towards the accomplishment of the saids works without warrand’, and then, since he remained unpaid, he approached the estates, ‘being confident that the great court of parliament (in whom did principally recide the nobile officium of seeing justice done to all men, and who had power to relaxe from the rules of common law when eq124  RPS 125  RPS

1645/11/173; APS vi(i) 664–8. 1649/1/396, 1649/5/106 and 1649/1/239; APS vi(ii) 348–9, 420 and

247–61. 126  RPS A1641/8/110 and M1641/8/48, 69 and 71; APS v 682, 696 and 700; http:\\ www.oxforddnb.com, s.n. Baillie, William. This was one of the cases mentioned above in which the jurisdiction of the estates was challenged on the basis that the question of law involved should be dealt with in a straightforward way by the judge ordinary. 127  RPS 1681/7/59; APS viii 357–8; Hume Brown/Paton/Balfour-Melville (eds.), Register of the Privy Council, 3rd series, vol. 13, pp. xxii, xlv and xlviii; Wood/Hannay/Armet (eds.), Extracts from the Records of the Burgh of Edinburgh, vol. 6, pp. 238–9, and vol. 7, pp. 10, 52, 82, 149 and 185; R. S. Wright, The Kirk in the Canongate, Edinburgh, 1958, pp. 78–80.

214

J. D. Ford

uity required the same) wold not suffer any man to be ruined by the undertakeing soe pious a worke’.128 In another case a supplicant complained about a new tenement building about to be constructed in Edinburgh, imploring the estates to intervene so that ‘his windowes and lights might not be prejudged by the new building, notwithstanding of any common rule or practice that might be obtruded to the contrar’.129 Although it was replied that the supplicant seemed to be admitting that the law favoured the defenders, who were simply exercising ‘their right and propperty of the ground’, the estates found that the case was ‘singular’ and forbade further construction.130 In 1681, following the condemnation of the marquis of Argyll for treason, it was argued that his debts should still be paid from his estate since, although ‘strict law owns not creditors, yet our parliaments have had great regard to equity in such cases’.131 In the same year the earl of Airlie persuaded parliament to pass an act declaring that his opponent in an action before the session should not be allowed to plead the defence of prescription that would otherwise have been available to him.132 The lords of session found another way to dismiss the action, and in 1690 the act of parliament was rescinded.133 It was argued then that the act ‘must either have proceeded by way of 128  Hume Brown/Paton/Balfour-Melville (eds.), Register of the Privy Council, 3rd series, vol. 14, p. 22; RPS 1690/4/50, 1690/4/71, M1690/4/18, M1690/4/23 and M1690/4/29; APS ix 149 and 159–60 and appendix 148–9, 152 and 156. 129  RPS 1695/5/223, M1695/5/28 and M1695/5/37; APS ix 475–8 and appendix 118 and 124. 130  The crucial finding was that the building in which the supplicant resided had been constructed under a royal privilege exempting its builder from action, ‘notwithstanding of any lawes, statutes, canons etc. made, or to be made, in the contrar’. On this building see C. B. B. Watson, Notes on the Names of the Closes and Wynds of Old Edinburgh, in: Book of the Old Edinburgh Club, 12, 1924, p. 27. However, see too the earlier case about ‘lights’ raised by Matthew Cumming against John and Ninian Anderson, in RPS 1661/1/222 and M1661/1/36; APS vii 178–9 and appendix 61; Marwick/Renwick, Extracts from the Records of the Burgh of Glasgow, vol. 2, pp. 465–6 and, vol. 3, p. 263; C. D. Donald, Dowhill’s Land, in: The Regality Club, 1889, pp. 1–7, and Wooden Houses in Close No. 28 Saltmarket, in: The Regality Club, 1889, pp. 26–9. 131  RPS C1681/7/19, C1681/7/21, C1681/7/27 and C1681/7/30–1, with ‘popup’ note at 31; Lauder, Decisions of the Lords of Council and Session, vol. 1, p. 151; Marwick/Renwick, Extracts from the Records of the Burgh of Glasgow, vol. 3, pp. 294, 300, 308, 318 and 320–1; Wood/Hannay/Armet (eds.), Extracts from the Records of the Burgh of Edinburgh, vol. 7, pp. 242–4. In support of the argument, reference was made to RPS 1600/11/21; APS iv 227; and also to Code 10.7.1. 132  RPS 1681/7/56, C1681/7/21, C1681/7/26, A1681/7/17 and M1681/7/17; APS viii 347–8. 133  Lauder, Decisions of the Lords of Council and Session, vol. 1, p. 483; Sir Roger Hog, Decisions of the Court of Session, Edinburgh, 1757, p. 159; Morison (ed.), Decisions of the Court of Session, vol. 8, p. 6666; M. P. Brown (ed.), Supple-



Adjudication in the Scottish Parliament, 1532–1707215

judicature’, in which case the action ought itself to have been raised in parliament, ‘or otherwayes by way of legislatione’, in which case it should have been framed ad futura et non ad praeterita.134 When the advocate Roderick Mackenzie argued in 1690 that a case should be reduced ‘to the standart of equity, without respect to the former lawes’, he also declared that what was sought from parliament was ‘ane extraordinary remedy’.135 It has already been seen that when William Anderson’s son sought compensation for the fine imposed on his father, he remarked that it was parliament’s prerogative ‘to consider and repair such losses and wrongs for which noe ordinary remeid can be found’, and he was not alone in asserting that parliament was ‘the only court that could give the petitioner justice’.136 John Kerr asked to have a complaint about fraud heard there since behaviour ‘of this nature is hardly discoverable by ordinary methodes, bot doeth indeed deserve a parliamentary cognition’, while Walter Cheisly argued in another case of fraud that ‘the effects of so mischeivous a designe in all reason ought to be prevented, and cannot be no otherways done but by the interposition of the high and honourable court of parliament’.137 It was similarly maintained on behalf of Lady Harden that her case ‘properly and justly deserves the consideration of the high court of parliament, being so circumstantiate as former lawgivers and judges never thought upon’.138 After the earl of Queensberry pursued an action before the lords of session for the reduction of a ‘band granted be him, blank in the creditors name’, it was claimed before the estates that he was ‘noways secured thereby, sieing the foirsaid band is yet keept up and conveyed from hand to hand, and may be filled up in the creditors name at their pleasure’.139 As he remained ‘extreamly prejudged, and cannot remeid himself in the common course of law before the judge ordinar’, he sought and obtained from parliament an order for the production and delivery of the document itself. When Sir William Primrose of Carington was found to be ‘afflicted with a palsie, which affects ment to the Dictionary of Decisions of the Court of Session, vol. 3, Edinburgh, 1826, p. 653. 134  RPS 1690/4/168, M1690/4/23 and M1690/4/34; APS ix 226–7. For earlier legislation believed to support the latter point, drawn from C.1.14.7, see RPS 1585/12/19 and 1593/4/45; APS iii 378 and iv 23; Clyde (ed.), Hope’s Major Practicks, vol. 1, p. 4. One act stated that ‘of all equitie and ressone all lawes, actis and constitutionis of parliament aucht onlie to have effect in sic caices as happynnis to follow efter the making thairof’. 135  RPS 1690/4/180; APS ix 162–3. 136  RPS 1693/4/81; APS ix 285–99. 137  RPS A1690/4/30 and 1693/4/68a; APS ix 272–4 and appendix 66–7. 138  RPS 1693/4/80; APS ix 284–5. 139  RPS 1681/7/60, C1681/7/12, C1681/7/34 and C1681/7/36; APS viii 358–9.

216

J. D. Ford

his memory and judgement and renders him altogether unfitt and uncapable of business’, his family asked the estates to intervene, ‘seeing that he neither being idiot nor furious, a tutorie dative cannot be obtained, and there is no remedy in law provided applicable to his case and condition’.140 The estates agreed that it would be ‘most just and proper’ for them ‘to provide a remedy’, as they did again when they heard that Alexander Irvine of Drum, being ‘fatuous’, was ‘incapable of manageing his own affairs’.141 Sir James Ramsay of Logie complained that when he raised an action of debt against the earl of Seaforth before the estates, the defender used ‘such promises and fair flatteries’ that the case was prolonged ‘untill that session of parliament was up’, and that despite then raising an action before the privy council, where the earl had indulged again in ‘evasive and equivocal words’, the matter had still ‘not come to any farther issue’.142 It was therefore necessary to request ‘some extraordinary remedy, which is most proper for this high court to provide’, as would be recognised when ‘the justice and equity of the debt’ was made known. Jean Home likewise maintained that the privy council had been unable to provide her with an adequate remedy.143 She understood that her husband had died while travelling to the Netherlands, but proving that he was no longer alive and that she was entitled to the provision made for her in a marriage contract was difficult because his fellow travellers all lived abroad and the ship they had travelled on had since been lost. The privy council had permitted her to draw income from her husband’s estate, subject to security being provided that anyone found to be entitled to the income would receive it, but this had not prevented one of her husband’s creditors from obtaining possession of the estate in an action before the session. The estates ordered possession to be returned to the apparent widow. Both James Ramsay and Jean Home made much of the ‘sad condition’ to which they and their children were being reduced, as did Robert Spence in 140  RPS

1685/4/85, C1685/4/34 and M1685/4/20; APS viii 495–6. 1693/4/84, M1693/4/11 and M1693/4/25–6; APS ix 301–2 and appendix 78 and 89; Hume Brown/Paton/Balfour-Melville (eds.), Register of the Privy Council, 3rd series, vol. 14, pp. 181–2, and vol. 15, pp. 67–9 and 169–73; J. F. Leslie, The Irvines of Drum and Collateral Branches, Aberdeen, 1909, pp. 131–4; D. M. Mackintosh, The Irvines of Drum and Their Cadet Lines, 1300–1750, Greenville SC, 1998, pp. 221–41. 142  RPS 1690/4/50, 1690/4/75, M1690/4/18, M1690/4/21, M1690/4/42, A1690/ 4/26, 1695/5/39, 1695/5/114 and M1695/5/8; APS ix 161, 361 and 384–6 and appendix 65, 100, 166 and 148–50; Hume Brown/Paton/Balfour-Melville (eds.), Register of the Privy Council, 3rd series, vol. 16, pp. 416, 413, 474–5 and 547–8; J. Grant (ed.), Seafield Correspondence, from 1685 to 1708, Edinburgh, 1912, p. 146. 143  RPS 1693/4/113; APS ix 322; Hume Brown/Paton/Balfour-Melville (eds.), Register of the Privy Council, 3rd series, vol. 15, pp. 329 and 715. 141  RPS



Adjudication in the Scottish Parliament, 1532–1707217

claiming that an action before the session was being deliberately delayed by the defenders, so that his family was placed in a ‘perishinge condition’.144 It has again been seen already that when Marion Maxwell sought to recover land and income from David McBrair she stated that it was in parliament that ‘the remeid and help of poor opprest widowis and orphants is to be found’.145 Anna Fowler, left with five children to raise by the death of her husband, a church minister, similarly sought an award of aliment from the estates, ‘before whom the cases of the widow and fatherless should be particularly considered’.146 Although she had already received an award from the lords of session in the context of a ranking of her husband’s creditors, it had been rendered ‘altogether ineffectual’ so far as she was concerned by the attachment of the usual condition that she find caution, and she understood that ‘the high court of parliament, being the supream judicatory of the nation’, had the ability ‘to dispence justice without being bound to the particular forms by which the inferiour courts are bound up’. Jean Cockburn’s problem was that although an award of aliment in favour of herself and her fatherless children had again been made in the session, the defender had then raised an action there to have the decreet suspended, ‘mynding therby to frustrate the supplicantis of their present subsistance and lyvieliehood, they haveing no uther meanes to live on’.147 Margaret Livingstone had not received an award of aliment in the session, but she had been awarded damages for spoliation, which the defender was failing to pay, ‘contrair to all equitie and reasone’.148 Described as ‘ane poore, young gentilwoman’, she claimed to be ‘now redacted to extreame necessitie, having nothing wherwith to live’, and to be unable ‘to subsist without the saidis estaites of parliament provyde some remeid’. Even the dowager countess of Seaforth, the daughter of an English nobleman, felt able to approach the estates as ‘a poor desolate stranger’, who had been placed ‘in hazard to be reduced to the greatest ex144  RPS A1663/6/18; APS vii appendix 100; Marwick/Hunter, Records of the Convention of the Royal Burghs, vol. 3, pp. 489 and 504; Marwick/Renwick, Extracts from the Records of the Burgh of Glasgow, vol. 2, pp. 461–2; Wood/Hannay/Armet (eds.), Extracts from the Records of the Burgh of Edinburgh, vol. 4, pp. 42 and 155; L. B. Taylor (ed.), Aberdeen Council Letters, 1552–1681, 6 vols., London, 1942–1961, vol. 4, pp. 30–1, 72–3, 120–1, 137, 193 and 311–12. 145  NAS, CS18/3, f. 23v. 146  RPS 1700/10/83, M1700/10/16 and A1700/10/12; APS x 57 and 221 and appendix 57. 147  RPS 1649/1/393 and A1649/1/110; APS vi(ii) 346–7 and 719. For another action in which the estates agreed to intervene because they found ‘this to be a caice alimentary in regaird of the present condition’ of the pursuer see RPS 1681/7/67, C1681/7/17, C1681/7/24 and C1681/7/30; APS viii 362. 148  RPS 1649/1/388, A1649/1/114, 1649/5/63 and 1649/5/125; APS vi(ii) 343, 403–4, 429 and 726.

218

J. D. Ford

tremities’.149 Granted aliment ‘by the favour and equity of the lords of session’, all she had actually received from her husband’s family had been ‘stubborn oppositione’, so that it seemed appropriate for her to request a further award, ‘and this the petitioner hoped that the parliament would find both to be just, equitable and favourable, and withall such a necessary expedient as she cannot subsist without’. Other litigants claimed to have been prevented from approaching the session in the first place by their poverty. Described as ‘poor petitioners’ and ‘strangers’, the Cunningham sisters from Ireland claimed that the defender in the action they raised, knowing they were ‘poor simple women, not capable to furnish and prosecute any law sute against him’, meant ‘to take advantage’ of them and subvert their ‘just interest, contrare to all law, equity and conscience’.150 James Urquhart likewise hoped to have his action heard in parliament, ‘he being ane poore minister, not able to waite on and waire out chairges befoir the lordis of sessioune’.151 Archibald Sinclair, himself an advocate, knew that he could raise his case in the session, but also that to do so would be ‘both difficult and tedious, and that the high court of parliament hes a greater regard to equitie then strict law, and that alsoe minors and orphands are protected and favoured by the law of this and all other civilized nations’.152 The protection of the poor, widows, orphans, strangers and clerics had originally been the responsibility of the king’s council, and had thence become the responsibility of the lords of council and session.153 As some of the cases just mentioned make clear, litigants belonging to these categories continued to receive favourable treatment from the lords of session during the early modern period, when it was observed by an anonymous author writing for an English audience that ‘the Session and colledge of Justice doth not decide strictlie secundum rigorem iuris onlye, but also secundum aequum et bonum, and in that representinge the Court of Channcery in this Kingdome’.154 Some lawyers maintained that the lords of session retained the conciliar authority both to mitigate the rigour of the law in harsh cases and to fashion equitable remedies in new cases. Others, however, were more doubtful, and

149  RPS 1704/7/52, 1704/7/109–10, M1704/7/8, M1704/7/19, A1704/7/21, 1705/6/45, 1705/6/60, 1705/6/77, M1705/6/16, M1705/6/23 and M1705/6/27; APS xi 131, 176–7, 223 and 233–4 and appendix 51–2, 60, 80, 82 and 84. 150  RPS A1690/4/32; APS ix appendix 67–8. 151  RPS 1649/1/364 and A1649/1/111; APS vi(ii) 328–9 and 722. 152  RPS 1690/4/96; APS ix 186–8. 153  MacQueen (ed.), College of Justice, p. 4; Godfrey, Civil Justice in Renaissance Scotland, p. 45; J. Finlay, Foreign Litigants before the College of Justice in the Sixteenth Century, in: MacQueen (ed.), Stair Society: Miscellany Four, p. 39. 154  Mackie/Dickinson (eds.), Relation of the Manner of Judicatores, p. 269.



Adjudication in the Scottish Parliament, 1532–1707219

their doubts were apparently shared by litigants.155 The more standardised the handling of cases in the session became, the more inclined parties became to look elsewhere for equitable relief. Likewise, the more the lords of session came to be regarded as judges ordinary, the less they were expected to provide extraordinary remedies. By the latter half of the seventeenth century the opinion was often expressed by lawyers that it would be better for the lords of session to adhere in their decisions to ‘the strict rules of justice’ and leave the decision of ‘extraordinary cases’ to the estates or privy council.156 When actions were instead remitted by the estates to the session it was often with ‘a parliamentary power’, or with the judges being ‘impoured to make use of their noble office, and to judge ex bono et aequo’, the implication being that they would otherwise have been obliged to conform ad rigorem iuris.157 The practice of referring novel issues that arose before the session to parliament, revived at the close of the seventeenth century, provides further evidence of a belief that the role of the judges should be confined to applying the law made by the legislator, and there is also evidence that the judges believed themselves bound to follow the decreets as well as the acts of parliament. In one action they declined to address a legal issue, ‘considering that the honourable and high court of parliament was shortly to sit, and that the case was singular, and also considering that the parliaments procedur in that wold be a rule thereafter for their proceedings in the like cases’.158 They doubted whether they had the power ‘to annull a Sentence of Parliament’, and recognised that what parliament decided in one case might have some bearing on the decision of similar cases.159 Whether parliament could review and reduce its own decisions was also doubted, and some use

155  This theme is explored at length in J. D. Ford, Law and Opinion in Scotland during the Seventeenth Century, Oxford, 2007; and see too J. D. Ford, Conciliar Authority and Equitable Jurisdiction in Early Modern Scotland, in: Mark Godfrey (ed.), Law and Authority in British Legal History, 1200–1900, Cambridge, 2016, pp. 140– 69. 156  Lauder, Decisions of the Lords of Council and Session, vol. 1, pp. 320 and 597 (cf. RPS 1695/5/220; APS ix 470–1); Sir George Mackenzie, The Laws and Customes of Scotland, in Matters Criminal, Edinburgh, 1678, pp. 525–6; Sir John Nisbet, Some Doubts and Questions in the Law, Especially of Scotland, Edinburgh, 1698, pp. 79, 107 and 180. 157  For these examples, which could easily be multiplied, see RPS M1690/4/45 and 1704/7/125; APS xi 181–3. 158  RPS 1695/5/175; APS ix 431–6. 159  Sir Alexander Gibson, The Decisions of the Lords of Council and Session, Edinburgh, 1690, pp. 180 and 295–6; Lauder, Decisions of the Lords of Council and Session, vol. 1, pp. 588 and 683; Hog, Decisions of the Court of Session, pp. 13–14. See too Godfrey, Civil Justice in Renaissance Scotland, p. 29.

220

J. D. Ford

was made there of ‘practicks’ formed in previous cases.160 Had the Scottish parliament not been replaced with a new British parliament in 1707 it might well have contributed to the development of case law as well as statute. That it was abolished, together with the privy council, made the survival of the session as a court of both law and equity of crucial importance to the future of the law of Scotland. Bibliography Anon., An Accompt of Scotlands Grievances by Reason of the Duke of Lauderdales Ministrie, n.p., n.d. Anon., A Representation to the High Court of Parliament of Some of the Most Palpabale Grievances in the Colledge of Justice, n.p., n.d. Anon., Some Weighty Considerations, Humbly Proposed to the Honourable Members of the Ensuing Assembly of the States of Scotland, n.p., n.d. Anon., Some Particular Matter of Fact Relating to the Administration of Affairs in Scotland under the Duke of Lauderdale, n.p., n.d. Anon., Some Farther Matter of Fact Relating to the Administration of Affairs in Scotland under the Duke of Lauderdale, n.p., n.d. Anon., An Address Sign’d by the Greatest Part of the Members of the Parliament of Scotland, n.p., n.d. Anon., A Breviate of the State of Scotland, London, 1689. Anon. (ed.), The Acts of Sederunt of the Lords of Council and Session, Edinburgh, 1740. Balfour-Melville, E. W. M., James I, King of Scotland, 1394–1437, London, 1936. Balfour-Melville, E. W. M. (ed.), An Account of the Proceedings of the Estates in Scotland, 1689–1690, Vol. 1, Edinburgh, 1954–1955. Barrow, G. W. S., Kingship and Unity: Scotland, 1000–1306, Edinburgh, 1989. Birch, T. (ed.), A Collection of the State Papers of John Thurloe, Vol. 1, London, 1742. Blaeu, J., Theatrum orbis terrarum, sive atlas novus, Vol. 5, Amsterdam, 1640–1654. Brown, M. P. (ed.), Supplement to the Dictionary of Decisions of the Court of Session, Vol. 3, Edinburgh, 1826. Brown, K. M., Kingdom or Province? Scotland and the Regal Union, 1603–1715, Basingstoke, 1992. Brown, K. M./Mann, A. J. (eds.), The History of the Scottish Parliament. Vol. 2: Parliament and Politics in Scotland, 1567–1707, Edinburgh, 2005. 160  RPS 1649/1/142, 1661/1/220 and 1696/9/189; APS vi(ii) 203–4, vii 168–77 and x 84–92.



Adjudication in the Scottish Parliament, 1532–1707221

Burton, J. H./Masson, D. (eds.), The Register of the Privy Council of Scotland, Vol. 3, Edinburgh, 1877–1898. Camden, W., Britain, or, A Chorographicall Description of the Most Flourishing Kingdomes, England, Scotland, and Ireland, London, 1610. Clyde, J. A. (ed.), Hope’s Major Practicks, Stair Society, Vols. 3–4, Edinburgh, 1937–1938. Craig, Thomas, Ius feudale libri tres, Edinburgh, 1655. Dallas, G., System of Stiles, as Now Practicable within the Kingdom of Scotland, Edinburgh, 1697. Dickinson, W. C./Pryde, G. S., Scotland from the Earliest Times to 1603, Edinburgh, 1961. Dodd, G., Justice and Grace: Private Petitioning and the English Parliament in the Late Middle Ages, Oxford, 2007. Donald, C. D., ‘Dowhill’s Land’, The Regality Club, 1889, 1–7. Donald, C. D., ‘Wooden Houses in Close No. 28 Saltmarket’, The Regality Club, 1889, 26–29. Donaldson, G., Scotland: James V to James VII, Edinburgh, 1965. Duncan, A. A. M., ‘The Central Courts before 1532’, in: Paton, G. C. H. (ed.), An Introduction to Scottish Legal History, Stair Society, Vol. 20, Edinburgh, 1958, 321–340. Duncan, A. A. M., Scotland: The Making of the Kingdom, Edinburgh, 1975. Finlay, J., ‘Foreign Litigants before the College of Justice in the Sixteenth Century’, in: MacQueen, H. L. (ed.), Miscellany Four, Stair Society, Vol. 49, Edinburgh, 2002, 37–50. Ford, J. D., Law and Opinion in Scotland during the Seventeenth Century, Oxford, 2007. Ford, J. D., ‘Protestations to Parliament for Remeid of Law’, Scottish Historical Review, Vol. 88(1), 2009, 57–107. Ford, J. D., ‘Conciliar Authority and Equitable Jurisdiction in Early Modern Scotland’, in: Godfrey, A. M. (ed.), Law and Authority in British Legal History, 1200–1900, Cambridge, 2016, 140–169. Ford, J. D., ‘Epistolary Control of the College of Justice in Scotland’, in: Czeguhn, I./ López Nevot, J. A./Sánchez Aranda, A. (eds), Control of Supreme Courts in Early Modern Europe, Berlin, 2018, pp. 63–88. Furgol, E. M., A Regimental History of the Covenanting Armies, 1639–1651, Edinburgh, 1990. Gibson, A., The Decisions of the Lords of Council and Session, Edinburgh, 1690. Godfrey, A. M., Civil Justice in Renaissance Scotland: The Origins of a Central Court, Leiden, 2009.

222

J. D. Ford

Godfrey, A. M., ‘Parliament and the Law’, in: Brown, K. M./MacDonald, A. R. (eds.), The History of the Scottish Parliament. Vol. 3: Parliament in Context, 1235–1707, Edinburgh, 2010, 157–185. Goodare, J., ‘The Scottish Parliamentary Records, 1560–1603’, Historical Research, Vol. 72(179), 1999, 244–267. Goodare, J., The Government of Scotland, 1560–1625, Oxford, 2004. Grant, J. (ed.), Seafield Correspondence, from 1685 to 1708, Edinburgh, 1912. Gray, W. B., ‘The Judicial Proceedings of the Parliaments of Scotland, 1660–1688’, Juridical Review, Vol. 36, 1924, 135–151. Green, M. A. E. (ed.), Calendar of State Papers (Domestic Series), 1649–1660, Vol. 5, London, 1875–1886. Guerreus, D. (ed.), Rotae auditorum decisiones novae, antiquae et antiquiores, Venice, 1570. Hamilton-Grierson, P. J., ‘The Appellate Jurisdiction of the Scottish Parliament’, Scottish Historical Review, Vol. 15, 1918, 205–222. Hamilton-Grierson, P. J., ‘Fencing the Court’, Scottish Historical Review, Vol. 21, 1924, 54–62. Hamilton-Grierson, P. J., ‘The Judicial Committees of the Scottish Parliament, 1369–70 and 1544’, Scottish Historical Review, Vol. 22(85), 1924, 1–13. Hamilton-Grierson, P. J., ‘Falsing the Doom’, Scottish Historical Review, Vol. 24, 1926, 1–18. Hannay, R. K. (ed.), Acts of the Lords of Council in Public Affairs, 1501–1554, Edin­ burgh, 1932. Hannay, R. K., The College of Justice: Essays by R. K. Hannay, Stair Society Suppl. Vol. 1, Edinburgh, 1990. Harding, A., ‘Rights, Wrongs and Remedies in Late Medieval English and Scots Law’, in: MacQueen, H. L. (ed.), Miscellany Four, Stair Society, Vol. 49, Edinburgh, 2002, 1–8. Harding, A., Medieval Law and the Foundations of the State, Oxford, 2002. Henryson, E. (ed.), The Actis and Constitutiounis of the Realm of Scotland, Edinburgh, 1566. Hog, R., Decisions of the Court of Session, Edinburgh, 1757. Hostiensis, H. de Segusio, Lectura super quinque libros Decretalium, Strasbourg, 1512. Hume Brown, P./Paton, H./Balfour-Melville, E. W. M. (eds.), The Register of the Privy Council of Scotland, 3rd series, Vol. 8, Edinburgh, 1908–1970. Iacobus, P., Aurea practica libellorum, Cologne, 1575. James VI, The Trew Lawe of Free Monarchies, Edinburgh, 1598. James VI, Basilikon doron, Edinburgh, 1599.



Adjudication in the Scottish Parliament, 1532–1707223

James VI, The Workes of the Most High and Mighty Prince, James, London, 1616. Laing, D. (ed.), The Letters and Journals of Robert Baillie, Vol. 3, Edinburgh, 1841– 1842. Lauder, J., The Decisions of the Lords of Council and Session, Vol. 1, Edinburgh, 1759–1761. Lauder, J., Historical Notices of Scotish Affairs, Vol. 1, Edinburgh, 1848. Leslie, J. F., The Irvines of Drum and Collateral Branches, Aberdeen, 1909. MacIntosh, G. H., The Scottish Parliament under Charles II, 1660–1685, Edinburgh, 2007. Mackenzie, G., The Laws and Customes of Scotland, in Matters Criminal, Edinburgh, 1678. Mackenzie, G., The Institutions of the Law of Scotland, Edinburgh, 1684. Mackenzie, G., Memoirs of the Affairs of Scotland from the Restoration of King Charles II, Edinburgh, 1821. Mackie, J. D./Dickinson, W. C. (eds.), ‘Relation of the Manner of Judicatores in Scotland’, Scottish Historical Review, Vol. 19(76), 1922, 254–272. Mackintosh, D. M., The Irvines of Drum and Their Cadet Lines, 1300–1750, Greenville SC, 1998. MacQueen, H. L., ‘Pleadable Brieves, Pleading and the Development of Scots Law’, Law and History Review, Vol. 4, 1986, 403–422. Mann, A. J., ‘House Rules: Parliamentary Procedure’, in: Brown, K. M./MacDonald, A. R. (eds.), History of the Scottish Parliament: Parliament in Context, Edinburgh, 2010, 122–156. Marwick, J. D. (ed.), Charters and Other Documents Relating to the City of Glasgow, Vol. 2, Glasgow, 1897–1906. Marwick, J. D./Hunter, T. (eds.), Records of the Convention of the Royal Burghs of Scotland, Vol. 3, Edinburgh, 1866–1918. Marwick, J. D./Renwick, R. (eds.), Extracts from the Records of the Burgh of Glasgow, 1573–1759, Vol. 3, Glasgow, 1876–1911. McKechnie, H., Judicial Process upon Brieves, Glasgow, 1956. McMillan, A. R. G., The Evolution of the Scottish Judiciary, Edinburgh, 1941. McNeill, P. G. B. (ed.), The Practicks of Sir James Balfour of Pittendreich, Stair Society, Vols. 21–22, Edinburgh, 1962–1963. Melville, W. L. (ed.), Leven and Melville Papers, Edinburgh, 1843. Millet, H. (ed.), Suppliques et requêtes: le gouvernement par la grâce en Occident (XIIè–XVè siècle), Rome, 2003. Mitchell, A. F./Christie, J. (eds.), The Records of the Commissioners of the General Assemblies of the Church of Scotland, 1646–1652, Vol. 1, Scottish History Society, First Series, Vol. 11, Edinburgh, 1892–1909.

224

J. D. Ford

Morison, W. M. (ed.), The Decisions of the Court of Session, Vol. 9, Edinburgh, 1801–1804. Mudie, A., Scotiae indiculum: or, The Present State of Scotland, London, 1682. Murray, T. (ed.), The Laws and Acts of Parliament, Edinburgh, 1681. Naiden, F. S., Ancient Supplication, Oxford, 2006. Nisbet, J., Some Doubts and Questions in the Law, Especially of Scotland, Edinburgh, 1698. Ormrod, W. M./Dodd, G./Musson, A. (eds.), Medieval Petitions: Grace and Grievance, Woodbridge, 2009. Peterkin, A. (ed.), Records of the Kirk of Scotland, Containing the Acts and Proceedings of the General Assemblies, Edinburgh, 1838. Rait, R. S., The Parliaments of Scotland, Glasgow, 1924. Ridpath, G., An Historical Account of the Antient Rights and Power of the Parliaments of Scotland, n.p., 1703. Skene, J., De verborum significatione, Edinburgh, 1597. Skene, J. (ed.), The Lawes and Actes of Parliament, Edinburgh, 1597. Stevenson, D., ‘The Covenanters and the Court of Session, 1637–1650’, Juridical Review, 1972, 227–247. Stevenson, D., Revolution and Counter-Revolution in Scotland, 1644–1651, London, 1977. Tanner, R., The Late Medieval Scottish Parliament: Politics and the Three Estates, 1424–1488, East Linton, 2001. Terry, C. S., The Scottish Parliament: Its Constitution and Procedure, 1603–1707, Glasgow, 1905. Terry, C. S. (ed.), Papers Relating to the Army of the Solemn League and Covenant, 1643–1647, Vol. 2, Edinburgh, 1917. Thomson, E. E. B., The Parliament of Scotland, 1690–1702, Oxford, 1926. Thomson, J. M., The Public Records of Scotland, Glasgow, 1922. Thomson, T./Innes, C. (eds.), The Acts of the Parliaments of Scotland, Edinburgh, 1814–1875. Watson, C. B. B., ‘Notes on the Names of the Closes and Wynds of Old Edinburgh’, Book of the Old Edinburgh Club, Vol. 12, 1924, 1–156. Wood, M./Hannay, R. K./Armet, H. (eds.), Extracts from the Records of the Burgh of Edinburgh, 1589–1718, Vol. 5, Edinburgh, 1927–1967. Wright, R. S., The Kirk in the Canongate, Edinburgh, 1958. Young, J. R., The Scottish Parliament, 1639–1661: A Political and Constitutional Analysis, Edinburgh, 1996.

P. OESTMANN

The highest courts of the Holy Roman Empire: Imperial Chamber Court and Imperial Aulic Council In the Holy Roman Empire, there existed two imperial courts at the highest tier of authority, with almost the same jurisdiction. However, neither of these two courts was the ‘central’ court in a strict sense of the definition. Without doubt, the difficulties describing the Holy Roman Empire are closely connected to the well-known difficulties of explaining its constitution. It is not clear at all and has been a long-standing subject of discussion, whether the Roman-German Empire was a state or only a weak union of a number of distinct territories. The historian Barbara Stollberg-Rilinger refuses to give an answer to this question. In her view the Empire was neither a state nor a confederation. She only speaks of a Verband, which means association.1 This association possessed neither a capital2 nor a centralised government. In contrast to the territories, there existed no formal governmental centre in the Empire, only the places where the emperor resided like Prague or Vienna. It is therefore not possible to speak about a central court in a strict sense. However, there nevertheless existed two important imperial courts. Both had a jurisdiction over millions of ordinary subjects as well as over noblemen. They were known as the Imperial Chamber Court (Reichskammergericht) and Imperial Aulic Council (Reichshofrat). 1. Overview of highest courts in medieval and early modern times The Imperial Chamber Court and the Imperial Aulic Council were both the highest courts of the Holy Roman Empire in early modern times. Unlike some other European countries in this period, the ‘Old Empire’ (Altes Reich) did not have any central political power. Germany was not a state. The clas1  Barbara Stollberg-Rilinger, Das Heilige Römische Reich Deutscher Nation. Vom Ende des Mittelalters bis 1806, 2nd ed., Munich, 2006, p. 7. On the other hand, Georg Schmidt, Geschichte des Alten Reiches. Staat und Nation in der Frühen Neuzeit, 1495–1806, Munich, 1999, describes the Holy Roman Empire as a ‘dual state’ consisting of Empire and territories, as did Johann Stephan Pütter in the 18th century. 2  Misleading and unconvincing: Andreas Klinger, Das Reich und seine ‘Hauptstädte’, in: Stephan Wendehorst/Siegrid Westphal (eds.), Lesebuch Altes Reich, Bibliothek Altes Reich 1, Munich, 2006, pp. 73–79 at p. 73.

226

P. Oestmann

sical categories describing different forms of rulership failed. Contemporaries did not succeed in this either. The well-known philosopher Samuel von Pufendorf put it in slightly exaggerated terms when he said that the Holy Roman Empire was ‘Monstrum simile’.3 Its geographical extent was enormous though. Looking at modern frontiers for comparison, the Empire not only consisted of Germany but also several other territories, or at least large parts of them: the Netherlands, Belgium and Luxemburg, the eastern parts of France, Switzerland (though with an unclear legal status), the northern regions of Italy, Austria, the Czech Republic, and parts of Poland. This was a colourful mixture of peoples, languages and legal traditions. The denomination of a ‘German Nation’ only has its origin in the late 15th century. It shows without doubt a withdrawal of the Occident from controlling the ­Holy Roman Empire. The initial medieval idea of a world-wide and allChristian Empire turned more and more into an empire with a major German speaking population. This empire then became federalised to an unusual extent. The rulership of the territorial princes across the empire was recognized and approved from at least 1232 (the so called Statutum in favorem principum).4 In 1235, the diet of Mainz passed a law (Reichsabschied, ‘Recess’) and reorganized the old Imperial Aulic Court (Reichshofgericht).5 This was the highest court of the empire, closely connected to the person of the king/emperor. It had its own aulic judge, chancellery and an aulic scribe. However, the Imperial Aulic Court never consisted of learned jurists. Noblemen functioned instead as decision-makers and pronounced judgements in the tradition of the Dinggenossenschaft, based on the consensual finding of the concrete application of the laws in individual cases.6 In the middle of the 15th century, king Friedrich III finally lost interest in the court. The details are not clear but when he came back from Rome to Germany after his coronation as emperor, the Aulic Court did not develop any further and simply ceased to function, though without being formally abolished. Its demise 3  English translation: Samuel Pufendorf, The Present State of Germany. Edited and introduced by Michael J. Seidler. Translated by Edmund Bohun (1696). Natural Law and Enlightenment Classics, Indianapolis, 2007. 4  Dietmar Willoweit, Deutsche Verfassungsgeschichte. Vom Frankenreich bis zur Wiedervereinigung Deutschlands, 7th ed., Munich, 2013, § 10, nos. 9–13, pp. 75–76. 5  Collection of source materials by Bernhard Diestelkamp (ed.), Urkundenregesten zur Tätigkeit des deutschen Königs- und Hofgerichts bis 1451, 16 vols., Cologne/ Weimar/Vienna, 1986–2014; Friedrich Battenberg, Reichshofgericht, in: Handwörterbuch zur deutschen Rechtsgeschichte, 1st ed., vol. 4, Berlin, 1990, cols. 615–626; Peter Oestmann, Wege zur Rechtsgeschichte: Gerichtsbarkeit und Verfahren, Co­ logne/Weimar/Vienna, 2015, pp. 82–91, 311. 6  Jürgen Weitzel, Dinggenossenschaft und Recht. Untersuchungen zum Rechtsverständnis im fränkisch-deutschen Mittelalter, 2 vols., Cologne/Vienna, 1985.



The highest courts of the Holy Roman Empire227

may have resulted from its endeavours to build up a certain independence from the ruler. But this was ultimately incompatible with the demand of the monarch to be personally the highest judge. Around 1400, the Roman-German kings had already established a second royal court, the so-called Royal Chamber Court (Königliches Kammerge­ richt). This court was also closely connected to the person of the king. It is supposed that it could only convene when the ruler himself was present in the same place. Indeed, many times the king personally presided at its hearings. Beyond this, other fields of the royal jurisdiction were left to delegated judges. The king also appointed a commissioner who negotiated and held proceedings with litigating parties und tried to settle legal conflicts in a peaceful way. The Royal Chamber Court itself, from 1471, was delegated for some years to Adolf von Nassau, the prince elector and archbishop of Mainz. It was literally leased out to him. This was not in any way unusual but a common practice to raise money at the time. It was also exactly at this time that the number of learned jurists with a background in studying law at a university increased significantly. In fact, there was a real shift towards professionalization of the court. Looking back it is possible to speak of a first flowering of a scholarly learned imperial jurisdiction.7 In the 15th century, a discussion about an imperial reform arose alongside these developments. The view was put forward that not the emperor alone, but the emperor and the estates of the realm together should – as demanded by numerous territorial lords – exercise the imperial authority.8 The phrase ‘Emperor and Empire’ (Kaiser und Reich) illustrates this view. In 1495, the pivotal reform succeeded at the Diet of Worms at the instigation of Berthold von Henneberg, the Elector of Mainz. The ‘perpetual peace’ (Ewiger Landfriede) which was adopted finally forbade feuds. To support the perpetual peace, the Diet of Worms also reformed the Chamber Court (Königliches Kammergericht) and created thereby what later came to becalled the Imperial Chamber Court (Reichskammergericht).9 From its beginning, the emperor and the estates therefore both shared responsibility for maintaining the 7  Friedrich Battenberg, Königliche Kammergerichtsbarkeit im späteren 15. Jahrhundert, in: Rolf Lieberwirth/Heiner Lück (eds.), Akten des 36. Deutschen Rechtshistorikertages, Baden-Baden, 2008, pp. 525–543; important sources of court practice are provided by Friedrich Battenberg/Bernhard Diestelkamp (eds.), Die Protokollund Urteilsbücher des Königlichen Kammergerichts aus den Jahren 1465 bis 1480. Mit Vaganten und Ergänzungen, 3 vols. Cologne/Weimar/Vienna, 2004. 8  Adolf Laufs, Reichsreform, in: Handwörterbuch zur deutschen Rechtsgeschichte, 1st ed., vol. 4, 1990, cols. 732–739. 9  ‘Königliches Kammergericht’ is used during the 15th century, before 1495. ‘Kaiserliches Kammergericht’ denotes the same institution as the ‘Reichskammer­gericht’ after 1495. In fact, the precise name ‘Reichskammergericht’ was only used by the

228

P. Oestmann

Imperial Chamber Court. Consequently, the emperor could only elect a part of the court’s members (assessors). The estates chose the other part. Furthermore, the Imperial Chamber Court never sat in the emperor’s own place of residence but rather in free cities (most notably from 1527 to 1689 in Speyer and from 1689–1693 to 1806 in Wetzlar),10 because of the connection to both the emperor and the estates. The distance thus established from the emperor was at the same time a step towards the independence of the imperial judiciary. At this point, it is again worth remembering that the Holy Roman Empire never possessed a capital as such. The emperor had his place of residence; in the early modern age, he mostly stayed in Vienna and sometimes in Prague. However, when he changed his residence or travelled through the Empire, his imperial household came along with him – a huge transportation of baggage with thousands of people and horses. One can observe the remnants of this medieval nomadic empire surviving until the latter half of the 17th century. However, the Imperial Chamber Court was excluded from the movement of the household; it was settled far away from the emperor’s residence. In the German tradition, this concept was so deep-rooted that it has survived into modern times. The Imperial Court (Reichsgericht, 1879–1945) sat in Leipzig and not in Berlin. Similarly, since 1949 the Federal Court of Justice (Bundesgerichtshof) and the Federal Constitutional Court (Bundesverfassungsgericht) have sat in Karlsruhe rather than in Berlin (or Bonn prior to reunification in 1990). The separation of the highest courts from the seat of the government therefore belongs to German constitutional history from 1495 up to the present day.11 Like numerous superior courts, the Imperial Chamber Court (Reichskammergericht) consisted of a group of assessors divided into two ‘benches’, a bench of nobles and a bench of jurists.12 These assessors did the actual judicial work; half of them were noblemen, half of them were jurists. Practically speaking, the groups were mixed continuously, because nobles might be legally educated on the one hand and jurists were sometimes ennobled on the other hand. Every assessor was a member of only one bench. So if a noble was ‘presented’ and elected as a noble judge he was part of the noble bench even if he had studied law. And when a university-educated jurist was ennobled, he remained a member of the ‘learned bench’. This very formal19th century. In early modern times, contemporaries spoke of ‘kaiserliches und des Reichs Kammergericht’. 10  Short list of the court’s residences in Ingrid Scheurmann (ed.), Frieden durch Recht. Das Reichskammergericht von 1495 bis 1806, Mainz, 1994, p. 96. 11  On the historical links between the highest German courts: Roman Herzog, Reichskammergericht und Bundesverfassungsgericht, Wetzlar, 1989. 12  On the entire court organization: Rudolf Smend, Das Reichskammergericht. Vol. 1: Geschichte und Verfassung, Weimar, 1911, reprint Aalen, 1965.



The highest courts of the Holy Roman Empire229

istic difference was abolished after only a few decades. From 1555 half of the assessors also had to be Catholic and half of them Protestant. The emperor himself appointed the judge of the Imperial Chamber Court (Kammerrichter). Without exception, he chose a Catholic member of the nobility, for example the Bishop of Speyer. However, the judge himself did not participate in everyday judicial decision-making before the 18th century.13 He was the representative of the imperial jurisdiction and the symbolic head of the court. Around 1500 the Imperial Aulic Council became another distinct superior court.14 The emperor had never resiled from being the Empire’s highest judge. Therefore, it was a matter of course that he could adjudicate legal matters himself or with his council. The Aulic Council (Hofrat) itself had existed long before and gradually developed in the late 15th century into a professionalised court – the Imperial Aulic Council. Its political influence still remained and was closely linked to the emperor. In contradistinction to the Imperial Chamber Court, it sat wherever the emperor’s residence was. If the emperor stayed outside the Empire, the court could not sit – for example in the first half of the 16th century, when Emperor Charles V was in Spain between 1522–29. Like the Imperial Chamber Court, it consisted of a bench of nobles and a bench of jurists, who were appointed by the emperor himself. Although there had been Protestant privy councillors since the middle of the 16th century, most of the court staff were Catholic.15 In the eyes of contemporaries, the Imperial Chamber Court was a court of law; the Imperial Aulic Council was by contrast a multifunctional administrative body. Two details confirm this. Jurists did internships in the Imperial Chamber Court for some months to gain experience. These internships were far more frequent than equivalent internships at the Imperial Aulic Council. Furthermore a diverse literature about the highest jurisdiction arose from the work of the Imperial Chamber Court, which gained an excellent reputation for contributing practical works which informed the usus modernus; these works dealt with the constitution of the courts, its procedural law but also 13  Maria von Loewenich, Amt und Prestige. Die Kammerrichter zwischen Gericht und ständischer Ökonomie, in: Anette Baumann/Alexander Jendorff (eds.), Adel, Recht und Gerichtsbarkeit im frühneuzeitlichen Europa, Munich, 2014, pp. 409– 429. 14  For a short recent overview, see Eva Ortlieb, The Holy Roman Empire: the Imperial Courts’ System and the Reichshofrat, in: Alain Wijffels/C. H. (Remco) van Rhee (eds.), European Supreme Courts. A Portrait through History, London, 2013, pp. 86–95. 15  The organisation of the Aulic Council is described by Oswald von Gschließer, Der Reichshofrat. Bedeutung und Verfassung, Schicksal und Besetzung einer obersten Reichsbehörde von 1559 bis 1806, Vienna, 1942.

230

P. Oestmann

with civil and criminal law.16 The Imperial Aulic Council in contrast produced a modest amount of juristic literature. Both entities survived until the beginning of the nineteenth century. But on 6 August 1806 the Emperor Franz II resigned at Napoleon’s demand.17 In his resignation he relieved all members of the highest courts of their duties. Consequently the Imperial Chamber Court and the Imperial Aulic Counsel ceased to function. Attempts to revive them at the Vienna congress in 1814– 1815 were unsuccessful. 2. Political contexts for the highest courts’ establishment and development Regarding the general political conditions in the time after 1500, it is necessary to make clear certain distinctions between the Imperial Chamber Court and the Imperial Aulic Council. Although scholars have been used to speaking about ‘the highest courts’ of the empire and discussing the imperial courts’ procedures comprehensively in the same way, the Imperial Chamber Court and the Imperial Aulic Council were in fact highly different institutions. According to the medieval German theory, the king had to be a judge first of all. He was neither a legislator nor the first representative of the kingdom, but the ‘just judge’ to give justice to everyone. It is important to remember that the function of a medieval judge was not to decide legal cases. Instead, this was the lay assessors’ duty.18 The judge himself was the head of the court, he gave peace and power to the proceedings and he announced the decisions made by the lay assessors. In the medieval understanding, the king could not have been the highest judge in the Empire in a technical sense. This would have required a court system which was differentiated into several levels with a highest superior court at the top. However, before the reception of the canon and Roman procedural law had occurred, appeals were unknown. Therefore, it was inconceivable that one judge could have been higher than another judge.19 But the king was in a special position. In the 16  Old, but still vital and necessary Egid Joseph Karl von Fahnenberg, Litteratur des Kaiserlichen Reichskammergerichts, Wetzlar, 1792. 17  For a collection of main sources concerning the end of the empire, see Ulrich Hufeld (ed.), Der Reichsdeputationshauptschluss von 1803, Cologne/Weimar/Vienna, 2003. 18  Gernot Kocher, Richter, in: Handwörterbuch zur deutschen Rechtsgeschichte, 1st ed., vol. 4, 1990, cols. 1033–1040; Erich Döhring, Geschichte der deutschen Rechtspflege seit 1500, Berlin, 1953, p. 35. 19  Bernhard Diestelkamp, Vom einstufigen Gericht zur obersten Rechtsmittel­ instanz. Die deutsche Königsgerichtsbarkeit und die Verdichtung der Reichsverfassung im Spätmittelalter, Cologne/Weimar/Vienna, 2014, pp. 17–20.



The highest courts of the Holy Roman Empire231

German middle ages the king stood for ‘Peace by Law’ (Frieden durch ­Recht). Wherever he came, the courts in that place became redundant – the ‘Saxon Mirror’ (Sachsenspiegel) stated this in the 13th century. The king could empower himself to decide any legal affair (ius evocandi). The Chamber Court of the fifteenth century supported the emperor’s judicial power in this regard. The situation changed completely during the fifteenth century. The procedure of appeal became common in secular cases20 and it seemed quite clear that the king, and after 1500 the emperor too, was now seen in this context as the highest judge above all other judges and courts. Therefore, the court of the emperor could not but turn into a central court – in fact the highest court within the empire in early modern times under the rule of the learned law. However, when the jurisdiction of the emperor changed in this way into supervision over territorial courts, the emperor as a judge could become more and more powerful. In the eyes of the territories, exactly this situation was regarded as a danger. Therefore, a huge discussion arose in the late fifteenth century about reducing the jurisdictional power of the emperor. The same discussion, known as the imperial reform (Reichsreform), also tried to divide the administration of the Empire between the two sides. Not only the emperor but the territories and the emperor together should govern the empire. This balance of power was formulated in the phrase ‘Emperor and Empire’ (Kaiser und Reich). The phrase then became a part of the name of this new superior court, which was established during the period of reforms: the Reichskammergericht. Although the designation Kaiserliches Kammergericht was also used by contemporaries, the name Reichskammergericht symbolised clearly the influence on the court of the territories.21 In 1495, the Diet of Worms passed the most important laws of the period. One part of the reform was the creation of the Imperial Chamber Court (Reichskammergericht).22 The land peace (Landfriede) of 1495 permanently forbade all feud and self-administered justice.23 However, if the practice of this form of violence was prohibited, the empire had to have an institution 20  Bernhard Diestelkamp, Die Durchsetzung des Rechtsmittels der Appellation im weltlichen Prozeßrecht Deutschlands, Stuttgart, 1998. 21  Many contemporaries called it the ‘kaiserliches Kammergericht’ up to 1700. But the name ‘kaiserliches und des Reichs Kammergericht’ showed in a symbolic way that it was not the emperor himself who was the head of the court. 22  Lorenz Weinrich (ed.), Quellen zur Reichsreform im Spätmittelalter, Darmstadt, 2001, pp. 436–449. 23  Sources in Weinrich (ed.), Quellen, pp. 449–458; very important is Eberhard Isenmann, Weshalb wurde die Fehde im römisch-deutschen Reich seit 1467 reichgesetzlich verboten? Der Diskurs über Fehde, Friede und Gewaltmonopol im 15. Jahrhundert, in: Julia Eulenstein/Christine Reinle/Michael Rothmann (eds.), Fehdeführung

232

P. Oestmann

with which to guarantee the peace of the land. This was one of the Chamber Court’s primary competences. Everybody who violated the peace of the land could be punished by this court.24 But of course, from a modern point of view as well as in contemporary practice from 1495, this was not the most important jurisdictional competence of the court. Before 1495, there existed an older chamber court (Königliches Kammergericht), as already mentioned. It was closely connected to the king and the place of his residence. Sometimes in the fifteenth century, the emperor himself presided over the proceedings of this court. So the old chamber court was a symbol of the imperial power of the monarch. This was definitively changed after 1495. The territories of the Empire, with Bishop Berthold of Henneberg as their speaker, aimed to separate the highest court from the person and the residence of the emperor. The Imperial Chamber Court sat no longer in Vienna or Prague or elsewhere where the emperor resided within the empire. Instead it was established in imperial cities, mostly in small and unimportant ones (including, as stated above, Speyer from 1526 to 1688 and Wetzlar from 1689 to 1806). These small towns were located far away from the other institutions of the empire.25 In the traditional German interpretation of constitutional development, many historians say that this was a key first step towards a separation of powers. A second point is also important. The emperor was no longer able from 1495 to appoint the members of the imperial court. In medieval times, the lay assessors of the imperial court were the noblemen who lived at the residence of the king. In the fifteenth century, the assessors of the old chamber court (Königliches Kammergericht) were appointed by the emperor. This changed totally after 1495. The empire was divided into several so-called ‘circles’ (Reichskreise). These circles each contained a huge number of territories. There were circles in the north, west and south of the empire.26 One main function of these circles was the nomination (known as ‘presentation’) im spätmittelalterlichen Reich. Zwischen adeliger Handlungslogik und territorialer Verdichtung, Affalterbach, 2013, pp. 335–474. 24  Mattias G. Fischer, Reichsreform und ‘Ewiger Landfriede’. Über die Entwicklung des Fehderechts im 15. Jahrhundert bis zum absoluten Fehdeverbot von 1495, Aalen, 2007; Oestmann, Wege zur Rechtsgeschichte, pp. 153–159. 25  Jost Hausmann, Fern vom Kaiser. Städte und Stätten des Reichskammergerichts, Cologne/Weimar/Vienna, 1995. 26  Overview by Winfried Dotzauer, Die deutschen Reichskreise in der Verfassung des Alten Reiches und ihr Eigenleben (1500–1806), Darmstadt, 1989; idem, Die deutschen Reichskreise (1383–1806): Geschichte und Aktenedition, Stuttgart, 1998; Peter Claus Hartmann (ed.), Regionen in der frühen Neuzeit. Reichskreise im deutschen Raum, Provinzen in Frankreich, Regionen unter polnischer Oberhoheit: ein Vergleich ihrer Strukturen, Funktionen und ihrer Bedeutung, Berlin, 1994.



The highest courts of the Holy Roman Empire233

of the assessors for the Imperial Chamber Court. One half had to be noble; the second half had to be university-educated. In practice, most assessors were both learned in law as well as of noble background, regardless of which bench they had been formally presented to. The emperor himself was allowed to nominate the chamber judge and four other assessors. The chamber judge (Kammerrichter) was merely the presiding head of the court and did not take part in the legal discussions themselves. All the decisions were made by the assessors. Usually the court had 25 assessors; 21 of them were presented by the circles.27 The idea was that educated jurists from all parts of the empire should work together, from the north and the south, and after 1555 even Catholics and Protestants. This has been seen – after the geographical separation from the emperor’s residence – as the second step on the German path towards the separation of powers. And a third step also followed in 1495. The members of the Imperial Chamber Court were not paid by the emperor but from a new tax which was introduced in this year. This was the so-called common penny (Gemeiner Pfennig, afterwards the Kam­ merzieler).28 So the court and its members were independent from the emperor in a way which was quite unusual for other German territories or other European states. The Imperial Chamber Court used a high degree of symbolism to demonstrate that it represented the honour and power of the Empire.29 Even the lowest officers, the Kammerboten (court messengers by foot), used a silver coat of arms displaying the eagle, the heraldic animal of the empire.30 All the about the assessors and their presentation in the 18th century in the PhD thesis by Sigrid Jahns, Das Reichskammergericht und seine Richter. Verfassung und Sozialstruktur eines höchsten Gerichts im Alten Reich, 3 vols., Cologne/Weimar/­ Vienna, 2003–2011. 28  Maximilian Lanzinner, Gemeiner Pfennig, in: Handwörterbuch zur deutschen Rechtsgeschichte, 2nd ed., vol. 2, 2012, cols. 58–59; Anja Amend-Traut, Kammerzieler, in: Handwörterbuch zur deutschen Rechtsgeschichte, 2nd ed., vol. 2, 2012, cols. 1567–1569. 29  Barbara Stollberg-Rilinger, Die Würde des Gerichts. Spielten symbolische Formen an den Höchsten Reichsgerichten eine Rolle?, in: Peter Oestmann (ed.), Zwischen Formstrenge und Billigkeit. Forschungen zum vormodernen Zivilprozeß, Cologne/Weimar/Vienna, 2009, pp. 191–216. 30  Eric-Oliver Mader, ‘Soldateske’ des Reichskammergerichts. Das kammerge­ richtliche Botenwesen am Ende des Alten Reiches, in: Anette Baumann/Peter Oestmann/Stephan Wendehorst/Siegrid Westphal (eds.), Reichspersonal. Funktionsträger für Kaiser und Reich, Cologne/Weimar/Vienna, 2003, pp. 265–290; Ralf-Peter Fuchs, Mit Wissen und Willen der Obrigkeit. Reichsrepräsentation über die Reichskammergerichtsboten in der Mitte des 16. Jahrhunderts, in: ibid., pp. 247–264; this symbolism worked even at the very end of the empire, see Peter Oestmann (ed.), Gemeine Bescheide. Vol. 1: Reichskammergericht 1497–1805, Cologne/Vienna/Weimar, 2013, pp. 796–797. 27  Details

234

P. Oestmann

decisions of the court were formulated in the pluralis maiestatis, although the emperor had of course no direct knowledge of any individual case. Every summons, every mandate, every decision was pronounced in the name of the emperor. Already in its first 90 years, the Imperial Chamber Court issued more than 40,000 judgements including its interlocutory decisions.31 All of these 40,000 parchments and letters of decisions were delivered to the parties, spread all over the Empire. If we calculate on an assumption that there were only two parties (though sometimes there were in fact many more) per case, the messengers made service of such documents more than 80,000 times in 90 years. As a result of its activities, knowledge of the Chamber Court grew fast and acquaintance with its symbols and the name of the emperor as highest judge were spread across the whole Empire. The Imperial Chamber Court of 1495 marked a true caesura. Even so there was a noticeable continuity with the court from before 1495 (the former Royal Chamber Court, i. e. Königliches Kammergericht) regarding its staff and procedural law.32 Also it continued some cases, which were pending in the Royal Chamber Court in 1494. However, the geographic separation of the emperor and the participation of the estates in choosing the assessors made for a completely new and up-to-date Court – the Imperial Chamber Court. Although the court pronounced decisions in the name of the emperor, he had no direct influence over those decisions. It is said, that only the Spanish Justicia of Aragon showed a similarly strong influence of the estates. So the German experience was quite unusual against the background of a broader European approach.33 Also the court’s constitution was approved by the Diet and not only by the emperor himself. One could say that the highest jurisdiction in the Holy Roman Empire was in this sense federalist. Contemporaries in the eighteenth century like Johann Stephan Pütter, as well as recent historians like Georg Schmidt, spoke about a complementary ‘Imperial State’ (Reich-Staat). It means the statehood of the Empire being based on the territories as much as on the emperor.34 The interpretation is highly con31  The exact number is unknown. But 40,000 decisions were collected by Raphael Seyler/Christian Barth (eds.), Urtheil Und Beschaydt Am Hochlöblichen Kayser­ lichen Cammergericht, 5 vols., Speyer, 1604–1605. 32  Some studies in Bernhard Diestelkamp (ed.), Das Reichskammergericht. Der Weg zu seiner Gründung und die ersten Jahrzehnte seines Wirkens (1451–1527), Cologne/Weimar/Vienna, 2003. 33  Wolfgang Reinhard, Geschichte der Staatsgewalt. Eine vergleichende Verfassungsgeschichte Europas von den Anfängen bis zur Gegenwart, 3rd ed., Munich, 2002, p. 296; brief remarks on the Justicia de Aragon by Ignacio Czeguhn and Antonio Sánchez Aranda, Spain and Portugal until the 18th Century, in: Wijffels/Van Rhee (eds.), European Supreme Courts, pp. 142–149 at 148–149. 34  Johann Stephan Pütter, Beyträge zum Teutschen Staats- und Fürsten-Rechte, vol. 1, Göttingen, 1777, pp. 30–31; Schmidt, Geschichte, p. 44.



The highest courts of the Holy Roman Empire235

tested. On one point, however, the characterisation is applicable. The Imperial Chamber Court restrained the jurisdiction of the emperor. The establishment of the Imperial Court weakened the emperor as highest judge, because in this period it was the ‘iurisdictio’, the power of jurisdiction, which showed and symbolised the highest right of rulership.35 Thereafter the German-Roman emperors tried comprehensively to strengthen their personal jurisdiction, having seen it weakened in 1495. Maximilian I, who had agreed to the reforms and the founding of the Imperial Chamber Court, reorganized his own Aulic Council in 1498.36 This Aulic Council was not a new institution and not even a real court at all. It was a group of advisers and consultants who discussed and decided together with the emperor all kinds of political and legal problems. However, after the establishment of the Chamber Court, the Aulic Council turned more and more into a second ‘highest’ court of the empire. In this way, the emperors regained some competences they had lost in 1495. And the political importance of this Imperial Aulic Council grew and grew. By around 1590 or 1600 it was clear that the political power of the Imperial Aulic Council was much greater than the power of the Chamber Court.37 But it was in legal affairs that the Aulic council was most differently organised in comparison with the Chamber Court. All members of the Aulic Council were personally appointed by the emperor. The territories and the ‘circles’ did not have any influence on the organisation of the Aulic council. Additionally, all members of the Aulic Council were remunerated by the emperor and not by the territories.38 The Aulic Council also usually operated at the residence of the emperor. The connection was extremely close. Sometimes, when the emperor had to change his residence, the Aulic Council had to follow him with all the archives, 35  Dietmar Willoweit, Rechtsgrundlagen der Territorialgewalt. Landesobrigkeit, Herrschaftsrechte und Territorium in der Rechtswissenschaft der Neuzeit, Cologne/ Vienna, 1975, pp. 17–47, 186–213; Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland. Vol. 1: Reichspublizistik und Policeywissenschaft, 1600–1800, Munich, 1988, pp. 156–157; Barbara Stollberg-Rilinger, Des Kaisers Alte Kleider. Verfassungsgeschichte und Symbolsprache des Alten Reiches, Munich, 2008, p. 28; Peter Oestmann, Geistliche und weltliche Gerichte im Alten Reich. Zuständigkeitsstreitigkeiten und Instanzenzüge, Cologne/Weimar/Vienna, 2012, p. 11. 36  On the reorganisation in 1498, cf. Peter Moraw, Reichshofrat, in: Handwörterbuch zur deutschen Rechtsgeschichte, 1st ed., vol. 4, 1990, cols. 630–638. 37  Wolfgang Sellert, Der Reichshofrat: Begriff, Quellen und Erschließung, Forschung, institutionelle Rahmenbedingungen und die wichtigste Literatur, in: Zeitenblicke, 3, 2004, Nr. 3, http://www.zeitenblicke.de/2004/03/sellert/#headline_quote, No. 5. 38  Wolfgang Sellert, Besoldungen und Einkünfte der Richter am Kaiserlichen Reichshofrat, in: Anja Amend-Traut/Albrecht Cordes/Wolfgang Sellert (eds.), Geld, Handel, Wirtschaft. Höchste Gerichte im Alten Reich als Spruchkörper und Institution, Berlin, 2013, pp. 267–294.

236

P. Oestmann

files, and with all the advocates and procurators, called ‘agents’,39 and with all the other officials and employees. In the second half of the 17th century, Emperor Leopold often moved between Vienna, the residence of Wels and the city of Prague. Sometimes, the Aulic Council had to change location two or three times a year.40 In medieval times, there existed a maxim that the old Aulic council had always to work in the same building where the emperor resided. This was weakened in the early modern period. However, the personal connection to the emperor still remained very close. The most significant differences therefore were that the Imperial Aulic Council really was an institution of the emperor but also that it was not only a court of law. By contrast, the Imperial Chamber Court reflected a newer view through being a court of the emperor and the territories together, and not a multi-functional institution of the emperor alone. The Imperial Chamber Court was a deliberate counterbalance to the Imperial Aulic Council. Whether the Aulic Council was exactly a new institution, as set up in 1498 when it was reorganised, is a question difficult to answer.41 During the fifteenth century, as we have seen, there was already an Aulic Council (Hofrat) of the emperor. When the Imperial Aulic Council is seen as a new second imperial court, with its permanent establishment coming soon after the Imperial Chamber Court, the view accurately reflects new understanding gained from the most recent research. But in no sense did it mark the formal founding of a new institution. The relationship between the jurisdiction of the emperor and the jurisdiction of the Imperial Aulic Council cannot be differentiated easily. The Imperial Aulic Council judged – like the Imperial Chamber Court – in the emperor’s name.42 However, the emperor sometimes signed the decisions of the Imperial Aulic Council himself. Therefore, the sources 39  Thomas Dorfner, Mittler zwischen Haupt und Gliedern. Die Reichshofratsagenten und ihre Rolle im Verfahren (1658–1740), Münster, 2015; Wolfgang Sellert, Die Agenten und Prokuratoren am Reichshofrat, in: Anwälte und ihre Geschichte. Zum 140. Gründungsjahr des Deutschen Anwaltsvereins, Munich, 2011, pp. 41–64. 40  Cf. at least 10 common decrees (‘Gemeine Bescheide’) between November 1679 and September 1684 in: Peter Oestmann (ed.), Gemeine Bescheide. Vol. 2: Reichshofrat, 1613–1798, Cologne/Weimar/Vienna, 2016. 41  Some scholars speak about its formation, e. g. Eva Ortlieb, Die Formierung des Reichshofrats (1519–1564). Ein Projekt der Kommission für Rechtsgeschichte Österreichs der Österreichischen Akademie der Wissenschaften in Zusammenarbeit mit dem Haus-, Hof- und Staatsarchiv, in: Anja Amend/Anette Baumann/Stephan Wendehorst/Siegrid Westphal (eds.), Gerichtslandschaft Altes Reich. Höchste Gerichtsbarkeit und territoriale Rechtsprechung, Cologne/Weimar/Vienna, 2007, pp. 17–39; idem, Das Prozeßverfahren in der Formierungsphase des Reichshofrats (1519–1564), in: Oestmann (ed.), Formstrenge, pp. 117–138. 42  Two examples in Manfred Uhlhorn, Der Mandatsprozess sine clausula des Reichshofrats, Cologne/Vienna, 1990, pp. 175–178.



The highest courts of the Holy Roman Empire237

do not help to determine when the emperor himself or the Imperial Aulic Council as an institution judged in a given case. Presumably, the Imperial Aulic Council was intended to strengthen the emperor’s jurisdiction and protect it from influence of the estates. The geographic connection made the legal connection visible; from 1600 the Imperial Aulic Council had from this perspective been superior to the Imperial Chamber Court. Moreover, the missing functional differentiation proved to be a political advantage. The Imperial Aulic Council was based on the authority of the emperor, whereas the Imperial Chamber court by contrast had no political influence despite its high legal reputation. Even the estates, which had the responsibility for the judges’ nomination, did not reliably comply with their financial obligations towards the maintenance of the court. The relationship between these highest courts and the other courts of the Holy Roman Empire was determined by the constitution of the courts and the procedural law. Since 1530 the highest courts were not permitted to hear any appeal in criminal matters,43 an important difference for example from the situation in France. However, the imperial courts were the highest appellate courts in civil matters, as long as the territories were neither excluded from the Imperial jurisdiction nor in possession of the privilege against appeal. At the same time, the imperial courts had oversight of the judiciary of the highest territorial courts. In cases of denial of or unduly prolonged delays to justice, but also in relation to procedural errors, the highest courts could hear special complaints, notwithstanding any territorial privileges.44 Thereby, the imperial courts put pressure on the territories to harmonise their procedural law by adaptation to accommodate the imperial procedural law. Appeals to the highest courts resulted in case files (Akten) for use in the procedure of the Chamber Court, instead of reliance on protocol books, and such appeals were heard in the first half of the 16th century in numerous regions of the Holy Roman Empire, particularly well explored for the northern region of Schleswig-Holstein.45 The establishment of successive levels of 43  § 95 Reichsabschied 1530, in: Johann Jacob Schmauß/Heinrich Christian von Senckenberg (eds.), Neue und vollständigere Sammlung der Reichsabschiede, vol. 2, Frankfurt am Main, 1747, reprint Osnabrück, 1967, p. 321; Christian Szidzek, Das frühneuzeitliche Verbot der Appellation in Strafsachen. Zum Einfluß von Rezeption und Politik auf die Zuständigkeit insbesondere des Reichskammergerichts, Cologne/ Weimar/Vienna, 2002; Peter Oestmann, Hexenprozesse am Reichskammergericht, Cologne/Weimar/Vienna, 1997, pp. 51–55. 44  Peter Oestmann, Rechtsverweigerung im Alten Reich, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 127, 2010, pp. 51–141; Kurt Perels, Die Justizverweigerung im alten Reiche seit 1495, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 25, 1904, pp. 1–51. 45  Wolfgang Prange, Schleswig Holstein und das Reichskammergericht in dessen ersten fünfzig Jahren, Wetzlar, 1998.

238

P. Oestmann

jurisdiction across the Empire was an important step towards a harmonisation of the territorial court constitutions and the procedural law. Even where the privileges against appeal existed, an effect of the courts’ superior jurisdiction can be proved: the emperor gave the privilegium de non appellando, in consultation with the Imperial Aulic Council, to those territories which adapted the highest courts’ principles of procedural law for their own courts.46 The Imperial Recess of Speyer from 1600 (Speyerer Deputations­abschied)47 and the Latest Imperial Recess from 1654 (Jüngster Reichsab­schied)48 elevated the imperial procedural law, especially the procedural law of the Imperial Chamber Court (Kammergerichtsprozess), to be the guidelines for the territorial jurisdictions. Legally, but also politically, the jurisdiction of the territories was bound to the imperial jurisdiction until the second half of the 18th century, because the emperor granted the territorial jurisdiction to rulers of the estates through their investiture.49 Thereby, they had to acknowledge the emperor’s conferral of jurisdiction. To complete the picture, the connection between the imperial jurisdiction and the perpetual peace of 1495 has to be highlighted again. Feuds and private violence, which had been forbidden since 1495, could only become redundant in practice, if there were a guarantee of broad access to a court system for everyone, including the possibility of lawsuits against the authorities. Historians since the 1980s have described this process as a ‘juridification of social conflicts’.50 Practically speaking, criminal actions against violations of land peace were important in the 16th century, but had never 46  Studies and sources in Ulrich Eisenhardt, Die kaiserlichen privilegia de non appellando, Cologne/Vienna, 1980. 47  Edited by Schmauß and Senckenberg, Neue Sammlung, vol. 3, pp. 471–498. 48  As there is no reliable modern edition, see Schmauß/Senckenberg, Neue Sammlung, vol. 3, pp. 640–690; for a modern edition with numerous mistakes see Arno Buschmann (ed.), Kaiser und Reich. Verfassungsgeschichte des Heiligen Römischen Reiches Deutscher Nation vom Beginn des 12. Jahrhunderts bis zum Jahre 1806 in Dokumenten. Vol. 2: Vom Westfälischen Frieden 1648 bis zum Ende des Reiches im Jahre 1806, 2nd ed., Baden-Baden, 1994, pp.180–273. 49  Recent works underline the importance of feudal law in early modern times: Tobias Schenk, Der Reichshofrat als oberster Lehnshof. Dynastie- und adelsgeschichtliche Implikationen am Beispiel Brandenburg-Preußens, in: Baumann/Jensdorff (eds.), Adel, Recht und Gerichtsbarkeit, pp. 255–294; idem, Reichsjustiz im Spannungsverhältnis von oberstrichterlichem Amt und österreichischen Hausmachtinteressen: Der Reichshofrat und der Konflikt um die Allodifikation der Lehen in BrandenburgPreußen (1717–1728), in: Amend-Traut/Cordes/Sellert (eds.), Geld, Handel, Wirtschaft, pp. 103–219; Oestmann, Geistliche und weltliche Gerichte, pp. 61, 71, 104– 106, 723–724. 50  Winfried Schulze, Bäuerlicher Widerstand und feudale Herrschaft in der frühen Neuzeit, Stuttgart/Bad Cannstatt, 1980, pp. 76–77; idem, Die veränderte Bedeutung sozialer Konflikte im 16. und 17. Jahrhundert, in: idem (ed.), Europäische Bauern­



The highest courts of the Holy Roman Empire239

formed the major part of the cases heard by the Imperial Chamber Court, especially after 1550.51 However, historians have attached great value to this matter. State monopoly on the use of force existed from this time – at least in the perception of historians – and began to constitute an essential basis of statehood.52 Politically, the jurisdiction of the highest courts even affected the borders of the empire. In the border areas, where the association with the empire had never been clarified, acknowledgement of the imperial courts and the consequent cases at the Imperial Chamber Court and the Imperial Aulic Council inform us about the allegiance of people to the Empire and its authority in those areas. In particular this aspect concerned the Spanish and Habsburg Netherlands, parts of France as Lorraine, Alsace or the county of Montbéliard, and additionally the Swiss cantons until the seventeenth or – like Saint Gallen – eighteenth century. There were even some cases from Italy (so called Italian fiefs of the Empire) and in the first half of the sixteenth century from the Baltic, which help show the extent of the Empire in the perception of the contemporaries.53 3. Technical jurisdiction of the highest imperial courts; changes over time in the context of the overall structure of courts and jurisdiction In the German tradition the English concept of ‘jurisdiction’ has at least three very different meanings. All of them are the topic of the next section. First of all we have to consider the territorial jurisdiction of the court (Gerevolten der Frühen Neuzeit, Frankfurt am Main, 1982, pp. 276–308 at 279, 294–295; Oestmann, Wege zur Rechtsgeschichte, pp. 66, 166. 51  Filippo Ranieri, Recht und Gesellschaft im Zeitalter der Rezeption. Eine rechtsund sozialgeschichtliche Analyse der Tätigkeit des Reichskammergerichts im 16. Jahrhundert, Cologne/Vienna, 1985, pp. 240–242, 480–487. 52  Oestmann, Wege zur Rechtsgeschichte, p. 153. 53  Overview of sources in Otto Koser, Repertorium der Akten des Reichskammergerichts. Untrennbarer Bestand, 2 vols., Heppenheim, 1933–1936; Ursula Hüllbüsch/ Hans Schenk, Reichskammergericht. Bestand AR 1. Prozeßakten, Koblenz, 1994; Leo Leesment, Über die livländischen Gerichtssachen im Reichskammergericht und im Reichshofrat, Tartu, 1929; in general on the relation between borderlines, frontiers and imperial jurisdiction see Peter Oestmann, Prozesse aus Hansestädten vor dem Königs- und Hofgericht in der Zeit vor 1400, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 128, 2011, pp. 114–168, esp. 114–118; with focus on Italy see Matthias Schnettger, ‘Principe sovrano’ oder ‘civitas imperialis’? Die Republik Genua und das Alte Reich in der Frühen Neuzeit (1556–1797), Mainz, 2006.

240

P. Oestmann

richtssprengel), which means the spatial dimension of judicial power.54 Secondly, we have to look at jurisdiction ratione personae and subject-matter jurisdiction: which persons could bring claims and which cases were heard at the imperial courts? In the third place we will focus on the decisions themselves, the practical judicial work in applying the procedural law as well as the substantive law (another meaning of jurisdiction in German). All this is meant by ‘Jurisdiktion’ in the broader German understanding of the term ‘jurisdiction’. The territorial jurisdiction of the Imperial Chamber Court and the Imperial Aulic Council was mostly the same. The Holy Roman Empire had never been a strongly governed empire and therefore the extent of territorial jurisdiction also reflects the imperial borders, although their geographical extent was not normatively defined. In a constitutional sense, it was established that the jurisdiction of the Holy Roman Empire was based on the imperial feudal union (Reichslehenverband). Those territorial lords, who were enfeoffed by the Roman emperor, received jurisdiction over their land with it. They acquired either the full judicial power (‘jurisdiction’) or the right to at least execute this power (exercitium iurisdictionis).55 In these circumstances the territorial jurisdiction was not an autonomous right to govern, but in its origin a royal prero­ gative. The Diet of Roncaglia had clarified this already in 1158,56 and in theory it did not change thereafter. All territorial lords, who received their territorial power from the Empire’s structure of fiefs, were under the jurisdiction of the imperial courts. Sometimes historians have observed that the fief and feudalism no longer had relevance in the early modern period. But this view just reflects a focus on power politics. Legally, the fief was still a clear expression of a hierarchical order and consequently an acknowledgement of the imperial power. Therefore powerful territorial lords increasingly avoided receiving their fief personally, because it was against their honour to kneel in front of the emperor. Instead they sent envoys; later they asked merely for a written confirmation. By the end of the 18th century, powerful territories such as Prussia went further in severing their weak connection to the imperial power.57 But in 54  Recent literature sometimes refers to ‘Gerichtslandschaft’ (landscape of jurisdiction): Anette Baumann/Anja Amend/Stephan Wendehorst, Einleitung, in: Amend/ Baumann/Wendehorst/Westphal (eds.), Gerichtslandschaft, pp. 1–5. 55  See examples in Oestmann, Geistliche und weltliche Gerichte, pp. 84–97, 104– 105. 56  Published by Heinrich Appelt (ed.), Die Urkunden der deutschen Könige und Kaiser, X/2: Die Urkunden Friedrichs I., 1158–1167, Hannover, 1979; Vittore Colorni, Die drei verschollenen Gesetze des Reichstages bei Roncaglia, Aalen, 1969. 57  Kaiserliche Signatur, die Aufhebung des Niederknieens bey Thron- und Italienischen Belehnungen betreffend (7 January 1788), in: Oestmann (ed.), Gemeine Bescheide II; Stollberg-Rilinger, Des Kaisers alte Kleider, pp. 287–297.



The highest courts of the Holy Roman Empire241

principal, the geographic jurisdiction of the imperial courts was originally as large as the imperial fief union itself. So-called ‘exempted’, i. e. excluded, regions are difficult to classify. Historically, they were seen as belonging to the empire in a broader sense although they were excluded from the imperial power in a technical sense.58 The Burgundian ‘circle’ in the Spanish Netherlands, the Habsburg hereditary lands and additionally a part of Imperial Italy were excluded regions. By the time of the peace of Westphalia in 1648, the Netherlands and the Swiss Confederation were so strongly excluded that in modern times they have been regarded as functioning as independent states. At the Empire’s borders, there was also a permanent issue about imperial jurisdiction. The conflicts in Schleswig-Holstein are well known. The Danish king at various times ruled the united duchies in Northern Germany in a personal union. Holstein was incorporated into the imperial feudal union; in Schleswig, the Danish king had the territorial power himself.59 On a town gate in Rendsburg, the socalled King’s Gate, there was even a stone inscribed ‘Eidora Romani Terminus Imperii’. The river Eider consequently marked the northern border of the Empire.60 In numerous legal disputes involving nobles from Schleswig-Holstein, the imperial courts had to decide whether they were subjects of the Empire.61 The Imperial power and the border of the Empire were discussed again and again. Amongst historians, it is common to speak about this kind of conflict as a negotiation process dealing with the acceptance of power.62 This means that rulership needed to be negotiated with and accepted by the subjects and nobles. So-called royal absolutism was not as unambiguously powerful as older academic literature claimed. The conflicts in SchleswigHolstein fit well the newer interpretation. The geographic jurisdiction of the highest imperial courts was not defined at an abstract or general level, but was discussed and determined continuously in individual cases. As a matter of completeness, it should be mentioned that the territorial jurisdiction of the highest courts was never defined in legislation. The nu58  Heinrich Godfried Scheidemantel, Repertorium des Teutschen Staats und Lehnrechts, 1st pt (A–E), Leipzig, 1782, pp. 904–914, with a list of all exempted regions. 59  See a helpful and richly coloured overview of the princes and territories by Carsten Porskrog Rasmussen/Elke Imberger/Dieter Lohmeier/Ingwer Momsen (eds.), Die Fürsten des Landes. Herzöge und Grafen von Schleswig, Holstein und Lauenburg, Neumünster, 2008. 60  Caspar Frederik Wegener, Von der Landeshoheit über das alte Rendsburg auf der Eiderinsel, Copenhagen, 1850, pp. 125–126. 61  Oestmann, Rechtsverweigerung, pp. 100–102. 62  Markus Meumann/Ralf Pröve (eds.), Herrschaft in der Frühen Neuzeit. Umrisse eines dynamisch-kommunikativen Prozesses, Münster, 2004; Hendrikje Carius, Recht durch Eigentum. Frauen vor dem Jenaer Hofgericht, 1648–1806, Munich, 2012, p. 37.

242

P. Oestmann

merous procedural statutes of the courts never said a word about this important practical point. Perhaps this non-determination led to a flexibility in individual cases. Another fact to be mentioned is the grant of unlimited privileges against appeal to some territories of the Empire. This concerned the electorates although the ecclesiastic electorates received it relatively late (e. g. Cologne in 1653).63 In addition, Sweden obtained such a privilege for the German territories which it ruled after the Thirty Years’ War. As a consequence Sweden founded the tribunal of Wismar in 1653 as a replacement for the imperial courts.64 The territories were not completely excluded from the imperial power though. In special cases, it was possible to invoke the jurisdiction of the Imperial Chamber Court and the Imperial Aulic Council, al­ though not through any regular appeal, and such cases were indeed rare. But Wismar was not a part of the Swedish realm in a constitutional sense. The jurisdiction of the highest courts in the sense of jurisdiction ratione personae and ratione materiae was mostly congruent. That makes it easy and difficult at the same time to analyse the early modern imperial jurisdiction. The territorial jurisdiction was congruent; just as the jurisdiction ratione personae and ratione materiae was.65 However, the Imperial Chamber Court and the Imperial Aulic Council were nevertheless entirely different institutions. In contrast to territorial jurisdiction, jurisdiction ratione personae and ratione materiae of the courts were defined statutorily. In the legislation, important differences become clear. The legislation on the Imperial Chamber Court consisted of numerous ordinances. The first ordinance from 1495 (Reichskammergerichtsordnung) counted 32 articles, printed in modern editions on 8 pages of text. However, depending on the manner of counting, ten more ordinances followed up until 1548–55.66 The latest ordinance was enacted by the imperial Diet in 1555 as part of the same legislation which included the well-known Religious Peace of Augsburg. A recent edition amounts to 220 pages in three parts with a highly complex arrangement.67 All those ordinances were enacted in the context of so-called ‘imperial recesses’ (Reichs­abschiede) as formal statutes of the Holy Roman Em63  Eisenhardt,

Privilegia, pp. 238–240. Jörn/Bernhard Diestelkamp/Kjell Åke Modéer (eds.), Integration durch Recht. Das Wismarer Tribunal (1653–1806), Cologne/Weimar/Vienna, 2003. 65  Wolfgang Sellert, Über die Zuständigkeitsabgrenzung von Reichshofrat und Reichskammergericht insbesondere in Strafsachen und Angelegenheiten der freiwilligen Gerichtsbarkeit, Aalen, 1965. 66  For a useful study of the procedural ordinances and procedural law, see Bettina Dick, Die Entwicklung des Kameralprozesses nach den Ordnungen von 1495 bis 1555, Cologn/Vienna, 1981, with a list of ordinances on pp. XVII–XXIV. 67  Adolf Laufs (ed.), Die Reichskammergerichtsordnung von 1555, Cologne/­Vienna, 1976. 64  Nils



The highest courts of the Holy Roman Empire243

pire. Under no circumstances could the emperor enact a court ordinance himself. Despite the increasingly complex statutory provisions, the legislation on the Imperial Chamber Court has never been codified. The practice of the Roman Rota (the highest appellate court of the Roman Catholic Church) especially influenced the highest court of the Holy Roman Empire.68 The Imperial Chamber Court also took regard to its own precedents and practice. The stilus curiae, that is the practice of the court, became an important guideline for the Imperial Chamber Court. Published legal literature focusing on the highest courts (Kameralliteratur) supported stare decisis from 1563 with the first edition of Joachim Mynsinger’s observations.69 The mixture and quantity of statutes, practical literature and precedents fit exactly with what recent scholarship has termed validity by usage (usuale Rechtsgeltung) in the early modern period. Law was not given effect by statutes only, but also by forensic acknowledgement and practice. Contemporaries spoke of a fresh observance (viridis observantia).70 Surprisingly, no further formal ordinance for the Imperial Chamber Court was passed after 1555, although it continued its existence for another 250 years and although there was a need for legislative reforms. The underlying reasons are not at all clear. On the one hand, the legislative process was cumbersome anyway and permanently accompanied by confessional and power-political conflicts. On the other hand, formally enacted statutes had hardly any effect; court practice somehow worked successfully regardless of them. In theory, a visitation commission should supervise and audit the Imperial Chamber Court yearly and should also deal with problems in the operation of the court. The commission did make suggestions for reforms of the Imperial Chamber Court’s process.71 Especially the Imperial Recess of Spe68  Hans-Jürgen Becker, Die Sacra Rota Romana in der frühen Neuzeit, in: Leopold Auer/Werner Ogris/Eva Ortlieb (eds.), Höchstgerichte in Europa. Bausteine frühneuzeitlicher Rechtsordnungen, Cologne/Weimar/Vienna, 2007, pp. 1–18. 69  On Mynsinger and his work Sabine Schumann, Joachim Mynsinger von Frundeck (1514–1588). Herzoglicher Kanzler in Wolfenbüttel – Rechtsgelehrter – Humanist. Zur Biographie eines Juristen im 16. Jahrhundert, Wiesbaden, 1983. 70  Thomas Simon, Geltung. Der Weg von der Gewohnheit zur Positivität des Rechts, in: Rechtsgeschichte, Rg. 7, 2005, pp. 100–137; Barbara Stollberg-Rilinger, Verfassungsgeschichte als Kulturgeschichte, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 127, 2010, pp. 1–32; idem, Des Kaisers alte Kleider, pp. 79, 83–85; Peter Oestmann, Rechtsvielfalt vor Gericht. Rechtsanwendung und Partikularrecht im Alten Reich, Frankfurt am Main, 2002, pp. 116–118; idem, Geistliche und weltliche Gericht, pp. 33, 193, 284, 410. 71  Klaus Mencke, Die Visitationen am Reichskammergericht im 16. Jahrhundert. Zugleich ein Beitrag zur Entstehungsgeschichte des Rechtsmittels der Revision, Cologne/Vienna, 1984; Alexander Denzler, Über den Schriftalltag im 18. Jahrhundert.

244

P. Oestmann

yer from 1600 (Speyerer Deputationsabschied) played an important role. In 1613, a draft of a new ordinance for the Imperial Chamber Court (though in fact never formally adopted) was proposed: the so called ‘Concept’, contemporarily named COC (Conceptus Ordinationis Camerae). The relevant legal sourcebooks, such as the Corpus Iuris Cameralis from 1724, always contain the Concept from 1613.72 It did have an impact on the procedural practice of the seventeenth century and was cited by the courts and in lawyers’ pleadings.73 The Latest Imperial Recess from 1654 (Jüngster Reichsabschied) also had a legal effect on the Empire. It is called the Latest Recess because the next Diet which convened nine years later never formally came to an end and so there was no new ‘recess’ passed up until the end of the Holy Roman Empire. One of the main purposes of the Jüngster Reichsabschied was to promulgate the Peace of Westphalia as imperial law. But it also modified the Imperial Chamber Court’s ordinance, integrating it into a larger body of legislation.74 The Holy Roman Empire did not thereafter pass any other such larger statutes in the field of procedural law. The Imperial Chamber Court certainly acted legislatively itself. Between 1497 and 1805, it passed more than 330 ‘common decrees’ as abstract general ordinances for judicial process and court procedure (Gemeine Bescheide). In different ways, numerous German courts knew this kind of surrogate legislation, made by the courts themselves. Until the middle of the 19th century, such common decrees were passed in large numbers. The Imperial Chamber Court was the most prominent and prolific. No other court passed as many common decrees as it did.75 It is unclear whether this form of legislation was a European phenomenon. In France, there were so-called arrêts de règlement,76 in Portugal so-called assentos.77 Partly, it seems that in these Die Visitation des Reichskammergerichts von 1767 bis 1776, Cologne/Weimar/­ Vienna, 2016. 72  Georg Melchior von Ludolff, Corpus Juris Cameralis, das ist des Kayserlichen Cammer-Gerichts Gesetz-Buch, Frankfurt am Main, 1724, pp. 577–764. 73  Anja Amend-Traut, Wechselverbindlichkeiten vor dem Reichskammergericht. Praktiziertes Zivilrecht in der Frühen Neuzeit, Cologne/Weimar/Vienna, 2009, p. 116; Bernd Schildt, Die Entwicklung der Zuständigkeit des Reichskammergerichts, Wetzlar, 2006, pp. 26–31. 74  Buschmann, Kaiser und Reich, pp. 187–254; Heide Marie Götte, Der jüngste Reichsabschied und die Reform des Reichskammergerichts, PhD thesis, Munich, 1998. 75  Oestmann (ed.), Gemeine Bescheide I, pp. 13–19. 76  Philippe Payen, Les arrêts de règlement du Parlement de Paris au XVIIIè siècle. Dimension et doctrine, Paris, 1997; idem, La physiologie de l’arrêt de règlement du Parlement de Paris au XVIIIè siècle, Paris, 1999. 77  Collecção chronologica dos assentos das casas da supplicação e do civel, Coimbra, 1791; short remarks on these sources by Johannes Michael Scholz, Portugal, in:



The highest courts of the Holy Roman Empire245

cases they were binding for the court, unlike the Imperial Chamber Court’s common decrees. These common decrees were addressed to the court members and procurators and had to be brought into effect by proclamation. Officially, they remained provisional until the next visitation of the court. However, in practice the common decrees came into effect with their proclamation, because there were no visitations from the late sixteenth century onwards. The subject-matter of common decrees was broad. Many dealt with the cumbersome financing of the court by the estates of the realm. Others discussed daily issues of the court, multiple instances, for example, concerning the delivery of written documents by court messengers. Some common decrees were police ordinances (Policeyordnungen) for fire and plague protection in Speyer and Wetzlar.78 The decrees reforming procedural law had an enormous importance. The tension between oral and written procedure was permanently discussed, as was the manner in which hearings were organized (Audienzen). The common decrees have therefore great significance for procedural legal history. In comparison with the Imperial Chamber Court, the statutory basis for the Imperial Aulic Council was not nearly as complex. There were – depending on the manner of counting – nine ordinances of the Imperial Aulic Council between 1550 and 1766.79 Thus, the founding ordinance of the Council was more recent than the ordinance of the Imperial Chamber Court and its development reached into the second half of the 18th century. The instructions, resolutions and orders were certainly short and far less extensive than the ordinance of the Imperial Chamber Court from 1555. Greater detail was also not necessary, because the ordinance of the Imperial Chamber Court came subsidiarily to have effect in the process of the Imperial Aulic Council.80 References to the ordinance of the Imperial Chamber Court81 made a less Helmut Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte. Vol. 2: Neuere Zeit (1500–1800). Das Zeitalter des Gemeinen Rechts. 2nd part: Gesetzgebung und Rechtsprechung, Munich, 1976, pp. 1319–1342, esp. at 1328–1329; Heinz Mohnhaupt, Organisation und Tätigkeit des ‘Hohen Königlichen Tribunals zu Wismar’, in: Nils Jörn/Bernhard Diestelkamp/Kjell Åke Modéer (eds.), Integration durch Recht. Das Wismarer Tribunal (1653–1806), Cologne/Weimar/Vienna, 2003, pp. 215–237 at p. 230. 78  Overview by Oestmann (ed.), Gemeine Bescheide I, pp. 41–77. 79  Modern historic critical edition by Wolfgang Sellert (ed.), Die Ordnungen des Reichshofrates, 1550–1766, 2 vols., Cologne/Vienna, 1980–1990. 80  Wolfgang Sellert, Prozeßgrundsätze und Stilus Curiae am Reichshofrat im Vergleich mit den gesetzlichen Grundlagen des reichskammergerichtlichen Verfahrens, Aalen, 1973, pp. 78–84. 81  Instrumentum Pacis Osnabrugense (Westphalian Peace, 1648), Art. V § 55, in: Buschmann, Kaiser und Reich II, p. 60.

246

P. Oestmann

complex ordinance of the Imperial Aulic Council possible. Additionally, the Imperial Aulic Council tried not to be restricted by statutes. In contrast to the Imperial Chamber Court, it was known for its flexible stilus curiae and less formal approach to legal disputes.82 The degree of juridification was very much less than in the Imperial Chamber Court. One reason is the close connection to the emperor; the second reason is its multi-functional position as both court and council of the emperor. The closer the institution was linked to the person and political power of the emperor, the more of a hindrance were statutes which restricted the operation of its practical work. Even the nomenclature and terminology used in cases make this apparent. At the Imperial Chamber Court, one spoke about claims and processes. At the Imperial Aulic Council, one spoke about ‘causae’ (causes, cases).83 The terminology was diffuse on purpose and did not differentiate between matters of the court or the council. The low degree of formalisation caused the practice of the court, the stilus curiae, probably to have a more important role than it had at the Imperial Chamber Court. The recourse to formal statutes was mostly not practicable, but also not necessary. Another difference between the ordinance of the Imperial Aulic Council and the ordinance of the Imperial Chamber Court concerned the legislative process. At least the ordinances of the Imperial Chamber Court up to 1555 and the Latest Imperial Recess were passed as formal imperial recesses. In contrast, the ordinance of the Imperial Aulic Council was passed by the emperor himself without the involvement of the imperial Diet.84 The emperor let the estates discuss drafts of the Imperial Aulic Council’s ordinance though. The archchancellor of Mainz voted repeatedly for the ordinance but some Protestant estates and even some secular prince electors complained about the inadequate participation of the Diet in the drafting. But the emperor sent a clear signal in response and simply stopped involving the estates. The Imperial Aulic Council was officially linked just to the emperor and not to the estates of the empire. Therefore, the emperor did not want a precedent to be set, which would lead to participation of the estates or even worse the Diet in the regulation of the Aulic Council. The emperor also decided numerous

82  Sellert,

Prozeßgrundsätze, pp. 50, 93; Ortlieb, Prozeßverfahren, p. 117. Ortlieb, Frankfurt vor dem Reichshofrat, in: Anja Amend/Anette Baumann/ Stephan Wendehorst/Steffen Wunderlich (eds.), Die Reichsstadt Frankfurt als Rechtund Gerichtslandschaft im Römisch-Deutschen Reich, Munich, 2008, pp. 57–75 at 60–63; short introduction to the files by Wolfgang Sellert, Vorwort, in: idem (ed.), Die Akten des Kaiserlichen Reichshofrats. Serie I: Alte Prager Akten. Vol. 1: A–D, Berlin, 2009, pp. 7–17. 84  Introductory remarks to each ordinance of the Imperial Aulic Council by Sellert (ed.), Ordnungen. 83  Eva



The highest courts of the Holy Roman Empire247

special cases with so-called Imperial decrees.85 The common decrees (decreta communia) did not have the same impact at the Imperial Aulic Council as they had at the Imperial Chamber Court. The Imperial Aulic Council passed just over 100 Imperial decrees between 1614 and 1798; the Imperial Chamber Court by contrast proclaimed three times as many common decrees in total.86 Because of its political role, the Imperial Aulic Council had many other functions alongside its judicial function. It made certificates for the granting and revocation of privileges.87 Additionally, it was closely linked to the Imperial representative in Italy (Plenipotenz), with whom the Imperial Chamber Court was not concerned at all.88 Apart from these above mentioned details, the jurisdiction of the highest imperial courts was identical ratione personae and materiae. These courts decided at first instance claims against those who were immediate subjects of the empire, i. e. legal issues between and against territorial lords and nobles. There were sometimes special mediation processes prefixed before the imperial courts heard a case (Austrägalgerichte).89 In contrast to many European countries, the Holy Roman Empire recognised the possibility of suing one’s own territorial lord within an impartial forum sitting above that of the territorial courts.90 If one strand of a European-comparative project is to trace reforms in the jurisdiction and proceedings of supreme courts, this political 85  Sellert,

Prozeßgrundsätze, pp. 90–91. Oestmann (ed.), Gemeine Bescheide II; a contemporary, but incomplete set of statutes in Renatus Karl Freiherr von Senkenberg, Sammlung der den kaiserlichen Reichshofrath betreffenden Ordnungen und Verordnungen wie auch ReichskanzleiOrdnungen und gemeine Bescheide des Reichshofraths, Gießen, 1800, pp. 321–459. 87  Bernhard Diestelkamp, Zur ausschließlichen Zuständigkeit des Reichshofrats für die Kassation kaiserlicher Privilegien, in: Auer/Ogris/Ortlieb (eds.), Höchstgerich­ te, pp. 163–176. 88  Schnettger, ‘Principe sovrano’; idem, Kooperation und Konflikt. Der Reichshofrat und die kaiserliche Plenipotenz in Italien, in: Amend/Baumann/Wendehorst/Westphal (eds.), Gerichtslandschaft Altes Reich, pp. 127–129. 89  Nils Meurer, Die Entwicklung der Austrägalgerichtsbarkeit bis zur Reichskammergerichtsordnung von 1495, in: Anette Baumann/Peter Oestmann/Stephan Wendehorst/Siegrid Westphal (eds.), Prozesspraxis im Alten Reich. Annäherungen – Fallstudien – Statistiken, Cologne/Weimar/Vienna, 2005, pp. 17–52. The period after 1495 is not well researched; Siegrid Westphal, Austräge als Mittel der Streitbeilegung im frühneuzeitlichen Adel des Alten Reiches, in: Albrecht Cordes (ed.), Mit Freundschaft oder mit Recht? Inner- und außergerichtliche Alternativen zur kontroversen Streitentscheidung im 15.–19. Jahrhundert, Cologne/Weimar/Vienna, 2015, pp. 159–173. 90  Peter Oestmann, Menschenrechte und ihre Durchsetzung im Alten Reich, in: Georg Schmidt-von Rhein/Albrecht Cordes (eds.), Altes Reich und neues Recht. Von den Anfängen der bürgerlichen Freiheit, Wetzlar, 2006, pp. 57–74. 86  See

248

P. Oestmann

possibility has to be highlighted. The territorial lords had absolutely no interest in being easily sued at the highest imperial courts. In practical terms, a so-called ‘letter for report’ (Schreiben um Bericht) was established, which gave the territorial lord the chance to comment on the claim before suit was filed formally with a summons. Only if the comment left a reasonable chance for the claimant to succeed against the territorial lord, would the Imperial Chamber Court admit the claim. This ‘letter for report’ was introduced in the seventeenth century for all cases of subjects suing their lords. The Recess from 1600 ordered a ‘letter for report’ in the case of poor claimants when the poor law was applicable. The Latest Imperial Recess from 1654 extended the requirement to all proceedings of subjects against their territorial lords.91 For the subjects, it therefore became more and more difficult to bring a claim against their territorial lords.92 Apart from being the forum for proceedings between and against the immediate subjects of the Empire, the highest imperial courts were also the highest appellate courts for the various territories of the empire.93 They consequently had control over the courts of these territories, their procedural law and their application of substantive law. Appeal from the territories to the courts of the empire clarified jurisdictional relationships by demonstrating to the territories that there were no further courts between them and the highest courts. This showed that the territories were positioned legally in immediate jurisdictional proximity to the Empire. There were often conflicts about whether all territorial stages of appeal (within the jurisdiction of the territo91  Amend-Traut, Wechselverbindlichkeiten, pp. 38–39, 117–118, 193–194; Oestmann, Geistliche und weltliche Gerichte, p. 502; idem, Hexenprozesse, pp. 65, 77, 277–278; Sellert, Prozeßgrundsätze, pp. 181–191; Uhlhorn, Mandatsprozeß, pp. 124– 131. 92  In general on claims of subjects against their lords: Rita Sailer, Untertanenprozesse vor dem Reichskammergericht. Rechtsschutz gegen die Obrigkeit in der zweiten Hälfte des 18. Jahrhunderts, Cologne/Weimar/Vienna, 1999; Werner Troßbach, Gar herrlichen (…) zu lesen bei dem Zasio. Die Einbeziehung von Prozessen bäuerlicher Untertanen gegen ihre Obrigkeit in die Kameralliteratur, in: Friedrich Battenberg/Bernd Schildt (eds.), Das Reichskammergericht im Spiegel seiner Prozessakten. Bilanz und Perspektiven der Forschung, Cologne/Weimar/Vienna, 2010, pp. 63–91; Helmut Gabel, ‘Daß ihr künftig von aller Widersetzlichkeit, Aufruhr und Zusammenrottung gänzlich abstehet’. Deutsche Untertanen und das Reichskammergericht, in: Scheurmann (ed.), Frieden durch Recht, pp. 273–280. 93  Jürgen Weitzel, Zur Zuständigkeit des Reichskammergerichts als Appellationsgericht, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 90, 1973, pp. 213–245; idem, Der Kampf um die Appellation ans Reichskammergericht. Zur politischen Geschichte der Rechtsmittel in Deutschland, Co­logne/ Vienna, 1976; for the European perspective, see Leopold Auer/Eva Ortlieb (eds.), Appellation und Revision im Europa des Spätmittelalters und der Frühen Neuzeit, Vienna, 2013.



The highest courts of the Holy Roman Empire249

ries, as opposed to the empire) were exhausted or not. Such conflicts in the electorate of Cologne were notorious across the Empire and sometimes mentioned in statutes of the Empire. As archbishop, the elector of Cologne supervised suffragan bishoprics, from where litigants had traditionally been able to appeal to the highest imperial courts. However, the ecclesiastical elector favoured as the highest instance for civil litigation in secular as well as ecclesiastical cases his Catholic diocesan tribunal, the so-called Offizialat (consistory court of the Official), which functioned as a civil court too. After the diocesan tribunal of a suffragan bishopric had heard the case, the metropolitan diocesan court doubtless followed as the next stage of appeal, and then the Apostolic Nuncio and the Roman Rota. But if secular conflicts were allowed to be heard in the ecclesiastical courts, the secular jurisdiction of the Holy Roman Empire could not operate in those cases anymore. Numerous practical conflicts and hints in normative sources reveal the issue. The Imperial Chamber Court and the Imperial Aulic Council tried to restrict the jurisdiction of the Catholic Church in civil matters. The separation of ecclesiastical and secular courts was not implemented exhaustively though. The Latest Imperial Recess from 1654 and the so-called permanent imperial electoral law (ständige Wahlkapitulation), a contract between the emperor and the prince electors from 1711, give us evidence about the attempt to repress the ecclesiastic courts. The Imperial Chamber Court also acknowledged in a fundamental decision that on appeal both the secular and the ecclesiastical courts were competent and could operate parallel stages of appeal in the bishopric of Münster. A litigant should be able to appeal to the archbishop and also the Imperial Chamber Court against decisions of the diocesan tribunal in civil matters.94 Thus the problem was never finally resolved. At the interface between political frameworks and the limitations of jurisdiction lay the numerous privilegia de non apellando. They limited the parties’ opportunities to appeal to the two imperial courts against the judgments of the territorial courts. These privileges against appeals concerned the Imperial Aulic Council as well as to the Imperial Chamber Court.95 A closer look into changes in the jurisdictional framework within which the highest impe94  Oestmann, Geistliche und weltliche Gerichte, pp. 36–229; another example from the bishopric of Hildesheim by idem, Niedersächsisches Bauernrecht zwischen Kirche und Staat, in: Nils Jansen/Peter Oestmann (eds.), Rechtsgeschichte heute. Religion und Politik in der Geschichte des Rechts. Schlaglichter einer Ringvorlesung, Tübingen, 2014, pp. 165–180; for older research see Ulrich Eisenhardt, Die weltliche Gerichtsbarkeit der Offizialate in Köln, Bonn und Werl im 18. Jahrhundert, Cologne/ Opladen, 1966; idem, Zur Zivilgerichtsbarkeit der Offizialate im kurkölnischen Westfalen in der zweiten Hälfte des 18. Jahrhunderts, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, 56, 1970, pp. 406–411. 95  Eisenhardt, Privilegia.

250

P. Oestmann

rial courts had to work after around 1500 reveals a marked increase in privileges against appeals. At first, only the secular Electorates made use of the privilegia de non appellando and traced them – doubtfully from a legal perspective – back to a provision of the Golden Bull of 1356.96 Many other territories obtained privileges subsequently, albeit often only in a restricted form. Appeals to the highest imperial courts were precluded according to either defined limits in the value of claims or for certain subject-matter. The recipients of the privileges often advocated an increase of the minimum value of claims that could be brought before the highest courts of the Empire. Thus, access to the imperial courts became ever more difficult for subjects of the Empire. At the same time, the value limits of appeal were meant to relieve the burden of work of the imperial courts. Therefore, and independently from the content and application of the privileges, the Empire repeatedly raised the value threshold for the amount which needed to be in dispute for a valid appeal. This was not a mere inflationary adjustment, but a deliberate limitation of actions at the imperial courts. As long as limits to appellate claims were of a qualitative nature only, parties could still find ways to bring their cases before the imperial courts regardless of such limits. Constantly in issue at the imperial courts were cases involving guilds or Policeysachen (‘police affairs’ relating to local governance). These issues were believed to be non-appealable. Nevertheless, they were often taken to the imperial courts.97 Some other types of jurisdiction were identical at the Imperial Chamber Court and the Imperial Aulic Council as well. Next to regular lawsuits at first instance and on appeal, there were many specific matters in which the courts were competent. These were of specific importance for the perception of imperial courts. The procedure for interim relief (Mandatsprozesse) must be discussed first.98 The roots for this procedure are thought to lie in the medieval papal mode of proceeding by way of rescriptum (i. e. petitioning for a decision 96  Ulrich Eisenhardt, Die Rechtswirkungen der in der goldenen Bulle genannten privilegia de non evocando et appellando, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 86, 1969, pp. 75–96; Heiner Lück, Die kursächsische Gerichtsverfassung, 1423–1550, Cologne/Weimar/Vienna, 1997, pp. 35–42. 97  Peter Oestmann, Zunftzwang und Handelsfreiheit im frühen 19. Jahrhundert, in: Zeitschrift für Neuere Rechtsgeschichte, 26, 2004, pp. 246–261; Philipp Nordloh, Kölner Zunftprozesse vor dem Reichskammergericht, Frankfurt am Main, 2008; Wilfried Reininghaus, Zünfte vor dem Reichskammergericht. Beispiele aus Westfalen, in: Amend-Traut/Cordes/Sellert (eds.), Geld, pp. 43–60; Karl Härter, Das Reichskammergericht als ‘Reichspoliceygericht’, in: Friedrich Battenberg/Filippo Ranieri (eds.), Geschichte der Zentraljustiz in Mitteleuropa. Festschrift für Bernhard Diestelkamp zum 65. Geburtstag, Weimar/Cologne/Vienna, 1994, pp. 237–252. 98  Uhlhorn, Mandatsprozeß; Oestmann, Hexenprozesse, pp.73–80.



The highest courts of the Holy Roman Empire251

by papal decretal),99 but then it is also in large part a separate development in the practice of the Imperial courts since the 15th century. In contrast to appeals, the court’s judgment was issued in the very beginning of mandate litigation. As a process of interim legal protection, mandate litigation was a method to circumvent the restrictions of appeal. The 1555 procedural ordinance of the Imperial Chamber Court distinguished four situations, in which interim relief was available. One of them was imminent danger, characterized by the particular urgency of the case, as well as by the danger of irreparable damage. Apparent unlawfulness in the conduct of the sued party could lead to the issuing of a mandate.100 Thus, parties were enabled to bring matters of criminal law before Imperial courts. In mandate litigation, subjects could oppose impending torture where there was insufficient evidence as well as inadequate detention conditions, among other things, even though appeals to the imperial courts were non-admissible in criminal cases.101 In these four named situations, the mandates providing interim relief were issued without clausula iustificatoria.102 This meant that an Imperial Court’s mandamus was binding on the defendant – as long as the accuser had not obtained the mandate by false factual claims. Therefore, the possibilities for a defence were quite limited for the party burdened with the mandate. He could only claim so-called exceptiones sub- et obreptionis, stating that his opponent had lied and obtained interim relief through deceit. When he did not succeed with such a defence, the Imperial Court issued a sententia paritoria103 which obliged the opponent to declare or to give evidence that he obeyed the orders of the court. Orders like this could not only be issued between subjects and superior authorities. Such orders were issued in civil cases in general, for instance in matters of unlawful distraints. If not all conditions of an order without clausula iustificatoria were fulfilled, the Imperial Courts could issue a mandatum cum clausula. In this weaker case, the defendant could make use of all possible defences. If the defendant then brought forward an exception, de facto litigation for interim relief would be transformed into an ordinary civil lawsuit, starting with a formal summons. The provisional order lost its binding force. 99  Ernst Pitz, Papstreskript und Kaiserreskript im Mittelalter, Tübingen, 1971; Uhlhorn, Mandatsprozeß, pp. 27–47. 100  Reichskammergerichtsordnung 1555, pt 2, title 23, in: Laufs, Reichskammergerichtsordnung, pp. 200–201. 101  Oestmann, Hexenprozesse, pp. 51–62, 73–80; Szidzek, Verbot der Appellation. 102  For further details cf. Peter Oestmann, Mandatsprozess, in: Handwörterbuch zur deutschen Rechtsgeschichte, 2nd ed., vol. 3, Berlin, 2015, cols. 1229–1234. 103  Example in Uhlhorn, Mandatsprozeß, pp. 183–184.

252

P. Oestmann

Actions for interim relief are of special importance in recent scholarly debate on the judicial tasks of the imperial courts.104 Interim relief is of importance where amicable settlement of disputes is concerned and also in order to explain why lawsuits in early modern courts fizzled out so often, without ever reaching final judgement.105 All the claimants in mandate litigation aimed at procuring a fast judgement, and with every mandate issued, the imperial courts really acted as decision-making judges and not only as mediators. Three other kinds of jurisdiction should be mentioned briefly. Firstly, there was a possibility to call upon the imperial courts by action for annulment. Using the citatio super nullitate, the claimants did not protest against a false judgement of a lower instance court, but against a substantial infringement of the law by territorial courts.106 If and when obligatory procedural regulations were breached, the imperial courts could explicitly annul the lawsuit at the territorial court. This procedure was explicitly provided for by procedural ordinance (Kammergerichtsordnung) of the Imperial Chamber Court as a surrogate for the prohibited appeal in criminal cases. However, the action for annulment could only address procedural wrongs or mistakes already committed. Insofar as it was about averting prospective dangers, claimants had to try to file an action for interim relief (Mandatsprozesse). Litigation for annulment instead of an appeal was called an action brought principaliter. Its competence was seldom called into question. Incidental invalidities were much more complicated. Some parties tried to combine an appeal with an action for annulment. Annulment was used to circumvent the rules for appeals, thereby rendering even the privileges against appeal redundant. A combination of the action for annulment and the appeal would have chained the territories of the Holy Roman Empire much closer to the imperial courts than they would have liked. The legal practice of the highest imperial courts indeed shows great caution in this respect. As long as no appeal could be brought on the merits, the imperial courts refrained from addressing annulment.107 The risk was that involving the imperial courts in procedural matters 104  See observations in Peter Oestmann, Die Rekonstruktion der reichskammergerichtlichen Rechtsprechung des 16. und 17. Jahrhunderts als methodisches Problem, in: Anette Baumann/Siegrid Westphal/Stephan Wendehorst/Stefan Ehrenpreis (eds.), Prozeßakten als Quelle. Neue Ansätze zur Erforschung der Höchsten Gerichtsbarkeit im Alten Reich, Cologne/Weimar/Vienna, 2001, pp. 15–54 at 38–41. 105  Overview in Anja Amend-Traut, Wie Prozesse enden können – alternative Formen der Beendigung reichskammergerichtlicher Zivilverfahren im 17. und 18. Jahrhundert, in: Cordes (ed.), Mit Freundschaft, pp. 233–260. 106  Reichskammergerichtsordnung 1555, pt 2, title 28, § 5, in: Laufs, Reichskammergerichtsordnung, pp. 206–207; Oestmann, Hexenprozesse, pp. 63–73. 107  On the relation between appeal and citatio super nullitate, see Karin Nehlsenvon Stryk, Appellation und Nichtigkeitsklage aus der Sicht der frühen Kameralistik, in: Auer/Ortlieb (eds.), Appellation, pp. 87–102 (with English summary).



The highest courts of the Holy Roman Empire253

of annulment represented an intervention in territorial jurisdiction which was of wider scope than the privileges against appeal envisaged. A further issue was the danger that procedural breaches could be used to pursue an action for annulment, and smuggle into the imperial courts a case which then could be reviewed more generally in substance on the merits, thus defeating the privilege against appeal. Litigation at the imperial courts because of delay or even denial of justice (protracted and denegated justice) has been hinted at above. In these cases, the Imperial Aulic Council and the Imperial Chamber Court were in a position to supervise the proper organization and administration of justice in the individual territories within the empire. In principle, this was an important competence, even if such cases were very rare in practice.108 However, it was well-recognized that the territories of the Holy Roman Empire were not sovereign in judicial matters, but were subject to imperial supervision. If an imperial court did take action because of denial of justice, this must have meant a certain loss of reputation for the relevant territorial sovereign. When the inadequate state of a territory’s justice system could be denounced at the level of the imperial courts, i. e. Empire-wide, it is probable that the territorial sovereigns were encouraged to prevent such embarrassment by organizing their courts correctly in the first place and avoiding excessive delays. Indirect effects like this cannot be proven from the sources, although there is much to be said which may point to their existence. For defining the relationship between the Imperial Chamber Court and the Imperial Aulic Council, there is one particularly informative observation: apparently, parties to cases at the Imperial Chamber Court sometimes complained about the duration of their cases directly to the emperor or the Imperial Aulic Council. The Imperial Aulic Council repeatedly issued orders called promotoriales addressed to the Imperial Chamber Court.109 In these, the Imperial Aulic Council would prompt the Imperial Chamber Court to accelerate certain lawsuits or procedural steps in order to see justice being done to the litigants more quickly. Such instructions indicate that the Imperial Aulic Council considered itself authorised to give orders in such matters to the Imperial Chamber Court (though this was not necessarily accepted by that court).110 The promotoriales were issued in the emperor’s name, and the emperor as the formal head of justice was undoubtedly in a position of authority regarding the Imperial Chamber Court. Still, personal involvement of the 108  Oestmann,

Rechtsverweigerung. Rechtsverweigerung, pp. 122–124. 110  Gschließer, Reichshofrat, p. 29; Markus Senn, Der Reichshofrat als oberstes Justizorgan unter Karl V. und Ferdinand I. (1519–1564), in: Amend/Baumann/Wendehorst/Westphal (eds.), Gerichtslandschaft, pp. 27–39 at 28. 109  Oestmann,

254

P. Oestmann

monarch in the Chamber Court’s business was unusual and alarming. The Imperial Chamber Court’s common decrees (Gemeine Bescheide) contain only very few cases in which the Court expressly followed an imperial order in the making of its own legislation.111 The assessors in Speyer and later Wetzlar also disregarded the writs of promotion with impunity. They were not willing to accept the higher status of the Imperial Aulic Council. An assertion as far-reaching as is nowadays sometimes postulated – that the Imperial Aulic Council even exercised some kind of supervision over the Imperial Chamber Court – is not supported by the contemporary sources.112 On the contrary: the imperial electoral capitulation (Wahlkapitulation) of the eighteenth century forbade the Holy Roman Emperor to direct the Imperial Chamber Court through his Imperial Aulic Council.113 In practice, these cases still occurred occasionally,114 even though they were against the Empire’s norms. Finally, extrajudicial appeals (Extrajudizialappellationen) must be mentioned as the remaining area of competence of the Imperial Courts.115 Such appeals could be lodged against unlawful administrative acts. When a territorial authority did not initiate a formal legal action in court, but nevertheless acted prejudicially against a subject, the subject could oppose the authority’s decisions by filing a case at the imperial courts (exemplifying an early form of administrative law). Thus, extrajudicial appeals are part of the wider field of litigation between territorial subjects and territorial authorities. Especially when these authorities had acted without hearing the parties, extrajudicial appeals would have good prospects. Eventually, such recourse offered an early form of administrative legal protection i. e. judicial review – at a time, when, in principle, administrative acts could not be investigated by courts.116 111  Oestmann

(ed.), Gemeine Bescheide I, pp. 634–639, 712–713, 737–738, 798. Weitzel, review of: Amend/Baumann/Wendehorst/Westphal (eds.), Gerichtslandschaft, in: Zeitschrift für Neuere Rechtsgeschichte, 30, 2008, pp. 297–298 at 298; Oestmann, Geistliche und weltliche Gerichte, p. 294. 113  Art. VI of the draft of the permanent electoral capitulation (Wahlkapitulation) from 1711, in: Wolfgang Burgdorf (ed.), Die Wahlkapitulationen der römischdeutschen Könige und Kaiser, 1519–1792, Göttingen, 2015, pp. 294–296. 114  Wolfgang Sellert, Richterliche Unabhängigkeit am Reichskammergericht und am Reichshofrat, in: Recht und Verfassung in Hessen. Vom Reichskammergericht zur Landesverfassung, Wiesbaden 1995, pp. 39–47 at 41; Oestmann, Rechtsverweigerung, p. 124. 115  Tilman Seeger, Die Extrajudizialappellation, Cologne/Weimar/Vienna, 1992; Peter Oestmann, Extrajudizialappellation, in: Handwörterbuch zur deutschen Rechtsgeschichte, 2nd ed., vol. 1, cols. 1457–1458; idem, Hexenprozesse, pp. 83–85. 116  Karl Kroeschell, Justizsachen und Polizeisachen, in: Gerichtslauben-Vorträge. Freiburger Festkolloquium zum 75. Geburtstag von Hans Thieme, Sigmaringen, 1983, pp. 57–72; Nordloh, Kölner Zunftprozesse, pp. 35–42; on the history of the administrative courts Thomas Olechowski, Verwaltungsgerichtsbarkeit, in: Friedrich Jaeger 112  Jürgen



The highest courts of the Holy Roman Empire255

These numerous types of jurisdiction, especially the possibility of bringing actions against the territorial sovereign and other authorities, attest the development of the Holy Roman Empire towards a formal Rechtsstaat.117 The various court instances and successive stages of appeal were tightly organized and often provided remarkably effective legal protection. Nevertheless, it was not uncommon for proceedings to be lengthy, and the number of judgments was low.118 These difficulties must not be overlooked or minimised in retrospect. From a subject’s perspective however, imperial justice was the source of justice par excellence. Probably it is exactly this which explains why many parties went to considerable lengths to seek relief at the Imperial Chamber Court or the Imperial Aulic Council. Testimonies are known from the early seventeenth century in which alleged witches and their relatives put all their hopes on the Imperial Chamber Court or the Imperial Aulic Council. In Baden, the wife of a wine-grower beseeched her husband to abandon the grape harvest and ride to the Imperial Chamber Court’s seat in Speyer, where he was meant to advocate her cause.119 The personal presence of the parties in Speyer or Wetzlar had nothing to do with grumbling or troublemaking. In contrast: parties travelled frequently to the imperial courts’ seats and supported their causes personally, although they were already represented by lawyers. The court as such seemed to be a symbol of justice. In the 18th century, opposite tendencies can be observed. Jokes about the slow and careless work of the Imperial Chamber Court circulated, and it was ridiculed as the Reichsjammergericht (‘imperial misery court’ or ‘court of lamentation’). It was claimed that only files which were attached to a cellar’s ceiling with a thread were worked on. An assessor would supposedly only pick a file up after a mouse had bitten through the thread.120 This venomous (ed.), Enzyklopädie der Neuzeit, 14, 2011, cols. 266–268 (with literature); Oestmann, Wege zur Rechtsgeschichte, p. 217. 117  Bernhard Diestelkamp, Reichskammergericht und Rechtsstaatsgedanke. Die Kameraljudikatur gegen die Kabinettsjustiz, Heidelberg, 1994; Jürgen Weitzel, Das Reichskammergericht und der Schutz von Freiheitsrechten seit der Mitte des 18. Jahrhunderts, in: Bernhard Diestelkamp (ed.), Die politische Funktion des Reichskammergerichts, Cologne/Weimar/Vienna, 1993, pp. 157–180; on scholarly debate after the Second World War cf. Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland. Vol. 4: Staats- und Verwaltungsrechtswissenschaft in West und Ost, 1945–1990, Munich, 2012, pp. 211–216. 118  Statistical approach to the quota of decisions of the Chamber Court by Manfred Hörner, Anmerkungen zur statistischen Erschließung von Reichskammergerichtsprozessen, in: Baumann/Westphal/Wendehorst/Ehrenpreis (eds.), Prozeßakten, pp. 69–81. 119  Oestmann, Hexenprozesse, pp. 467–470; Ernst Hermann, Die Hexen von Baden-Baden, Karlsruhe, c. 1890, p. 51. 120  Adolf Stölzel, Die Entwicklung der gelehrten Rechtsprechung. Vol. 2: Billigkeits- und Rechtspflege der Rezeptionszeit in Jülich-Berg, Bayern, Sachsen und

256

P. Oestmann

lampooning might have been based in truth or not. The Imperial Chamber Court indeed changed into a court of appeal for the imperial city of Wetzlar. The Empire-wide recognition of the court seems to have been on the wane afterwards.121 Interestingly enough, the Imperial Aulic Council did not suffer from such mockery. The connection to the Habsburg emperor secured a higher political standing for the Imperial Aulic Council, even though it was not purely an imperial court.122 The previous comments lead to another issue – changes in the powers or practical activity of the imperial courts in the course of the three centuries between 1500 and 1800. The surviving records provide a good measure for the reconstruction of the practical activity of the two highest imperial courts. There are around 70,000 case records preserved from the Imperial Chamber Court.123 At the Imperial Aulic Council, it is difficult to determine the number of cases (causae). Exact figures are not known, but there must have been at least 100,000.124 Therefore, the Imperial Aulic Council must have developed even more judicial activity than the Imperial Chamber Court. However, the conditions of research are different. Research into the Imperial Chamber Court has concentrated for the last 50 years on the Imperial Court at Speyer and Wetzlar, while research into the Imperial Aulic Council is of more recent date and lags behind in comparison. Of course, this reflects the state of indexing of the files, which took place much later for files of the Aulic Council than for the Imperial Chamber Court. The Imperial Chamber Court’s files in numerous German and some foreign archives have been inventoried according to modern standards since the 1970s.125 By contrast, the files of the ImBrandenburg, Berlin, 1910, p. 115; Oestmann: Geistliche und weltliche Gerichte, p. 294. 121  Overview of the files in Jost Hausmann (ed.), Abt. 1: Reichskammergericht. Vol. 3: Prozeßakten des preußischen Kreises und der Stadt Wetzlar, 2 vols., Wiesbaden 1984–1986; also see Georg Schmidt-von Rhein, Das Reichskammergericht in Wetzlar, Wetzlar, 1990, pp. 26–28. 122  Smend, Reichskammergeicht, pp. 222–224. 123  Battenberg/Schildt, Reichskammergericht, pp. 423–427. 124  The exact number is unknown, cf. Ulrich Rasche, Urteil versus Vergleich? Entscheidungspraxis und Konfliktregulierung des Reichshofrats im 17. Jahrhundert im Spiegel neuerer Aktenerschließung, in: Cordes (ed.), Mit Freundschaft, pp. 199– 232 at 203–204: 70,000 to 80,000 cases; Tobias Schenk, Die Wiener ‘Reichsarchive’ und die Akten des kaiserlichen Reichshofrats als ostwestfälische Geschichtsquellen, in: Die Warte, 151, 2011, pp. 6–10 at 9: far more than 100,000 files; Oestmann, Wege zur Rechtsgeschichte, pp. 168–169. 125  Bernhard Diestelkamp, Rückblick auf das Projekt zur Inventarisierung der Reichskammergerichtsakten, in: Battenberg/Schildt, Reichskammergericht, pp. 3–9; Jost Hausmann, Die Verzeichnung von Reichskammergerichts-Akten. Ein Erfahrungsbericht, in: Wolfgang Sellert (ed.), Reichshofrat und Reichskammergericht. Ein Konkurrenzverhältnis, Cologne/Weimar/Vienna, 1999, pp. 241–251.



The highest courts of the Holy Roman Empire257

perial Aulic Council have been made accessible only in recent years. In 2009, the first volume of the printed inventory of the court files was published.126 Although most of the files are stored in Vienna, and in spite of the work involved in a 25-year project, it has so far not been possible to draft an inventory for any more than 10 % of the files.127 Still, a sufficient view of practice and developments is possible, as well as discussions about reform. The focus lies mainly on the application of law, on improving the quality of litigation, on enforcement of judgments and – especially at the Imperial Aulic Council – on the popular practice of using commissioners and committees in court proceedings.128 Here the judicial basis of decision-making requires comment. The Imperial Chamber Court’s procedural laws were closely modelled on Romanocanonical civil procedure. The Imperial Aulic Council also took inspiration from the example of the ius commune, although it could act much more freely in procedural matters.129 Historical studies have often discussed to what extend the Imperial Chamber Court encouraged the application of Roman-Canon law and thereby the reception of Roman law in the Old Empire. Traditionally, the Imperial Aulic Council did not play such a prominent role in discussions of scholars. This was different where it concerned methodical and source-related questions, particularly because the case files had not been studied in depth, and court decisions were not published. At the beginning of the current discussion about the Imperial Chamber Court and reception, German legal history mainly concentrated on the history of norms and applied this to the procedural orders of the Imperial Chamber Court from 1495 to 1555, which included their famous clauses on the application of law which said that the court had to consider the ius commune and those local statutes of which the parties had provided evidence. As there were no comparable sources from the Imperial Aulic Council’s sphere, the entire focus shifted onto the Imperial Chamber Court. The Imperial Chamber Court has always been viewed as an important pace-setter of the reception of Roman law, which is certainly true. The exemplary effect towards modern file-keeping in court administration, the textualisation of procedural law, the introduction of successive stages of appeal and more, has already been briefly mentioned 126  Sellert, Akten I/1; idem, Projekt einer Erschließung der Akten des Reichshofrats, in: idem, Reichshofrat und Reichskammergericht, pp. 199–210. 127  See the very impressive diagram in Rasche, Urteil versus Vergleich, p. 204. 128  On these committees Eva Ortlieb, Im Auftrag des Kaisers. Die kaiserlichen Kommissionen des Reichshofrats und die Regelung von Konflikten im Alten Reich (1637–1657), Cologne/Weimar/Vienna, 2001; Sabine Ullmann, Geschichte auf der langen Bank. Die Kommissionen des Reichshofrats unter Kaiser Maximilian II., 1564–1576, Mainz, 2006. 129  Sellert, Prozeßgrundsätze, pp. 84–92.

258

P. Oestmann

above. In particular, the linkage of the court to the substantive Roman-Canon law was meaningful. Since 1495, the assessors at the Imperial Chamber Court had to take an oath of office which included judging by the ‘Empire’s common laws’ (nach des Reichs gemainen Rechten).130 This clause on the application of law also contained references to the commendable and wellestablished local customs and statutes, but only if they had been ‘put forth’ (die für sy pracht werden). This was borrowed clearly from the commonly known theory of statutes of the learned law. The law of the local jurisdiction blocked the application of the law of the superior jurisdiction. However, through strict interpretation, the particular laws were meant to be understood in a way least divergent from the learned law. Later periods knew the ‘fundata intentio’ for application of laws by judges: it was a presumption of validity in favour of the Roman-Canon law.131 The ius commune, which was supposed to be of only subsidiary validity, was now always to be applied unless the parties had cited and proven a deviating particular local law. The older historical literature has often linked the practical effects of this doctrine of the application of laws to national policies. There was talk of ‘foreign’ infiltration, of the repression of the local laws, etc.132 From a more neutral perspective, it may rather be stated that the Imperial Chamber Court contributed tremendously to the unification of German law. It is easily overlooked that the relationship between Roman-Canon law and local laws changed under the Imperial Chamber Court’s doctrine of the application of laws after 1555. The imperial circles (Reichskreise) were advised to consider the knowledge of candidates of particular laws when they were applying for a judicial position as assessor. Thereby, the application of law by judges was federalized.133 Then, the part of the Imperial Chamber Court’s clause on the application of law that said that the particular law had to be ‘put forth’ was dropped in the Latest Imperial Recess (Jüngster 130  Reichskammergerichtsordnung 1495, § 3, cf. Oestmann, Rechtsvielfalt, pp. 436– 437; Wolfgang Wiegand, Studien zur Rechtsanwendungslehre der Rezeptionszeit, Ebelsbach, 1977, pp. 162–180. 131  Wolfgang Wiegand, Zur Herkunft und Ausbreitung der Formel ‘habere fundatam intentionem’, in: Sten Gagnér/Hans Schlosser/Wolfgang Wiegand (eds.), Festschrift für Hermann Krause, Cologne/Vienna, 1975, pp. 126–170; see short summary of the background in Peter Oestmann, Gemeines Recht und Rechtseinheit. Zum Umgang mit Rechtszersplitterung und Rechtsvielfalt in Mittelalter und Neuzeit, in: Eva Schumann (ed.), Hierarchie, Kooperation und Integration im Europäischen Rechtsraum. 17. Symposion der Kommission ‘Die Funktion des Gesetzes in Geschichte und Gegenwart’, Berlin/Boston, 2015, pp. 1–49 at 12–15, 18–25. 132  See remarks on this discussion in Peter Oestmann, Germanisch-deutsche Rechtsaltertümer im Barockzeitalter – eine Fallstudie, Wetzlar, 2000, p. 5. 133  Visitation Recessus (‘Visitationsabschied’), Speyer 18 May 1556, § 19, in: Ludolff, Corpus Juris Cameralis, p. 202; Oestmann, Rechtsvielfalt, pp. 441–442.



The highest courts of the Holy Roman Empire259

­Reichsabschied) in 1654. Furthermore, the sequence of the sources of law was reversed. The particular (local) laws, not the Roman law, ranked first now.134 There were common decrees at the close of the 17th and the beginning of the 18th century that compelled the territorial authorities to send their local law in written form to the court in Wetzlar, so that it could be considered. For this reason, the local law was much more appreciated in and apparent from the normative sources.135 At the same time, members of the Imperial Chamber Court such as Georg Melchior Ludolff began to collect local sources of law and to publish them in print.136 Thus, the reference to the Imperial Chamber Court as the pace-setter of the reception of RomanCanon law falls short of the mark. Until the 18th century, dependence on the fundata intentio theory can be proven, for example in a well investigated lawsuit from the Hanseatic city of Lübeck which occupied the Imperial Chamber Court for years.137 Simultaneously, hints of an independent usage of sources of local law by contemporary scholars and courts (i. e. as bodies of law applicable outside the framework of Roman-Canon law) became more frequent, especially for norms from the bigger territories. This was no conscious reform, but the importance of the adopted Roman-Canon law changed in the course of early modern times, and the two imperial courts provide the most striking examples.138 Important reform efforts aimed at the acceleration of litigation. Recorded discussions of reform proposals can be found particularly in relation to the Imperial Chamber Court. There was less of a difficulty for the Imperial Aulic Council, as litigation there were less formal.139 The aim was to avoid delay at the Imperial Chamber Court. Therefore the court limited by common decrees the number of valid procedural steps which could be deployed by each party in a lawsuit through pleading under the written procedure. The suspensive effect of revision, a particular kind of remedy, was meant to be abolished as well in order to discourage defeated parties from appealing against 134  Oestmann,

Rechtsvielfalt, pp. 447–449. (ed.), Gemeine Bescheide I, pp. 585–587, 714–715; idem, Rechtsvielfalt, p. 452–453. 136  Georg Melchior von Ludolff (ed.), Collectio quorundam statutorum provinciarum et urbium Germaniae, in: idem, Variae observationes forenses, Wetzlar, 1734. 137  Report written by Chamber Court assessor Johann Wilhelm Summermann in May 1756, in: Peter Oestmann, Ein Zivilprozeß am Reichskammergericht. Edition einer Gerichtsakte aus dem 18. Jahrhundert, Cologne/Weimar/Vienna, 2009, pp. 519– 571. 138  General information on the rise of German studies (Germanistik) in law, legal theory and legal practice by Frank Ludwig Schäfer, Juristische Germanistik. Eine Geschichte der Wissenschaft vom einheimischen Privatrecht, Frankfurt am Main, 2008, pp. 77–294. 139  Ortlieb, Prozeßverfahren, pp. 117–138. 135  Oestmann

260

P. Oestmann

the judgements of the Imperial Chamber Court.140 However, the Court found itself unable to manage other problems. Many deficiencies were known, but apparently impossible to eliminate. One of them was the question whether appellants could submit new evidence or whether the appeal procedure was limited to only revising the judgment of the lower instance court. There were several common decrees by the Imperial Chamber Court on this question, a half-hearted regulation in the Latest Imperial Recess of 1654 and extensive discussions in the cameralistic literature from the mid-17th century.141 The difficult relationship between oral and written procedures at the Imperial Chamber Court remained unresolved as well. Again, this was less of an issue for the Imperial Aulic Council, where public hearings for the ceremonial pronouncement of judgement were held only in the earliest period of its existence. This practice virtually ended after 1600.142 At the Imperial Chamber Court on the other hand, written proceedings were supplemented by socalled audiences which were held several times a week.143 There, the cases were called and the lawyers filed the writs for the parties they represented and recited the required concomitant judgments, which were called recesses. However, this system of hearings with all its detailed deadlines and formalities never worked. Too often, the lawyers began to plead and started legal debates, which drew out the length of the audiences. But the more the court tried to repress orality, the more formal and tedious the oral proceedings became. Eventually very few assessors attended the hearings. The procurators stayed away from the hearings as well, with the strangest explanations – even though participation was meant to be strictly compulsory. This illustrates the substantial differences between the proceedings prescribed in the procedural orders and the routine practice in court. Those involved were aware of the practical defects, which led to numerous ineffective attempts at reform. The preambles of the common decrees even show how the assessors prompted the lawyers to suggest new ideas to enhance the reform of the 140  Johann Ulrich von Cramer, Wetzlarische Nebenstunden, worinnen auserlesene beym Höchstpreißlichen Cammergericht entschiedene Rechts-Händel zur Erweiterund Erläuterung der Deutschen in Gerichten üblichen Rechts-Gelehrsamkeit angewendet werden, pt 76, Ulm, 1768, pp. 17–18; Oestmann (ed.), Gemeine Bescheide I, pp. 42, 307–309. 141  Important is Ludolf Hugo, Vom Missbrauch der Appellation, edited and with an introduction by Peter Oestmann, translated by Bernd-Lothar von Hugo, Vienna/Cologne/Weimar, 2012 (in Latin: De abusu appellationum, 1662). 142  For one of the few examples cf. Stefan Ehrenpreis, Kaiserliche Gerichtsbarkeit und Konfessionskonflikt. Der Reichshofrat unter Rudolf II., 1576–1612, Göttingen, 2006, pp. 39–40. 143  Bernhard Diestelkamp, Beobachtungen zur Schriftlichkeit im Kameralprozeß, in: Oestmann (ed.), Formstrenge, pp. 105–115.



The highest courts of the Holy Roman Empire261

procedural law.144 Of course, there were limits too, which stemmed from the unfortunate blending of orality with written modes of communication. The problem was never resolved.145 In so far as the relation between the norms in the procedural ordinances and the practical handling of cases is concerned,146 the habit of setting up committees must be mentioned in connection with the Imperial Aulic Council’s sphere of activity. The issue here was to find a commissioner, often from an imperial estate, who resided in geographical proximity to the parties. This commissioner attempted to negotiate with the parties on site and to reach an amicable settlement. It is well known that the Imperial Aulic Council issued even fewer judgments than the Imperial Chamber Court.147 Still, it seems to have had been astoundingly effective in its approach, at least in achieving settlements and other compromises. The committees set up by the Imperial Aulic Council have attracted the attention of modern historians.148 It has become fashionable to focus on arbitration in modern historical research.149 From this perspective the Imperial Aulic Council’s activities are seen as very positive. But it should not be overlooked that there were limits that were already recognized by contemporaries: when a party was in fact in urgent need of a judgement, it was often the case that it was simply not issued. Moreover, another problem existed. The judgments of the highest Imperial Courts were difficult to enforce in practice. The procedural ordinances envisaged several methods, culminating in enforcement through the sovereigns of

144  Oestmann

(ed.), Gemeine Bescheide I, pp. 393–394. (ed.), Gemeine Bescheide I, pp. 53–57. 146  Some methodological remarks on this general problem in Peter Oestmann, Normengeschichte, Wissenschaftsgeschichte und Praxisgeschichte. Drei Blickwinkel auf das Recht der Vergangenheit, in: Social Science Research Network (http://papers. ssrn.com/sol3/papers.cfm?abstract_id=2526811 [31 October 2014]) = Max Planck Institute for European Legal History research paper series, No. 2014–06, pp. 1–10. 147  There is no statistical research on the quantity of final judgements; general remarks on judgments in Sellert, Prozeßgrundsätze, pp. 339–372; Oestmann, Wege zur Rechtsgeschichte, p. 169. 148  Ortlieb, Im Auftrag; idem, Gerichtsakten und Parteiakten. Zur Überlieferung der kaiserlichen Kommissionen des Reichshofrats, in: Baumann/Westphal/Wendehorst/Ehrenpreis (eds.), Prozeßakten, pp. 101–118; Ullmann, Geschichte; Ehrenpreis, Kaiserliche Gerichtsbarkeit, pp. 53–58. 149  For the Frankfurt LOEWE-project cf. the homepage http://www.konfliktloe sung.eu (in German, English, French and Spanish); focused on the imperial courts: Cordes (ed.), Mit Freundschaft; early remarks made by Bernhard Diestelkamp, Das Reichskammergericht im Rechtsleben des 16. Jahrhunderts, in: idem, Recht und Gericht im Heiligen Römischen Reich, Frankfurt am Main, 1999, pp. 213–262 at 257. 145  Oestmann

262

P. Oestmann

the Imperial Circles (Reichsskreise).150 However, this means of leverage often failed, especially in cases of political importance. Perhaps this was the reason why the imperial courts, particularly the Imperial Aulic Council, favoured settlements so much. Of course, the customary law’s requirement of a general consensus of lay assessors in delivering judgment was rendered redundant by the reception of Roman-Canon law. But still, the court could appear powerless when judgments dissipated without any practical effects or implementation, which could be another reason why the Imperial Aulic Council passed so few judgments.151 Then again, there are indications that the impending enforcement of the judgment made parties relent. When in the eighteenth century Frederick the Great was meant to enforce a judgment in the name of the Holy Roman Empire against the Catholic prince-bishop of the small prince-bishopric of Hildesheim, the small diocese yielded quickly.152 The result was peculiar, as it concerned the same Prussian king whose soldiers and border officials imprisoned and banished messengers of the Imperial Chamber Court when they had dared to deliver the court’s summons or other instructions within the Kingdom of Prussia.153 In other cases, the Imperial Chamber Court was ready to ensure the enforcement of its judgments with forceful measures, for example where it concerned enforcement by procurators of the Imperial Chamber Court against their own clients who had failed to pay the fees due. Upon the claimant’s application, the Imperial Chamber Court plainly initiated default proceedings when debtors did not appear duly at the appointed hearings. The Court threatened them with the imperial ban and proscription (declaring them an outlaw, the so-called Reichsacht) and even inflicted it on them occasionally. As this meant being completely stripped of legal rights and protection this was in theory considered the severest possible sanction in the Old Empire.154 150  Wolfgang Sellert, Vollstreckung und Vollstreckungspraxis am Reichskammergericht und am Reichshofrat, in: Walter Gerhardt/Uwe Diederichsen/Bruno Rimmelspacher/Jürgen Costede, (eds.), Festschrift für Wolfram Henckel zum 70. Geburtstag, Berlin/New York, 1995, pp. 817–839. 151  Oestmann, Wege zur Rechtsgeschichte, p. 169. 152  Oestmann, Niedersächsisches Bauernrecht, pp. 177–179; idem, Geistliche und weltliche Gerichte, p. 267. 153  Some examples in Wolfgang Sellert, Die Ladung des Beklagten. Eine Auswertung von Kammerbotenberichten, in: Zeitschrift der Savigny-Stiftung für Rechts­ geschichte. Germanistische Abteilung, 84, 1967, pp. 202–235; Oestmann: Wege zur Rechtsgeschichte, p. 186. 154  Peter Oestmann, Streit um Anwaltskosten in der frühen Neuzeit. Part 1: Methodische Grundlegung, Anwaltsverträge und Bezahlungsarten, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 132, 2015, pp. 152–218; idem, Part 2: Gerichtszuständigkeit und Verfahrensarten, in: ibid. 133, 2016, pp. 191–295 at 202, 205–208; for further information on proscription in early



The highest courts of the Holy Roman Empire263

With regard to the acceptance of the activities of the imperial courts, it must be mentioned that many parties tried to elude lawsuits at the imperial courts. Only seldom was this because of an absolute rejection of the general jurisdiction of the courts, but defendants often brought exceptiones fori declinatoriae, by which they denied the imperial courts’ jurisdiction for their particular case.155 Depending on how the argument was formed, it was possible to evade the merits of the case. This was straightforward because the Imperial Chamber Court retained until well into the eighteenth century the Roman-canonical litis contestatio as a juncture in the proceedings of the Chamber Court prior to which such declinatory exceptions had to be raised.156 Thus, lawsuits could come to a standstill in their early stages before litis contestatio if one party objected to the jurisdiction of the Court and this issue was not resolved by an interlocutory judgement. As far as can be seen, contemporaries were sensible to the difficulties of imperial jurisdiction and the shift between the wider legal framework and the stilus curiae. The voluminous literature on the Chamber Court investigates these questions in detail. Most of the authors were assessors, procurators or advocates themselves and knew the Imperial Chamber Court’s activities from their own experience.157 In some cases, the proposals for reforms in the literature were quite radical and excited the discontent of the Court’s members. In one instance, the advocate and procurator Damian Ferdinand Haas fell into disgrace and was finally dismissed from office after he criticized the conditions at court.158 Similar discussions are known from the Imperial Aulic Council, although not to the same intensity. From the mid-eighteenth century, quite a few authors, who were jurists of imperial law, described the promodern times cf. Joseph Poetsch, Die Reichsacht im Mittelalter und besonders in der neueren Zeit, Breslau, 1911; Matthias Weber, Die Bedeutung der Reichsacht in der Frühen Neuzeit, in: Johannes Kunisch (ed.), Neue Studien zur frühneuzeitlichen Reichsgeschichte, Berlin, 1997, pp. 55–90. 155  Many examples in Oestmann, Geistliche und weltliche Gerichte, pp. 65, 313, 364, 473, 531, 552, 631, 653, 662, 673, 691, 697, 710. 156  Steffen Schlinker, Litis Contestatio. Eine Untersuchung über die Grundlagen des gelehrten Zivilprozesses in der Zeit vom 12. bis zum 19. Jahrhundert, Frankfurt am Main, 2008; idem, Die litis contestatio im Kameralprozess, in: Oestmann (ed.), Zwischen Formstrenge, pp. 139–164. 157  Peter Oestmann, Kameralliteratur, in: http://www.zeitenblicke.de/2004/03/oest mann3/index.html; the best overview of the older literature is provided in Fahnenberg, Litteratur; very important and helfpul is also Heinrich Gehrke, Die privatrechtliche Entscheidungsliteratur Deutschlands. Charakteristik und Bibliografie der Rechtsprechungs- und Konsiliensammlungen vom 16. bis zum Beginn des 19. Jahrhunderts, Frankfurt am Main, 1974. 158  Jürgen Weitzel, Damian Ferdinand Haas (1723–1805) – ein Wetzlarer Prokuratorenleben, Wetzlar, 1996; Oestmann (ed.), Gemeine Bescheide I, pp. 66–67.

264

P. Oestmann

cedures at the Imperial Aulic Council comprehensively and published various documents taken from court practice.159 Even the collapse of the Old Empire was processed legally by members of the Imperial Chamber Court. One of the later common decrees (Gemeiner Bescheid) placed the downfall of smaller territories after the Principal Decree of the Imperial Deputation of 1803 on a level with a litigant’s death, thereby entailing the equivalent consequences for the legal succession and inheritance or transmission of rights.160 4. Relation between the highest courts and territorial privy councils and parliaments When comparing European countries, the relation between the highest courts and the government and the privy council forms an important aspect for assessing the entire supreme court jurisdiction. This illustrates the autonomy of justice, its functional differentiation from the sovereign’s domain and ultimately the road to the separation of powers. At first appearance, however, the result is curious for the Old Empire, as there was no real competition with other types of supreme jurisdiction held by a parliament or government. This is an interesting finding, because the well-known situation of conflict between fully differentiated courts and countless other public authorities existed often enough within the various German territories themselves. Especially in medium-sized territories, the different jurisdictions were more than once virtually undistinguishable, just as in many other European countries. In Hanover, judiciary offices, manorial courts (Hofgerichte), governments, appellate courts and more coexisted.161 That the same persons had positions in these different institutions exacerbated the overlaps. The Saxon jurist Benedikt Carpzov is a prominent example. He was a professor at the faculty of law at Leipzig university, which provided the courts with legal opinions on a regular basis. This was called Aktenversendung or transmissio actorum, because a court would consult the academic scholars by literally forwarding the Sellert, Prozeßgrundsätze, pp. 55–57. (ed.), Gemeine Bescheide I, pp. 47–49, 798–799. Even after the end of the Empire there remained discussions, e. g. on the payment of retirement pensions, cf. Eric-Oliver Mader, Die letzten ‘Priester der Gerechtigkeit’. Die Aus­ einandersetzung der letzten Generation von Richtern des Reichskammergerichts mit der Auflösung des Heiligen Römischen Reiches Deutscher Nation, Berlin, 2005. 161  Peter Oestmann, Die Gerichte, in: Joachim Rückert (ed.), Niedersächsische Juristen. Ein biographisches Lexikon, Göttingen 2003, pp. XL–XLVI; Eike Alexander von Boetticher, Die Justizorganisation im Königreich Hannover nach 1848 und ihre Ausstrahlungskraft auf die Staaten des Deutschen Bundes und das Reich bis 1879, Hannover, 2015, pp. 65–72. 159  Cf.

160  Oestmann



The highest courts of the Holy Roman Empire265

case file. Additionally Carpzov was a member of the Leipzig panel of lay judges, a judge at the Upper Court (Oberhofgericht), counsel at the appellate court, and at times even privy councillor in Dresden. He mostly pursued several of these activities at the same time.162 It was not only difficult to tell the highest territorial authorities apart, but their personnel were often identical as well. To handle the situation typologically, the literature differentiates between aulic courts of a younger and older type, whereby the respective closeness to the sovereign and his political counsellors is described.163 This lack of differentiation was not seen at the level of the Empire. The Imperial Chamber Court was geographically separated from the emperor and was, whether politically or legally, subject neither to the emperor nor to any territorial sovereign.164 Even at the time when the bishop of Speyer held the office of a judge at the Imperial Chamber Court, the court remained strictly separated from the episcopal government. Regarding the Imperial Aulic Council, research has too often overlooked the overlap with imperial governance generally (beyond judicial functions). It is part of the research consensus today to consider the Imperial Aulic Council as a second imperial court.165 Emperor Ferdinand I acknowledged the Imperial Aulic Council ­(Reichshofrat) as an imperial institution and court, especially through the 1559 Ordinance of the Aulic Council,166 which visibly strengthened it, and separated it from the Privy Council (Geheimer Rat), though the membership of the different bodies might still overlap. After 1559, the Privy Council increased in its powers and political weight. Thus, the Imperial Aulic Council was not a pure court and was not only competent purely for legal matters. This was not a source of political conflicts or interference by the governmental bodies, however, which emphasizes the finding already set out above: owing to the functional differentiation between government and judiciary, the Old Empire was surprisingly well advanced on the way to the so called formal rule of law (Rechtsstaat). 162  Gerd Kleinheyer/Jan Schröder (eds.), Deutsche und Europäische Juristen aus neun Jahrhunderten, 5th ed., Heidelberg, 2008, pp. 90–95; Günter Jerouschek/Wolfgang Schild/Walter Gropp (eds.), Benedict Carpzov. Neue Perspektiven zu einem umstrittenen sächsischen Juristen, Tübingen, 2000. 163  Peter Oestmann, Hofgerichte, in: Handwörterbuch zur deutschen Rechtsgeschichte, 2nd ed., vol. 2, 2012, cols. 1087–1091; idem, Wege zur Rechtsgeschichte, pp. 138–139; Lück, Gerichtsverfassung, pp. 110–142. 164  Diestelkamp, Reichskammergericht im Rechtsleben, pp. 237–239; Wolfgang Sellert, Richterliche Unabhängigkeit am Reichskammergericht und am Reichshofrat, in: Okko Behrends/Ralf Dreier (eds.), Gerechtigkeit und Geschichte. Festschrift für Malte Diesselhorst zum 65. Geburtstag, Göttingen, 1995, pp. 118–132. 165  Moraw, Reichshofrat, col. 630. 166  Sellert (ed.), Ordnungen I, pp. 22–36.

266

P. Oestmann

Only a few further points need to be made in this context. As previously mentioned, the Imperial Aulic Council tried in some cases to directly instruct the Imperial Chamber Court on how to handle legal disputes. Specifically, the writs of promotion (promotoriales) because of alleged delay of justice caused controversy repeatedly. The empire’s laws prohibited such measures in the imperial electoral capitulations, but they occurred at various times nonetheless. Still, the Imperial Aulic Council was not really politically or legally superior. Such cases involving the Imperial Aulic Council attempting to directly instruct the Imperial Chamber Court were also exceptionally rare and always strongly contested. At the Imperial Aulic Council, there was a practice of Vota ad Imperatorem.167 Following the 1654 Ordinance of the Imperial Aulic Council, the Council should submit cases to the emperor when both referee-councillors, who had to prepare the case (Referenten), were in disagreement, or when there was disagreement among the judges.168 These cases were relatively common. In such cases the president of the Imperial Aulic Council ordered submission of the case to the emperor. The three secular prince-electors of Brandenburg, Palatine and Saxony lamented this practice already in 1590 and called it a personal intrusion of the emperor into the administration of imperial justice.169 The eighteenth-century literature heatedly discussed the Vota ad Imperatorem, and numerous imperial estates and the legal scholars of their geographical area bluntly spoke about an abuse of authority. The Votum ad Imperatorem also touched on the well-known issue of cabinet justice (Kabinettsjustiz).170 Personal rulings (dicta, Machtsprüche) by sovereigns who put themselves in the place of a supreme court are familiar from the imperial territories. Best known is the intervention of Prussian king Fre­ derick II in 1779 in the so-called Müller-Arnold case, which gave rise to a serious judicial crisis.171 The electoral capitulation of emperor Charles VI from 1711 contained a compromise concerning the Votum ad Imperatorem. The emperor gave assurances that he would only personally decide cases at the Imperial Aulic Council if its president, the vice chancellor of the empire and a protestant and a catholic referee each were present. The facts have been investigated only in 167  Sellert,

Prozeßgrundsätze, pp. 346–353. 1654, pt 5, §§ 18–21, in: Sellert (ed.), Ordnungen II,

168  Reichshofratsordnung

pp. 200–209. 169  Sellert, Prozeßgrundsätze, p. 348. 170  Holger Erwin, Machtsprüche. Das herrscherliche Gestaltungsrecht ‘ex plenitudine potestatis’ in der Frühen Neuzeit, Cologne/Weimar/Vienna, 2009, pp. 199–201. 171  Case study by Tilman Regpen, Der Müller Arnold und die Unabhängigkeit des Richters im friderizianischen Preußen, in: Ulrich Falk/Michele Luminati/Mathias Schmoeckel (eds.), Fälle aus der Rechtsgeschichte, Munich, 2008, pp. 223–253.



The highest courts of the Holy Roman Empire267

outline, but Sellert is certain that Charles VI and his successors did not pay attention to this limitation of Machtsprüche. The reinstated electoral capitulation for emperor Francis I repeated the commitment of 1711, but, apparently, did not influence practice either.172 The problem remained insoluble. On the one hand, many imperial estates expected the Imperial Aulic Council to be able to work undisturbed. On the other hand, the emperor was unwilling to formally give up his ultimate discretionary competence. Thus, the Imperial Aulic Council’s ambiguous position between being an institution of the empire, an imperial court and a governmental institution of the emperor remained in existence until the end of the Old Empire. Another conflict led to heated discussions in contemporary literature: the so-called recursus ad comitia. Contemporaries understood it as one form of an extraordinary legal remedy against judgments of the Imperial Chamber Court and of the Imperial Aulic Council.173 Especially in matters of political or religious importance, the estates repeatedly called upon the Imperial Diet for help. The Diet was meant to annul the imperial courts’ decisions and form its own judgment. At all times, it was disputed whether it should be considered a superior level of jurisdiction to the imperial courts. Eighteenth century contemporaries claimed that France, England and the Netherlands had ways to file extraordinary legal actions against undesirable judgments by their highest courts. De facto, such special appeals or revisions of the Imperial Diet increased drastically from the mid-seventeenth century.174 Often, the estates opposed each other in two blocks, the Corpus Evangelicorum on the one side, the Corpus Catholicorum on the other. However, the Protestant and Catholic territories represented in the Imperial Diet always allied when it was necessary to defend their respective religious constituencies from suffering disadvantages in cases which would set a precedent. Especially when the imperial courts had taken cognizance of affairs of the Protestant church in a judgment, thereby undermining the largely independent jurisdiction of the Protestant consistories, the protestant estates brought such cases before the 172  Electorial capitulation 1711, Art. 16, capitulation 1745, Art. 16, § 15, in: Burgdorf (ed.), Wahlkapitulationen, pp. 342–345, 514; Sellert, Prozeßgrundsätze, pp. 351– 352. 173  Gernot Sydow, Recursus ad Comitia. Ein Beitrag zur Justizverfassung des Heiligen Römischen Reiches im 18. Jahrhundert, in: Rechtsgeschichte, Rg. 2, 2003, pp. 104–122; Sellert, Prozeßgrundsätze, pp. 398–412; idem, Recursus ad comitia, in: Handwörterbuch zur deutschen Rechtsgeschichte, 1st ed., vol. 4, Berlin, 1990, cols. 446–449. 174  Much more cautious on this issue Karl Härter, Der Rekurs des Fürsten Friedrich Karl von Wied-Neuwied. Zum Verhältnis von Reichskammergericht und Reichstag am Ende des Alten Reiches, in: Heinz Mohnhaupt/Dieter Simon (eds.), Vorträge zur Justizforschung. Geschichte und Theorie II, Frankfurt am Main, 1993, pp. 245– 284 at 263–264.

268

P. Oestmann

Imperial Diet.175 Several spectacular cases of the eighteenth century thus became known throughout the empire, supported by the dissemination of contemporary leaflets or essays published in print. The case about the Wetzlar minister Egidius Günter Hellmund caused just such a stir,176 as did long-term legal disputes about a so-called Kapellenhof (an ecclesiastical farmstead) in the bishopric of Hildesheim, which was claimed by Protestant and Catholic proprietors alike.177 In spite of the great publicity these cases gave rise to, the Imperial Diet was never viewed as a court, let alone a higher instance court. It was only in the Old Empire’s final days that the electoral capitulations of Leopold II and Francis II stated that legal regulation of the Recursus ad Comitia was essential.178 However, a reform was not finalized by the time the Old Empire came to an end. As mentioned above, it is difficult to say whether the Imperial Chamber Court and the Imperial Aulic Council were central courts. Four issues must be investigated: Firstly, their jurisdiction, secondly, the exemptions from jurisdiction, thirdly, the privileges and, at last, the cases of denial of justice. (1) The Imperial Chamber Court and the Imperial Aulic Council had identical competences for deciding legal cases. Therefore, when speaking about problems in civil procedure at either one of the courts, the same observations would be true of the other one as well. Not only were the two highest courts responsible for compliance with the perpetual peace of 1495 (Ewiger Landfriede), but they were also the empire’s highest appellate courts. In principle, every inhabitant of the empire who lost a case at a territorial court had the possibility to appeal to the courts of the empire against the judgment of the highest territorial court in question. Therefore, the Imperial Chamber Court and Imperial Aulic Council were both the highest instances in civil cases, sharing the highest tier of jurisdiction within the empire.179 For that reason, the territories could not become technically sovereign from a judicial perspective, because the jurisdiction of the territorial courts was limited.180 And, 175  For some examples cf. Oestmann, Geistliche und weltliche Gerichte, pp. 266– 267, 460–461; idem, Gemeine Bescheide I, pp. 712–714, 737–739. 176  Oestmann, Geistliche und weltliche Gerichte, pp. 512–514, 519–522. 177  Oestmann, Niedersächsisches Bauernrecht. 178  Electorial capitulation 1790, Art. 17, § 3 and capitulation 1792, Art. 17, § 3, in: Burgdorf, Wahlkapitulationen, pp. 704, 794. 179  Normative background in Wolfgang Sellert, Prozessrechtiche Aspekte zur Appellation an den Reichshofrat, in: Auer/Ortlieb (eds.), Appellation, pp. 103–119; and practice analyzed by Ellen Franke, Bene appellatum et male iudicatum. Appellationen an den Reichshofrat in der Mitte des 17. Jahrhunderts an Beispielen aus dem Niederrheinisch-Westfälischen Reichskreis; ibid., pp. 121–145 (both with English summaries). 180  Oestmann, Wege zur Rechtsgeschichte, p. 163.



The highest courts of the Holy Roman Empire269

of course, jurisdiction was the most important expression of rulership in early modern times. But territories also found ways to elude the jurisdiction of the empire. (2) The first ruler to exempt his territories from the jurisdiction of the Imperial Chamber Court and Imperial Aulic Council was Emperor Maximilian I himself. Thus, all of the Austrian territories and some other Habsburg lands were no longer under the jurisdiction of the highest courts of the empire, which had no say at all in these provinces from this point onwards.181 In fact, the same problem arose in Switzerland. The Swiss cantons never recognized the Imperial Chamber Court or the Imperial Aulic Council, and this became their first step towards independence from the empire. The peace of Westphalia in 1648 did not declare Switzerland to be a sovereign state, but did confirm its exemption from all imperial power and the imperial courts.182 In the mid-sixteenth century, the same happened with the Baltic territories. Exemption from the authority of a central court could be a good test of territorial frontiers and borders in early modern times.183 It could be a helpful approach in a broader European comparative project as well. (3) Other territories had no possibility to be exempted. Instead, they found another way to reduce the Imperial Courts’ influence: the privilegia de non appellando. These privilegia de non appellando could be interpreted as a law of the empire, most often granted by the Imperial Aulic Court or as a treaty between a territorial sovereign and the emperor.184 Usually, every territorial sovereign of at least some importance acquired this privilege.185 A territory which succeeded in acquiring an unlimited privilege took a big step to becoming a real state with independent state authority. In such instances, the highest courts of the territory were mostly no longer subordinate to the impe181  Ludolf Pelizaeus, Des Kaisers, aber nicht der Kaiserlichen Kammergericht. Zuständigkeiten in den Vorlanden in der ersten Hälfte des 16. Jahrhunderts, in: Amend/Baumann/Wendehorst/Westphal (eds.), Gerichtslandschaft, pp. 109–126; Jürgen Weitzel, Minderungen der territorialen Präsenz des Reichskammergerichts. Exemtionen, Appellationsprivilegien und vergleichbare Erscheinungen, in: Battenberg/ Schildt, Reichskammergericht, pp. 317–330; Wilhelm Brauneder, Erblande, in: Handwörterbuch zur deutschen Rechtsgeschichte, 2nd ed., vol. 1, Berlin, 2008, cols. 1367– 1368. 182  Johannes Burkhardt, Die Schweizer Staatsbildung im europäischen Vergleich, in: Günter Lottes (ed.), Region. Nation. Europa. Historische Determinanten der Neugliederung eines Kontinents, Heidelberg/Regensburg, 1992, pp. 271–286; Willoweit, Verfassungsgeschichte, § 21, fn. 13, p. 166. 183  Oestmann, Prozesse aus Hansestädten, pp. 114–118. 184  On the discussion about the legal character of the privileges cf. Heinz Mohnhaupt, Historische Vergleichung im Bereich von Staat und Recht. Gesammelte Aufsätze, Frankfurt am Main, 2000, pp. 276, 305–307, 383–385, 395–398. 185  An exception was the bishopric of Münster.

270

P. Oestmann

rial courts. The most important German territories, ruled by the prince electors, all gained such unlimited privileges.186 However, there was a quid pro quo for the territories which acquired privileges. Even if the privilege was limited, all of them were obliged to erect a court of appeal in their territory. This territorial appellate court had to follow the Imperial Chamber Court’s procedural principles and procedural maxims. Hence, whilst on the one hand the privileges weakened the power of the imperial courts, on the other, they harmonized the organization of the German court system. It is interesting that the highest territorial appellate courts established in this period still exist today. They are now called ‘Oberlandesgerichte’, and have a tradition going back 250 or even 350 years.187 Thus, the newly founded territorial courts survived the imperial courts, which perished in 1806. In this sense, the early modern privileges have met with enduring success even to the present day. (4) Another connected point is also important: a privilege did not mean that the territories had no contact with the imperial courts at all. These privileges only reduced the number of appeals. It was central for the early modern concept of sovereignty that all judicial power had derived from the emperor’s or respectively the prince’s will. So until the end of the Old Empire, there was one remaining competence of the imperial courts which could not be encroached on or reduced: the competence to decide in cases where a territorial ruler denied or delayed justice.188 It was the last residue of the medieval concept of the king as a judge. When a territorial sovereign was unwilling to grant justice to his subjects, all subjects could complain at the imperial courts about the territorial sovereign’s tardiness or his use of proscribed procedural practice. In these cases, the sovereign lost his jurisdiction and the imperial courts could decide any case brought before them, including those between mere subjects within the territory, and without a formal appeal by the parties. In this last point, the Imperial Chamber Court and the Imperial Aulic Council really were the empire’s central courts and represented the emperor’s authority. The doctrine of iustitia denegata was based on late medieval law. So in this way the emperor and both imperial courts could force 186  Eisenhardt,

Rechtswirkungen. Jessen, Der Einfluß von Reichshofrat und Reichskammergericht auf die Entstehung und Entwicklung des Oberappellationsgerichts Celle, Aalen, 1986; Stefan Andreas Stodolkowitz, Das Oberappellationsgericht Celle und seine Rechtsprechung im 18. Jahrhundert, Cologne/Weimar/Vienna, 2011; Heiner Lück, Appellationsprivilegien als Gestaltungsfaktoren der Gerichtsverfassung im Alten Reich, in: Auer/Ortlieb (eds.), Appellation, pp. 53–66 (with English summary). 188  Oestmann, Rechtsverweigerung. See also Stefan Andreas Stodolkowitz, Rechtsverweigerung und Territorialjustiz. Verfahren wegen iustitia denegata vel protracta am Oberappellationsgericht Celle, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 131, 2014, pp. 128–181. 187  Peter



The highest courts of the Holy Roman Empire271

the territories to follow the principles of the learned law. If they breached these rules, they would lose a part of their power. This point is important for the interpretation of early modern German constitutional law. The territories had no possibility to become sovereign in the sense later used by Bodin, because they were not able to detach themselves from the imperial courts in cases of denial of justice. In these – for a symbolic understanding, extremely crucial – cases, both imperial courts stayed as the most important and highest courts of the empire until the end in 1806. Conclusions By the geographic extent of their jurisdictional ambits and the number of subjects living within them, the Imperial Chamber Court and Imperial Aulic Council were arguably the most important secular courts in early modern Europe. Despite their almost congruent jurisdiction, there was no real competition between the two institutions. The legal procedure and the political connection to the emperor were too different for this to materialise. The Imperial Chamber Court was created for the execution of the perpetual peace of 1495 and to promote the participation of the estates in imperial governance. Both political aspects faded quite quickly. At the height of its influence and authority around 1590, the Imperial Chamber Court was – especially in civil matters – the highest judicial authority in the Old Empire. The legal literature focusing on the highest courts, written by authors like Joachim Mynsinger and Andreas Gail,189 attracted Europe-wide attention and influenced German legal practice strongly.190 The organisation and the procedural law of the Imperial Chamber Court built undoubtedly the most important model for numerous territorial reforms of the judiciary in the sixteenth century. Even the often mentioned privileges against appeal did not simply serve to weaken the imperial judiciary. Indirect imperial influence continued. When the territories established simultaneously their own high courts, their procedural practices were mainly in accordance with the Imperial Chamber Court again. For state building in the territories, but also for the stabilisation of the Old Empire, the Imperial Chamber Court had an important role to play. The 189  Schumann, Mynsinger; Karl von Kempis, Andreas Gaill (1526–1587). Zum Leben und Werk eines Juristen in der frühen Neuzeit, Frankfurt am Main, 1988; Anja Amend, Gail, Andreas (1526–1587), in: Handwörterbuch zur deutschen Rechtsgeschichte, 2nd ed., vol. 1, Berlin, 2008, cols. 1913–1914. 190  Peter Oestmann, Andreas Gail, Observationes, in: S. Dauchy/G. Martyn/ A. Musson/H. Pihlajamäki/A. Wijffels (eds.), The Formation and Transmission of Western Legal Culture: 150 Books that Made the Law in the Age of Printing, Cham: Springer, 2016, pp. 129–132.

272

P. Oestmann

centralisation of the Old Empire had of course never been planned or been possible. The imperial courts could consequently not strengthen the emperor’s power unilaterally, even less the Imperial Chamber Court, being under influence of the estates. However, their jurisdictions could prevent the individual territories within the empire from becoming sovereign before 1806. From 1600 onwards, the Imperial Aulic Council’s political authority became more respected, although it was not fully differentiated and not strictly independent of the emperor. For the possibility of it mediating in legal disputes, this was surely an advantage. But in legal discussion, most jurists focused more on the Imperial Chamber Court with its juristic literature and its ordinance. One reason why the juridification of social conflicts succeeded in Germany in the sixteenth century was because of the imperial courts. Private feuds decreased and disappeared, mainly from around 1530 onwards. The imperial courts did not decide most cases with a formal final decision though; and even when they did, they often could not enforce them. Therefore private mediation and amicable settlement retained a strong attraction. For the tradition of German courts, the Imperial Chamber Court played a much bigger role than the Imperial Aulic Council. There are several reasons. Since the Imperial Chamber Court was a court, it was also an important place for the education of upcoming lawyers. Many of them went to Speyer and Wetzlar to gain some practical training after finishing their studies at university. They matriculated at the Imperial Chamber Court and became members of the court for some months or perhaps even a whole year. This practical training was quite unusual at the Imperial Aulic Council. Additionally, there was much more literature focusing on the Chamber Court. The assessors, and sometimes the procurators, wrote many books concerning civil procedure, either on the stilus curiae of the Chamber Court or else civil litigation in general; many of them published their own interpretations, reasonings, observations and other essays on the basis of actual cases. The literature of the Imperial Chamber Court had major implications for the development of the practical law books of the German Usus modernus pandectarum. Many well-known authors like Gail, Mynsinger, Ludolff or Cramer191 were assessors of the Court. At the Imperial Aulic Council the production of legal literature started much later. The number of books, edited sources and other papers was small. Even if the Imperial Chamber Court was weaker in the political sense, it therefore seems that from a juristic perspective it had a more highly developed academic culture. 191  For the life and work of Ludolff and Cramer cf. Jahns, Reichskammergericht, pt 2, vol. 1, pp. 371–388, 655–673.



The highest courts of the Holy Roman Empire273

Perhaps, the following observation forms an important German contribution to this volume: the Imperial Aulic Council was closely connected to the emperor and therefore politically very influential. However, jurists of all periods have shown more interest in the Imperial Chamber Court, which was not only geographically far away from the emperor, but also independent of the ruler and strictly bound to the Roman-canon civil procedural law. The fact that the Reichskammergericht was free of political influence from the emperor created a much more legally influential body which embodied a firmer separation of judicial authority from executive authority than had existed in the Holy Roman Empire before the early modern period. Bibliography Amend, A., ‘Gail, Andreas (1526–1587)’, in: Cordes, A./Lück, H./Werkmüller, D./ Schmidt-Wiegand, R., Handwörterbuch zur deutschen Rechtsgeschichte (HRG), Vol. 1, 2nd ed., Berlin, 2008, col. 1913 ff. Amend-Traut, A., Wechselverbindlichkeiten vor dem Reichskammergericht. Praktiziertes Zivilrecht in der Frühen Neuzeit, Cologne/Weimar/Vienna, 2009. Amend-Traut, A., ‘Kammerzieler’, in: Erler, A./Kaufmann, E. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte (HRG), Vol. 2, 2nd ed., Berlin, 2012, cols. 1567– 1569. Amend-Traut, A., ‘Wie Prozesse enden können – alternative Formen der Beendigung reichskammergerichtlicher Zivilverfahren im 17. und 18. Jahrhundert’, in: Cordes, A. (ed.), Mit Freundschaft oder mit Recht? Inner- und außergerichtliche Alternativen zur kontroversen Streitentscheidung im 15.–19. Jahrhundert, Cologne/ Weimar/Vienna, 2015, 233–260. Appelt, H. (ed.), Die Urkunden der deutschen Könige und Kaiser X/2: Die Urkunden Friedrichs I., 1158–1167, Hannover, 1979. Auer, L./Ortlieb, E. (eds.), Appellation und Revision im Europa des Spätmittelalters und der Frühen Neuzeit, Vienna, 2013. Battenberg, F., ‘Reichshofgericht’, in: Erler, A./Kaufmann, E. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte (HRG), Vol. 4, Berlin, 1990, cols 615–626. Battenberg, F., ‘Königliche Kammergerichtsbarkeit im späteren 15. Jahrhundert’, in: Lieberwirth, R./Lück, H. (eds.), Akten des 36. Deutschen Rechtshistorikertages, Baden-Baden, 2008, 525–543. Battenberg, F./Diestelkamp, B. (eds.), Die Protokoll- und Urteilsbücher des König­ lichen Kammergerichts aus den Jahren 1465 bis 1480. Mit Vaganten und Ergänzungen, Cologne/Weimar/Vienna, 2004. Baumann, A./Amend, A./Wendehorst, S., ‘Einleitung’, in: Amend, A./Baumann, A./ Wendehorst, S./Westphal, S. (eds.), Gerichtslandschaft Altes Reich. Höchste Gerichtsbarkeit und territoriale Rechtsprechung, Cologne/Weimar/Vienna, 2007, 1–5.

274

P. Oestmann

Becker, H.-J., ‘Die Sacra Rota Romana in der frühen Neuzeit’, in: Auer, L./Ogris, W./ Ortlieb, E. (eds.), Höchstgerichte in Europa. Bausteine frühneuzeitlicher Rechtsordnungen, Cologne/Weimar/Vienna, 2007, 1–18. Brauneder, W., ‘Erblande’, in: Cordes, A./Lück, H./Werkmüller, D./Schmidt-Wiegand, R., Handwörterbuch zur deutschen Rechtsgeschichte HRG, Vol. 1, 2nd edn., Berlin, 2008, cols. 1367–68. Burgdorf, W. (ed.), Die Wahlkapitulationen der römisch-deutschen Könige und Kaiser, 1519–1792, Göttingen, 2015. Burkhardt, J., ‘Die Schweizer Staatsbildung im europäischen Vergleich’, in: Lottes, G. (ed.), Region. Nation. Europa. Historische Determinanten der Neugliederung eines Kontinents, Heidelberg/Regensburg, 1992, 271–286. Buschmann, A. (ed.), Kaiser und Reich. Verfassungsgeschichte des Heiligen Römischen Reiches Deutscher Nation vom Beginn des 12. Jahrhunderts bis zum Jahre 1806 in Dokumenten. Teil II: Vom Westfälischen Frieden 1648 bis zum Ende des Reiches im Jahre 1806, 2nd ed., Baden-Baden, 1994. Carius, H., Recht durch Eigentum. Frauen vor dem Jenaer Hofgericht, 1648–1806, Munich, 2012. Colorni, V., Die drei verschollenen Gesetze des Reichstages bei Roncaglia, Aalen, 1969. Czeguhn, I./Sánchez Aranda, A., ‘Spain and Portugal until the 18th Century’, in: Wijf­fels, A./Van Rhee, C. H. (eds.), European Supreme Courts. A Portrait through History, London, 2013, 142–149. Denzler, A., Über den Schriftalltag im 18. Jahrhundert. Die Visitation des Reichskammergerichts von 1767 bis 1776, Cologne/Weimar/Vienna, 2016. Dick, B., Die Entwicklung des Kameralprozesses nach den Ordnungen von 1495 bis 1555, Cologne/Vienna, 1981. Diestelkamp, B. (ed.), Urkundenregesten zur Tätigkeit des deutschen Königs- und Hofgerichts bis 1451, Cologne/Weimar/Vienna, 1986–2014. Diestelkamp, B., Reichskammergericht und Rechtsstaatsgedanke. Die Kameraljudikatur gegen die Kabinettsjustiz, Heidelberg, 1994. Diestelkamp, B., Die Durchsetzung des Rechtsmittels der Appellation im weltlichen Prozeßrecht Deutschlands, Stuttgart, 1998. Diestelkamp, B., ‘Das Reichskammergericht im Rechtsleben des 16. Jahrhunderts’, in: Diestelkamp, B., Recht und Gericht im Heiligen Römischen Reich, Frankfurt am Main, 1999, 213–262. Diestelkamp, B. (ed.), Das Reichskammergericht. Der Weg zu seiner Gründung und die ersten Jahrzehnte seines Wirkens (1451–1527), Cologne/Weimar/Vienna, 2003. Diestelkamp, B., ‘Zur ausschließlichen Zuständigkeit des Reichshofrats für die Kassation kaiserlicher Privilegien’, in: Auer, L./Ogris, W./Ortlieb, E. (eds.), Höchstgerichte in Europa. Bausteine frühneuzeitlicher Rechtsordnungen, Cologne/Weimar/ Vienna, 2007, 163–176.



The highest courts of the Holy Roman Empire275

Diestelkamp, B., ‘Beobachtungen zur Schriftlichkeit im Kameralprozeß’, in: Oestmann, P. (ed.), Zwischen Formstrenge und Billigkeit. Forschungen zum vormodernen Zivilprozeß, Cologne/Weimar/Vienna, 2009, 105–115. Diestelkamp, B., ‘Rückblick auf das Projekt zur Inventarisierung der Reichskammergerichtsakten’, in: Battenberg, F./Schildt, B. (eds.), Das Reichskammergericht im Spiegel seiner Prozessakten. Bilanz und Perspektiven der Forschung, Cologne/ Weimar/Vienna, 2010, 3–9. Diestelkamp, B., Vom einstufigen Gericht zur obersten Rechtsmittelinstanz. Die deutsche Königsgerichtsbarkeit und die Verdichtung der Reichsverfassung im Spätmittelalter, Cologne/Weimar/Vienna, 2014. Döhring, E., Geschichte der deutschen Rechtspflege seit 1500, Berlin, 1953. Dorfner, Th., Mittler zwischen Haupt und Gliedern. Die Reichshofratsagenten und ihre Rolle im Verfahren (1658–1740), Münster, 2015. Dotzauer, W., Die deutschen Reichskreise in der Verfassung des Alten Reiches und ihr Eigenleben (1500–1806), Darmstadt, 1989. Dotzauer, W., Die deutschen Reichskreise (1383–1806): Geschichte und Aktenedi­ tion, Stuttgart, 1998. Ehrenpreis, S., Kaiserliche Gerichtsbarkeit und Konfessionskonflikt. Der Reichshofrat unter Rudolf II., 1576–1612, Göttingen, 2006. Eisenhardt, U., Die weltliche Gerichtsbarkeit der Offizialate in Köln, Bonn und Werl im 18. Jahrhundert, Cologne/Opladen, 1966. Eisenhardt, U., ‘Die Rechtswirkungen der in der goldenen Bulle genannten privilegia de non evocando et appellando’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, Vol. 86, 1969, 75–96. Eisenhardt, U., ‘Zur Zivilgerichtsbarkeit der Offizialate im kurkölnischen Westfalen in der zweiten Hälfte des 18. Jahrhunderts’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, Vol. 56, 1970, 406–411. Eisenhardt, U., Die kaiserlichen privilegia de non appellando, Cologne/Vienna, 1980. Erwin, H., Machtsprüche. Das herrscherliche Gestaltungsrecht “ex plenitudine potestatis” in der Frühen Neuzeit, Cologne/Weimar/Vienna, 2009. Fischer, M. G., Reichsreform und “Ewiger Landfriede” – Über die Entwicklung des Fehderechts im 15. Jahrhundert bis zum absoluten Fehdeverbot von 1495, Aalen, 2007. Franke, E., ‘Bene appellatum et male iudicatum. Appellationen an den Reichshofrat in der Mitte des 17. Jahrhunderts an Beispielen aus dem Niederrheinisch-Westfälischen Reichskreis’, in: Auer, L./Ortlieb, E. (eds.), Appellation und Revision im Europa des Spätmittelalters und der Frühen Neuzeit, Vienna, 2013, 121–145. Fuchs, R.-P., ‘Mit Wissen und Willen der Obrigkeit. Reichsrepräsentation über die Reichskammergerichtsboten in der Mitte des 16. Jahrhunderts’, in: Baumann, A./ Oestmann, P./Wendehorst, S./Westphal, S. (eds.), Reichspersonal. Funktionsträger für Kaiser und Reich, Cologne/Weimar/Vienna, 2003, 247–264.

276

P. Oestmann

Gabel, H., ‘Daß ihr künftig von aller Widersetzlichkeit, Aufruhr und Zusammenrottung gänzlich abstehet. Deutsche Untertanen und das Reichskammergericht’, in: Scheurmann, I. (ed.), Frieden durch Recht. Das Reichskammergericht von 1495 bis 1806, Mainz, 1994, 273–280. Gehrke, H., Die privatrechtliche Entscheidungsliteratur Deutschlands. Charakteristik und Bibliografie der Rechtsprechungs- und Konsiliensammlungen vom 16. bis zum Beginn des 19. Jahrhunderts, Frankfurt am Main, 1974. Götte, H. M., Der jüngste Reichsabschied und die Reform des Reichskammergerichts, PhD thesis, Munich, 1998. Härter, K., ‘Der Rekurs des Fürsten Friedrich Karl von Wied-Neuwied. Zum Verhältnis von Reichskammergericht und Reichstag am Ende des Alten Reiches’, in: Mohnhaupt, H./Simon, D. (eds.), Vorträge zur Justizforschung. Geschichte und Theorie, Vol. II, Frankfurt am Main, 1993, 245–284. Härter, K., ‘Das Reichskammergericht als “Reichspoliceygericht”’, in: Battenberg, F./ Ranieri, F. (eds.), Geschichte der Zentraljustiz in Mitteleuropa. Festschrift für Bernhard Diestelkamp zum 65. Geburtstag. Weimar/Cologne/Vienna, 1994, 237– 252. Hartmann, P. C. (ed.), Regionen in der frühen Neuzeit. Reichskreise im deutschen Raum, Provinzen in Frankreich, Regionen unter polnischer Oberhoheit: ein Vergleich ihrer Strukturen, Funktionen und ihrer Bedeutung, Berlin, 1994. Hausmann, J. (ed.), Abt. 1: Reichskammergericht. Teil 3: Prozeßakten des preußischen Kreises und der Stadt Wetzlar, Wiesbaden, 1984–1986. Hausmann, J., Fern vom Kaiser. Städte und Stätten des Reichskammergerichts, Co­ logne/Weimar/Vienna, 1995. Hausmann, J., ‘Die Verzeichnung von Reichskammergerichts-Akten. Ein Erfahrungsbericht’, in: Sellert, W. (ed.), Reichshofrat und Reichskammergericht. Ein Konkurrenzverhältnis, Cologne/Weimar/Vienna, 1999, 241–251. Hermann, E., Die Hexen von Baden-Baden, Karlsruhe, 1890. Herzog, R., Reichskammergericht und Bundesverfassungsgericht, Wetzlar, 1989. Hörner, M., ‘Anmerkungen zur statistischen Erschließung von Reichskammer­ gerichtsprozessen’, in: Baumann, A./Westphal, S./Wendehorst, S./Ehrenpreis, S. (eds.), Prozeßakten als Quelle. Neue Ansätze zur Erforschung der Höchsten Gerichtsbarkeit im Alten Reich, Cologne/Weimar/Vienna, 2001, 69–81. Hufeld, U. (ed.), Der Reichsdeputationshauptschluss von 1803, Cologne/Weimar/­ Vienna, 2003. Hugo, L., Vom Missbrauch der Appellation, Vienna/Cologne/Weimar, 2012. Hüllbüsch, U./Schenk, H., Reichskammergeircht. Bestand AR 1. Prozeßakten, Ko­ blenz, 1994. Isenmann, E., ‘Weshalb wurde die Fehde im römisch-deutschen Reich seit 1467 reichgesetzlich verboten? Der Diskurs über Fehde, Friede und Gewaltmonopol im 15. Jahrhundert’, in: Eulenstein, J./Reinle, C./Rothmann, M. (eds.), Fehdeführung



The highest courts of the Holy Roman Empire277 im spätmittelalterlichen Reich. Zwischen adeliger Handlungslogik und territorialer Verdichtung, Affalterbach, 2013, 335–474.

Jahns, S., Das Reichskammergericht und seine Richter. Verfassung und Sozialstruktur eines höchsten Gerichts im Alten Reich, Cologne/Weimar/Vienna, 2003–2011. Jerouschek, G./Schild, W./Gropp, W. (eds.), Benedict Carpzov. Neue Perspektiven zu einem umstrittenen sächsischen Juristen, Tübingen, 2000. Jessen, P., Der Einfluß von Reichshofrat und Reichskammergericht auf die Entstehung und Entwicklung des Oberappellationsgerichts Celle, Aalen, 1986. Jörn, N./Diestelkamp, B./Modéer, K. Å. (eds.), Integration durch Recht. Das Wismarer Tribunal (1653–1806), Cologne/Weimar/Vienna, 2003. Kleinheyer, G./Schröder, J. (eds.), Deutsche und Europäische Juristen aus neun Jahrhunderten, 5th ed., Heidelberg, 2008. Klinger, A., ‘Das Reich und seine “Hauptstädte”’, in: Wendehorst, S./Westphal, S. (eds.), Lesebuch Altes Reich, Bibliothek Altes Reich 1, Munich, 2006, 73–79. Kocher, G., ‘Richter’, in: Erler, A./Kaufmann, E. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte (HRG), Vol. 4, Berlin, 1990, cols. 1033–40. Koser, O., Repertorium der Akten des Reichskammergerichts. Untrennbarer Bestand, Heppenheim, 1933–1936. Kroeschell, K., ‘Justizsachen und Polizeisachen’, in: Kroeschell, K. (ed.), Gerichtslauben-Vorträge. Freiburger Festkolloquium zum 75. Geburtstag von Hans Thieme, Sigmaringen, 1983, 57–72. Lanzinner, M., ‘Gemeiner Pfennig’, in: Erler, A,/Kaufmann, E. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte (HRG), Vol. 2, 2nd ed., Berlin, 2012, cols. 58– 59. Laufs, A. (ed.), Die Reichskammergerichtsordnung von 1555, Cologne/Vienna, 1976. Laufs, A., ‘Reichsreform’, in: Erler, A./Kaufmann, E. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte (HRG), Vol. 4, Berlin, 1990, 732–739. Leesment, L., Über die livländischen Gerichtssachen im Reichskammergericht und im Reichshofrat, Tartu, 1929. Lück, H., Die kursächsische Gerichtsverfassung, 1423–1550, Cologne/Weimar/Vienna, 1997. Lück, H., ‘Appellationsprivilegien als Gestaltungsfaktoren der Gerichtsverfassung im Alten Reich’, in: Auer, L./Ortlieb, E. (eds.), Appellation und Revision im Europa des Spätmittelalters und der Frühen Neuzeit, Vienna, 2013, 53–66. Mader, E.-O., ‘ “Soldateske” des Reichskammergerichts. Das kammergerichtsliche Botenwesen am Ende des Alten Reiches’, in: Baumann, A./Oestmann, P./Wendehorst, S./Westphal, S. (eds.), Reichspersonal. Funktionsträger für Kaiser und Reich, Cologne/Weimar/Vienna, 2003, 265–290. Mader, E.-O., Die letzten “Priester der Gerechtigkeit”. Die Auseinandersetzung der letzten Generation von Richtern des Reichskammergerichts mit der Auflösung des Heiligen Römischen Reiches Deutscher Nation, Berlin, 2005.

278

P. Oestmann

Mencke, K., Die Visitationen am Reichskammergericht im 16. Jahrhundert. Zugleich ein Beitrag zur Entstehungsgeschichte des Rechtsmittels der Revision, Cologne/ Vienna, 1984. Meumann, M./Pröve, R. (eds.), Herrschaft in der Frühen Neuzeit. Umrisse eines dynamisch-kommunikativen Prozesses, Münster, 2004. Meurer, N., ‘Die Entwicklung der Austrägalgerichtsbarkeit bis zur Reichskammergerichtsordnung von 1495’, in: Baumann, A./Oestmann, P./Wendehorst, S./Westphal, S. (eds.), Prozesspraxis im Alten Reich. Annäherungen – Fallstudien – Statistiken, Cologne/Weimar/Vienna, 2005, 17–52. Mohnhaupt, H., Historische Vergleichung im Bereich von Staat und Recht. Gesammelte Aufsätze, Frankfurt am Main, 2000. Mohnhaupt, H., ‘Organisation und Tätigkeit des “Hohen Königlichen Tribunals zu Wismar”’, in: Jörn, N./Diestelkamp, B./Modéer, K. Å. (eds.), Integration durch Recht. Das Wismarer Tribunal (1653–1806), Cologne/Weimar/Vienna, 2003, 215– 237. Moraw, P./‘Reichshofrat’, Erler, A./Kaufmann, E. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte (HRG), Vol. 4, Berlin, 1990, cols. 630–638. Nehlsen-von Stryk, K., ‘Appellation und Nichtigkeitsklage aus der Sicht der frühen Kameralistik’, in: Auer, L./Ortlieb, E. (eds.), Appellation und Revision im Europa des Spätmittelalters und der Frühen Neuzeit, Vienna, 2013, 87–102. Nordloh, Ph., Kölner Zunftprozesse vor dem Reichskammergericht, Frankfurt am Main, 2008. Oestmann, P., Hexenprozesse am Reichskammergericht, Cologne/Weimar/Vienna, 1997. Oestmann, P., Germanisch-deutsche Rechtsaltertümer im Barockzeitalter – eine Fallstudie, Wetzlar, 2000. Oestmann, P., ‘Die Rekonstruktion der reichskammergerichtlichen Rechtsprechung des 16. und 17. Jahrhunderts als methodisches Problem’, in: Baumann, A./Westphal, S./Wendehorst, S./Ehrenpreis, S. (eds.), Prozeßakten als Quelle. Neue Ansätze zur Erforschung der Höchsten Gerichtsbarkeit im Alten Reich, Cologne/Weimar/Vienna, 2001, 15–54. Oestmann, P., Rechtsvielfalt vor Gericht. Rechtsanwendung und Partikularrecht im Alten Reich, Frankfurt am Main, 2002. Oestmann, P., ‘Die Gerichte’, in: Rückert, J. (ed.), Niedersächsische Juristen. Ein biographisches Lexikon, Göttingen, 2003, XL–XLVI. Oestmann, P., ‘Zunftzwang und Handelsfreiheit im frühen 19. Jahrhundert’, Zeitschrift für Neuere Rechtsgeschichte, Vol. 26, 2004, 246–261. Oestmann, P., ‘Kamerliteratur’, Zeitenblicke, Vol. 3(3), 2004, available at http://www. zeitenblicke.de/2004/03/oestmann3/index.html. Oestmann, P., ‘Menschenrechte und ihre Durchsetzung im Alten Reich’, in: Schmidtvon Rhein, G./Cordes, A. (eds.), Altes Reich und neues Recht. Von den Anfängen der bürgerlichen Freiheit, Wetzlar, 2006, 57–74.



The highest courts of the Holy Roman Empire279

Oestmann, P., ‘Extrajudizialappellation’, in: Cordes, A./Lück, H./Werkmüller, D./ Schmidt-Wiegand, R., Handwörterbuch zur deutschen Rechtsgeschichte (HRG), Vol. 1, 2nd ed., Berlin, 2008, cols. 1457–1458 Oestmann, P., Ein Zivilprozeß am Reichskammergericht. Edition einer Gerichtsakte aus dem 18. Jahrhundert, Cologne/Weimar/Vienna, 2009. Oestmann, P., ‘Rechtsverweigerung im Alten Reich’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, Vol. 127, 2010, 51–141. Oestmann, P., ‘Prozesse aus Hansestädten vor dem Königs- und Hofgericht in der Zeit vor 1400’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, Vol. 128, 2011, 114–168. Oestmann, P., Geistliche und weltliche Gerichte im Alten Reich. Zuständigkeitsstreitigkeiten und Instanzenzüge, Cologne/Weimar/Vienna, 2012. Oestmann, P. (ed.), Gemeine Bescheide. Teil 1: Reichskammergericht, 1497–1805, Cologne/Vienna/Weimar, 2013. Oestmann, P., ‘Niedersächsisches Bauernrecht zwischen Kirche und Staat’, in: Jansen, N./Oestmann, P. (eds.), Rechtsgeschichte heute. Religion und Politik in der Geschichte des Rechts. Schlaglichter einer Ringvorlesung, Tübingen, 2014, 165– 180. Oestmann, P., Normengeschichte, Wissenschaftsgeschichte und Praxisgeschichte. Drei Blickwinkel auf das Recht der Vergangenheit, Social Science Research Network: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2526811 [31 October 2014] = Max Planck Institute for European Legal History, Research paper series, 2014–06. Oestmann, P., Wege zur Rechtsgeschichte: Gerichtsbarkeit und Verfahren, Cologne/ Weimar/Vienna, 2015. Oestmann, P., ‘Gemeines Recht und Rechtseinheit. Zum Umgang mit Rechtszersplitterung und Rechtsvielfalt in Mittelalter und Neuzeit’, in: Schumann, E. (ed.), ­Hierarchie, Kooperation und Integration im Europäischen Rechtsraum. 17. Symposion der Kommission ‘Die Funktion des Gesetzes in Geschichte und Gegenwart’, Berlin/Boston, 2015, 1–49. Oestmann, P., ‘Streit um Anwaltskosten in der frühen Neuzeit. Teil 1: Methodische Grundlegung, Anwaltsverträge und Bezahlungsarten’, Zeitschrift der SavignyStiftung für Rechtsgeschichte. Germanistische Abteilung, Vol. 132, 2015, 152– 218. Oestmann, P., ‘Teil 2: Gerichtszuständigkeit und Verfahrensarten’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, Vol. 133, 2016, 191–295. Oestmann, P. (ed.), Gemeine Bescheide. Teil 2: Reichshofrat 1613–1798, Cologne/ Weimar/Vienna, 2016. Oestmann, P., ‘Andreas Gail, Observationes’, in: Dauchy, S./Martyn, G./Musson, A./ Pihlajamäki, H./Wijffels, A. (eds.) The Formation and Transmission of Western Legal Culture: 150 Books that Made the Law in the Age of Printing, Cham, 2016, 129–132.

280

P. Oestmann

Olechowski, Th., ‘Verwaltungsgerichtsbarkeit’, in: Jaeger, F. (ed.), Enzyklopädie der Neuzeit, Vol. 14, Stuttgart, 2011, cols. 266–268. Ortlieb, E., Im Auftrag des Kaisers. Die kaiserlichen Kommissionen des Reichshofrats und die Regelung von Konflikten im Alten Reich (1637–1657), Cologne/ Weimar/Vienna, 2001. Ortlieb, E., ‘Gerichtsakten und Parteiakten. Zur Überlieferung der kaiserlichen Kommissionen des Reichshofrats’, in: Baumann, A./Westphal, S./Wendehorst, S./Ehrenpreis, S. (eds.), Prozeßakten als Quelle. Neue Ansätze zur Erforschung der Höchsten Gerichtsbarkeit im Alten Reich, Cologne/Weimar/Vienna, 2001, 101– 118. Ortlieb, E., ‘Die Formierung des Reichshofrats (1519–1564). Ein Projekt der Kommission für Rechtsgeschichte Österreichs der Österreichischen Akademie der ­Wissenschaften in Zusammenarbeit mit dem Haus-, Hof- und Staatsarchiv’, in: Amend, A./Baumann, A./Wendehorst, S./Westphal, S. (eds.), Gerichtslandschaft Altes Reich. Höchste Gerichtsbarkeit und territoriale Rechtsprechung, Cologne/ Weimar/Vienna, 2007, 17–39. Ortlieb, E., ‘Frankfurt vor dem Reichshofrat’, in: Amend, A./Baumann, A./Wendehorst, S./Wunderlich, S. (eds.), Die Reichsstadt Frankfurt als Recht- und Gerichtslandschaft im Römisch-Deutschen Reich, Munich, 2008, 57–75. Ortlieb, E., ‘Das Prozeßverfahren in der Formierungsphase des Reichshofrats (1519– 1564)’, in: Oestmann, P. (ed.), Zwischen Formstrenge und Billigkeit. Forschungen zum vormodernen Zivilprozeß, Cologne/Weimar/Vienna, 2009, 117–138. Ortlieb, E., ‘The Holy Roman Empire: the Imperial Courts’ System and the Reichshofrat’, in: Wijffels, A./Van Rhee, C. H. (eds.), European Supreme Courts. A Portrait through History, London, 2013, 86–95. Payen, Ph., Les arrêts de règlement du Parlement de Paris au XVIIIè siècle. Dimension et doctrine, Paris, 1997. Payen, Ph., La physiologie de l’arrêt de règlement du Parlement de Paris au ­XVIIIè siècle, Paris, 1999. Pelizaeus, L., ‘Des Kaisers, aber nicht der Kaiserlichen Kammergericht. Zuständigkeiten in den Vorlanden in der ersten Hälfte des 16. Jahrhunderts’, in: Amend, A./ Baumann, A./Wendehorst, S./Westphal, S. (eds.), Gerichtslandschaft Altes Reich. Höchste Gerichtsbarkeit und territoriale Rechtsprechung, Cologne/Weimar/Vienna, 2007, 109–126. Perels, K., ‘Die Justizverweigerung im alten Reiche seit 1495’, Zeitschrift der Savi­ gny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, Vol. 25, 1904, 1–51. Pitz, E., Papstreskript und Kaiserreskript im Mittelalter, Tübingen, 1971. Poetsch, J., Die Reichsacht im Mittelalter und besonders in der neueren Zeit, Breslau, 1911. Porskrog Rasmussen, C./Imberger, E./Lohmeier, D./Momsen, I. (eds.), Die Fürsten des Landes. Herzöge und Grafen von Schleswig, Holstein und Lauenburg, Neumünster, 2008.



The highest courts of the Holy Roman Empire281

Prange, W., Schleswig Holstein und das Reichskammergericht in dessen ersten fünfzig Jahren, Wetzlar, 1998. Pufendorf, S., The Present State of Germany, London, 1696. Pütter, J. S., Beyträge zum Teutschen Staats- und Fürsten-Rechte, Vol. 1, Göttingen, 1777. Ranieri, F., Recht und Gesellschaft im Zeitalter der Rezeption. Eine rechts- und sozialgeschichtliche Analyse der Tätigkeit des Reichskammergerichts im 16. Jahrhundert, Cologne/Vienna, 1985. Rasche, U., ‘Urteil versus Vergleich? Entscheidungspraxis und Konfliktregulierung des Reichshofrats im 17. Jahrhundert im Spiegel neuerer Aktenerschließung’, in: Cordes, A. (ed.), Mit Freundschaft oder mit Recht? Inner- und außergerichtliche Alternativen zur kontroversen Streitentscheidung im 15.–19. Jahrhundert, Co­ logne/Weimar/Vienna, 2015, 199–232. Regpen, T., ‘Der Müller Arnold und die Unabhängigkeit des Richters im friderizianischen Preußen’, in: Falk, U./Luminati, M./Schmoeckel, M. (eds.), Fälle aus der Rechtsgeschichte, Munich, 2008, 223–253. Reinhard, W., Geschichte der Staatsgewalt. Eine vergleichende Verfassungsgeschichte Europas von den Anfängen bis zur Gegenwart, 3rd ed., Munich, 2002. Reininghaus, W., ‘Zünfte vor dem Reichskammergericht. Beispiele aus Westfalen’, in: Amend-Traut, A./Cordes, A./Sellert, W. (eds.), Geld, Handel, Wirtschaft. Höchste Gerichte im Alten Reich als Spruchkörper und Institution, Berlin, 2013, 43–60. Sailer, R., Untertanenprozesse vor dem Reichskammergericht. Rechtsschutz gegen die Obrigkeit in der zweiten Hälfte des 18. Jahrhunderts, Cologne/Weimar/Vienna, 1999. Schäfer, F. L., Juristische Germanistik. Eine Geschichte der Wissenschaft vom einheimischen Privatrecht, Frankfurt am Main, 2008. Scheidemantel, H. G., Repertorium des Teutschen Staats und Lehnrechts, Part 1 (A–E), Leipzig, 1782. Schenk, T., ‘Die Wiener “Reichsarchive” und die Akten des kaiserlichen Reichshofrats als ostwestfälische Geschichtsquellen’, Die Warte, Vol. 151, 2011, 6–10. Schenk, T., ‘Reichsjustiz im Spannungsverhältnis von oberstrichterlichem Amt und österreichischen Hausmachtinteressen: Der Reichshofrat und der Konflikt um die Allodifikation der Lehen in Brandenburg-Preußen (1717–1728)’, in: AmendTraut, A./Cordes, A./Sellert, W. (eds.), Geld, Handel, Wirtschaft. Höchste Gerichte im Alten Reich als Spruchkörper und Institution, Berlin, 2013, 103–219. Schenk, T., ‘Der Reichshofrat als oberster Lehnshof. Dynastie- und adelsgeschicht­ liche Implikationen am Beispiel Brandenburg-Preußens’, in: Baumann, A./Jendorff, A. (eds.), Adel, Recht und Gerichtsbarkeit im frühneuzeitlichen Europa, Munich, 2014, 255–294. Scheurmann, I. (ed.), Frieden durch Recht. Das Reichskammergericht von 1495 bis 1806, Mainz, 1994.

282

P. Oestmann

Schildt, B., Die Entwicklung der Zuständigkeit des Reichskammergerichts, Wetzlar, 2006. Schlinker, S., Litis Contestatio. Eine Untersuchung über die Grundlagen des gelehrten Zivilprozesses in der Zeit vom 12. bis zum 19. Jahrhundert, Frankfurt am Main, 2008. Schlinker, S., ‘Die litis contestatio im Kameralprozess’, in: Oestmann, P. (ed.), Zwischen Formstrenge und Billigkeit. Forschungen zum vormodernen Zivilprozeß, Cologne/Weimar/Vienna, 2009, 139–164. Schmauß, J. J./von Senckenberg, H. C. (eds.), Neue und vollständigere Sammlung der Reichsabschiede, Frankfurt am Main, 1747 (reprint Osnabrück, 1967). Schmidt, G., Geschichte des Alten Reiches. Staat und Nation in der Frühen Neuzeit, 1495–1806, Munich, 1999. Schmidt-von Rhein, G., Das Reichskammergericht in Wetzlar, Wetzlar, 1990. Schnettger, M., ‘Principe sovrano’ oder ‘civitas imperialis’? Die Republik Genua und das Alte Reich in der Frühen Neuzeit (1556–1797), Mainz, 2006. Schnettger, M., ‘Kooperation und Konflikt. Der Reichshofrat und die kaiserliche Plenipotenz in Italien’, in: Amend, A./Baumann, A./Wendehorst, S./Westphal, S. (eds.), Gerichtslandschaft Altes Reich. Höchste Gerichtsbarkeit und territoriale Rechtsprechung, Cologne/Weimar/Vienna, 2007, 127–150. Scholz, J. M., ‘Portugal’, in: Coing, H. (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte. Vol. 2: Neuere Zeit (1500–1800). Das Zeitalter des Gemeinen Rechts. Part 2: Gesetzgebung und Rechtsprechung, Munich, 1976, 1319–1342. Schulze, W., Bäuerlicher Widerstand und feudale Herrschaft in der frühen Neuzeit, Stuttgart/Bad Cannstatt, 1980. Schulze, W., ‘Die veränderte Bedeutung sozialer Konflikte im 16. und 17. Jahrhundert’, in: Schulze, W. (ed.), Europäische Bauernrevolten der Frühen Neuzeit, Frankfurt am Main, 1982. Schumann, S., Joachim Mynsinger von Frundeck (1514–1588). Herzoglicher Kanzler in Wolfenbüttel – Rechtsgelehrter – Humanist. Zur Biographie eines Juristen im 16. Jahrhundert, Wiesbaden, 1983. Seeger, T., Die Extrajudizialappellation, Cologne/Weimar/Vienna, 1992. Sellert, W., Über die Zuständigkeitsabgrenzung von Reichshofrat und Reichskammergericht insbesondere in Strafsachen und Angelegenheiten der freiwilligen Gerichtsbarkeit, Aalen, 1965. Sellert, W., ‘Die Ladung des Beklagten. Eine Auswertung von Kammerbotenberichten’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, Vol. 84, 1967, 202–235. Sellert, W., Prozeßgrundsätze und Stilus Curiae am Reichshofrat im Vergleich mit den gesetzlichen Grundlagen des reichskammergerichtlichen Verfahrens, Aalen, 1973.



The highest courts of the Holy Roman Empire283

Sellert, W. (ed.), Die Ordnungen des Reichshofrates, 1550–1766, Cologne/Vienna, 1980–1990. Sellert, W., ‘Richterliche Unabhängigkeit am Reichskammergericht und am Reichshofrat’, in: Heidenreich, B. (ed.), Recht und Verfassung in Hessen. Vom Reichskammergericht zur Landesverfassung, Wiesbaden, 1995, 39–47. Sellert, W., ‘Vollstreckung und Vollstreckungspraxis am Reichskammergericht und am Reichshofrat’, in: Gerhardt, W./Diederichsen, U./Rimmelspacher, B./Costede, J. (eds.), Festschrift für Wolfram Henckel zum 70. Geburtstag, Berlin/New York, 1995, 817–839. Sellert, W., ‘Richterliche Unabhängigkeit am Reichskammergericht und am Reichshofrat’, in: Behrends, O./Dreier, R. (eds.), Gerechtigkeit und Geschichte. Festschrift für Malte Diesselhorst zum 65. Geburtstag, Göttingen, 1995, 118–132. Sellert, W., ‘Projekt einer Erschließung der Akten des Reichshofrats’, in: Sellert, W. (ed.), Reichshofrat und Reichskammergericht. Ein Konkurrenzverhältnis, Co­ logne/Weimar/Vienna, 1999, 199–210. Sellert, W., ‘Der Reichshofrat: Begriff, Quellen und Erschließung, Forschung, institutionelle Rahmenbedingungen und die wichtigste Literatur’, Zeitenblicke, Vol. 3(3), 2004, 1–16. Sellert, W., ‘Vorwort’, in: Sellert, W. (ed.), Die Akten des Kaiserlichen Reichshofrats. Serie I: Alte Prager Akten. Band 1: A–D, Berlin, 2009, 7–17. Sellert, W., ‘Die Agenten und Prokuratoren am Reichshofrat’, in: Anwälte und ihre Geschichte. Zum 140. Gründungsjahr des Deutschen Anwaltsvereins, Munich, 2011. Sellert, W., ‘Besoldungen und Einkünfte der Richter am Kaiserlichen Reichshofrat’, in: Amend-Traut, A./Cordes, A./Sellert, W. (eds.), Geld, Handel, Wirtschaft. Höchste Gerichte im Alten Reich als Spruchkörper und Institution, Berlin, 2013, 267–294. Sellert, W., ‘Prozessrechtliche Aspekte zur Appellation an den Reichshofrat’, in: Auer, L./Ortlieb, E. (eds.), Appellation und Revision im Europa des Spätmittelalters und der Frühen Neuzeit, Vienna, 2013, 103–119. Senn, M., ‘Der Reichshofrat als oberstes Justizorgan unter Karl V. und Ferdinand I. (1519–1564)’, in: Amend, A./Baumann, A./Wendehorst, S./Westphal, S. (eds.), Gerichtslandschaft Altes Reich. Höchste Gerichtsbarkeit und territoriale Rechtsprechung, Cologne/Weimar/Vienna, 2007, 27–39. Seyler, R./Barth, C. (eds.), Urtheil Und Beschaydt Am Hochlöblichen Kayserlichen Cammergericht, Speyer, 1604–1605. Simon, Th., ‘Geltung. Der Weg von der Gewohnheit zur Positivität des Rechts’, Rg. Rechtsgeschichte, Vol. 7, 2005, 100–137. Smend, R., Das Reichskammergericht. Erster Teil: Geschichte und Verfassung, Weimar, 1911. Stodolkowitz, S. A., Das Oberappellationsgericht Celle und seine Rechtsprechung im 18. Jahrhundert, Cologne/Weimar/Vienna, 2011.

284

P. Oestmann

Stodolkowitz, S. A., ‘Rechtsverweigerung und Territorialjustiz. Verfahren wegen iustitia denegata vel protracta am Oberappellationsgericht Celle’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, Vol. 131, 2014, 128–181. Stollberg-Rilinger, B., Das Heilige Römische Reich Deutscher Nation. Vom Ende des Mittelalters bis 1806, 2nd ed., Munich, 2006. Stollberg-Rilinger, B., Des Kaisers Alte Kleider. Verfassungsgeschichte und Symbolsprache des Alten Reiches, Munich, 2008. Stollberg-Rilinger, B., ‘Die Würde des Gerichts. Spielten symbolische Formen an den Höchsten Reichsgerichten eine Rolle?’, in: Oestmann, P. (ed.), Zwischen Formstrenge und Billigkeit. Forschungen zum vormodernen Zivilprozeß, Cologne/ Weimar/Vienna, 2009, 191–216. Stollberg-Rilinger, B., ‘Verfassungsgeschichte als Kulturgeschichte’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, Vol. 127, 2010, 1–32. Stolleis, M., Geschichte des öffentlichen Rechts in Deutschland. Vol. 1: Reichspublizistik und Policeywissenschaft, 1600–1800, Munich, 1988. Stolleis, M., Geschichte des öffentlichen Rechts in Deutschland. Vol. 4: Staats- und Verwaltungsrechtswissenschaft in West und Ost, 1945–1990, Munich, 2012. Stölzel, A., Die Entwicklung der gelehrten Rechtsprechung. Vol. II: Billigkeits- und Rechtspflege der Rezeptionszeit in Jülich-Berg, Bayern, Sachsen und Brandenburg, Berlin, 1910. Sydow, G., ‘Recursus ad Comitia. Ein Beitrag zur Justizverfassung des Heiligen Römischen Reiches im 18. Jahrhundert’, Rg. Rechtsgeschichte, Vol. 2, 2003, 104– 122. Szidzek, C., Das frühneuzeitliche Verbot der Appellation in Strafsachen. Zum Einfluß von Rezeption und Politik auf die Zuständigkeit insbesondere des Reichskammergerichts, Cologne/Weimar/Vienna, 2002. Troßbach, W., ‘Gar herrlichen … zu lesen bei dem Zasio. Die Einbeziehung von Prozessen bäuerlicher Untertanen gegen ihre Obrigkeit in die Kameralliteratur’, in: Battenberg, F./Schildt, B. (eds.), Das Reichskammergericht im Spiegel seiner Prozessakten. Bilanz und Perspektiven der Forschung, Cologne/Weimar/Vienna, 2010, 63–91. Uhlhorn, M., Der Mandatsprozess sine clausula des Reichshofrats, Cologne/Vienna, 1990. Ullmann, S., Geschichte auf der langen Bank. Die Kommissionen des Reichshofrats unter Kaiser Maximilian II. (1564–1576), Mainz, 2006. von Boetticher, E. A., Die Justizorganisation im Königreich Hannover nach 1848 und ihre Ausstrahlungskraft auf die Staaten des Deutschen Bundes und das Reich bis 1879, Hannover, 2015. von Cramer, J. U., Wetzlarische Nebenstunden, worinnen auserlesene beym Höchstpreißlichen Cammergericht entschiedene Rechts-Händel zur Erweiter- und Erläu-



The highest courts of the Holy Roman Empire285 terung der Deutschen in Gerichten üblichen Rechts-Gelehrsamkeit angewendet werden, Part 76, Ulm, 1768.

von Fahnenberg, E. J. K., Litteratur des Kaiserlichen Reichskammergerichts, Wetzlar, 1792. von Gschließer, O., Der Reichshofrat. Bedeutung und Verfassung, Schicksal und Besetzung einer obersten Reichsbehörde von 1559 bis 1806, Vienna, 1942. von Kempis, K., Andreas Gaill (1526–1587). Zum Leben und Werk eines Juristen in der frühen Neuzeit, Frankfurt am Main, 1988. von Loewenich, M., ‘Amt und Prestige. Die Kammerrichter zwischen Gericht und ständischer Ökonomie’, in: Baumann, A./Jendorff, A. (eds.), Adel, Recht und Gerichtsbarkeit im frühneuzeitlichen Europa, Munich, 2014, 409–429. von Ludolff, G. M., Corpus Juris Cameralis, das ist/des Kayserlichen Cammer-Gerichts Gesetz-Buch, Frankfurt am Main, 1724. von Ludolff, G. M., ‘Collectio quorundam statutorum provinciarum et urbium Germaniae’, in: von Ludolff, G. M. (ed.), Variae observationes forenses, Wetzlar, 1734. von Senkenberg, R. K. Freiherr, Sammlung der den kaiserlichen Reichshofrath betreffenden Ordnungen und Verordnungen wie auch Reichskanzlei-Ordnungen und gemeine Bescheide des Reichshofraths, Gießen, 1800. Weber, M., ‘Die Bedeutung der Reichsacht in der Frühen Neuzeit’, in: Kunisch, J. (ed.), Neue Studien zur frühneuzeitlichen Reichsgeschichte, Berlin, 1997, 55–90. Wegener, C. F., Von der Landeshoheit über das alte Rendsburg auf der Eiderinsel, Copenhagen, 1850. Weinrich, L. (ed.), Quellen zur Reichsreform im Spätmittelalter, Darmstadt, 2001. Weitzel, J., ‘Zur Zuständigkeit des Reichskammergerichts als Appellationsgericht’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, Vol. 90, 1973, 213–245. Weitzel, J., Der Kampf um die Appellation ans Reichskammergericht. Zur politischen Geschichte der Rechtsmittel in Deutschland, Cologne/Vienna, 1976. Weitzel, J., Dinggenossenschaft und Recht. Untersuchungen zum Rechtsverständnis im fränkisch-deutschen Mittelalter, Cologne/Vienna, 1985. Weitzel, J., ‘Das Reichskammergericht und der Schutz von Freiheitsrechten seit der Mitte des 18. Jahrhunderts’, in: Diestelkamp, B. (ed.), Die politische Funktion des Reichskammergerichts, Cologne/Weimar/Vienna, 1993, 157–180. Weitzel, J., Damian Ferdinand Haas (1723–1805) – ein Wetzlarer Prokuratorenleben, Wetzlar, 1996. Weitzel, J., review of: Amend, A./Baumann, A./Wendehorst, S./Westphal, S. (eds.), Gerichtslandschaft Altes Reich. Höchste Gerichtsbarkeit und territoriale Rechtsprechung, Cologne/Weimar/Vienna, 2007, Zeitschrift für Neuere Rechtsgeschichte, Vol. 30, 2008, 297–298. Weitzel, J., ‘Minderungen der territorialen Präsenz des Reichskammergerichts. Exemtionen, Appellationsprivilegien und vergleichbare Erscheinungen’, in: Batten-

286

P. Oestmann

berg, F./Schildt, B. (eds.), Das Reichskammergericht im Spiegel seiner Prozessakten. Bilanz und Perspektiven der Forschung, Cologne/Weimar/Vienna, 2010, 317–330. Westphal, S., ‘Austräge als Mittel der Streitbeilegung im frühneuzeitlichen Adel des Alten Reiches’, in: Cordes, A. (ed.), Mit Freundschaft oder mit Recht? Inner- und außergerichtliche Alternativen zur kontroversen Streitentscheidung im 15.–19. Jahrhundert, Cologne/Weimar/Vienna, 2015, 159–173. Wiegand, W., ‘Zur Herkunft und Ausbreitung der Formel “habere fundatam intentionem” ’, in: Gagnér, S./Schlosser, H./Wiegand, W. (eds.), Festschrift für Hermann Krause, Cologne/Vienna, 1975, 126–170. Wiegand, W., Studien zur Rechtsanwendungslehre der Rezeptionszeit, Ebelsbach, 1977. Willoweit, D., Rechtsgrundlagen der Territorialgewalt. Landesobrigkeit, Herrschaftsrechte und Territorium in der Rechtswissenschaft der Neuzeit, Cologne/Vienna, 1975. Willoweit, D., Deutsche Verfassungsgeschichte. Vom Frankenreich bis zur Wiedervereinigung Deutschlands, 7th ed., Munich, 2013.

D. TAMM

The King in Council and the Supreme Court in Denmark, 1537–1660 1. The king and his court The Danish Supreme Court is one of the oldest, if not the oldest, functioning Supreme Courts in Europe. It was founded in 1661 as part of the new institutions established when absolutism was introduced in Denmark in 1660.1 Before that time sovereignty in the realm was held in division by the King and his Council, which consisted of a number of persons – normally around 15 to 20 – belonging to the highest and most wealthy Danish nobility. The Council dates back to the Middle Ages. After the Lutheran Reformation in Denmark in 1536 the position of the King was considerably strengthened. The collaboration between King and Council was laid down in the charter which the King had to sign when he ascended to the throne. This charter, which in this period was signed by all monarchs, made it an obligation for the King to respect the Council, which he appointed himself. It had the function of a constitution which should be adhered to by the King. It followed from the constitution that legislation emanated from the King in Council, which was at the same time the highest court of the realm. In the period in question, this institution of supreme justice underwent important changes. It went from being in the beginning mainly a peer’s court for the nobility into being by the end of the period the supreme appellate court that heard complaints from all over the realm and thus paved the way for the later absolutist supreme court after 1660. However there was one important difference as to the judiciary between the times before and after absolutism was introduced, which shall be stressed in what follows. After the introduction of absolutism the judiciary formed an element of the King’s power, however much the King lost interest personally in participation in forensic deliberations. In the earlier period from 1537– 1660 we see a growing interest from the King in personally carrying out justice in the Court, culminating in the figure of King Christian IV who ruled Translated

by Jane Rowley. Ditlev Tamm, The Supreme Court – a Historical Perspective, in: J. P. Christensen et al., The Supreme Court of Denmark, Copenhagen, 2015, p. 91 ff. 1  See

288

D. Tamm

from 1588 to 1648 and was an active judge after coming of age in 1596. We shall consider further the role of four kings: Christian III (ruled 1534–1559), the creator of the modern Lutheran state in Dennmark who abolished the Catholic Church; his son Frederik II (ruled 1559–1588); his son Christian IV (ruled 1588–1648); and, as the last monarch of the old system, his son Fre­ derik III, the first absolute Danish monarch (ruled: 1648–1670). We lack contemporary descriptions of the Danish Courts before 1660. However, later, during the absolutist period, the idea was formed that in earlier times the King had indeed shown a much more active interest in presiding over the court than later, when it gradually became part of royal behaviour not to intervene directly with the business of the Supreme Court. The Danish 18th century historian Niels Slange thus in 1749 underlined Christian IV’s legendary interest in law and order in the following manner: His Majesty was born with an innate talent for judgment, and a particular desire to practise and promote justice at its highest. Never did he find the work tedious, even when presiding at all sessions of the King’s Court.2

Slange provides numerous examples of the king’s personal engagement in cases as a judge. Almost a century later in 1839 – still during absolutism – the legal historian I. E. Larsen endorsed Slange’s appraisal of the personal participation of Danish kings in the administration of justice: ‘All kings in the designated period apparently administered justice diligently and personally, but none of them achieved a more creditable reputation in this regard than Denmark’s immortal Christian IV’.3 Larsen contrasts this interest in presiding over the Court with the period after the introduction of absolutism in Denmark in 1660 and the establishment of a new Supreme Court the following year: ‘When the sessions of the Supreme Court were extended due to the increasing number of cases, and other government business also increased, the King’s presence at the Supreme Court gradually became less frequent’.4 He concluded that in the past the personal participation of Danish kings in the administration of justice had been ‘of a significantly greater magnitude than that His Majesty, under current conditions, exercises today’. Larsen was writing during the last years of the absolute monarchy in the first half of the nineteenth century, when the king was still officially the highest judge. His participation in the administration of justice was by that time reduced to attending the annual opening sessions of the Supreme Court. This shift is significant. Prior to 2  Niels Slange, Den Stormægtigste Konges Christian den Fjerdes Historie I–II, Copenhagen, 1749. 3  I. E. Larsen, Om danske Kongers personlige Deltagelse i Retsplejen (originally published in 1839), in: Samlede Skrifter 1.II, Copenhagen, 1857, p. 303 ff. 4  I. E. Larsen, Om danske Kongers personlige Deltagelse i Retsplejen, p. 303 ff.



The King in Council and the Supreme Court in Denmark 289

1660 Danish kings considered the administration of justice as a personal responsibility which later was assumed by bureaucratic and gradually professional judges. After 1660 the responsibility of the King was reduced to supervising justice and to granting pardon or amnesty when mercy was needed to mitigate decisions considered too severe. This general view that until the advent of absolutism, the kings of Denmark were both diligent and active in the administration of justice, and subsequently lost interest in this aspect of state administration, can be tested against the judicial sources. The question is how close the picture drawn in the 18th and 19th centuries comes to the reality represented by the many thousands of sentences preserved in the archives which were passed by the King and the Council of the Realm in the period preceding the absolute monarchy. During this period, the judicature was in the hands of what could be classified as legal amateurs without formal legal education. With the exception of a few individuals towards the end of the period, neither the King nor the members of the Council of the Realm had embarked upon any academic study of law. Most of the members of the Council had been on a ‘grand tour’ of Europe which included visits to famous universities, but studies of law do not seem to have been part of their curriculum. The qualification was being noble, and usually being the owner of a large estate the administration of which demanded certain skills and knowledge of basic legal principles. Beyond this came simply the training in practice as a member of the Council. What the English philosopher and lawyer Francis Bacon wrote about the English nobility, that exercising the power to judge made them exceptional in an international perspective, also applied to Denmark: ‘abroad in other countries noblemen meddle not with any parcel of justice but in martial affairs, matter of justice that belongs to the gown-men; and this is it that makes those noblemen the more ignorant and the more oppressors …’5 England and Denmark were different. The highest level of the judiciary was in the hands of the King and the noble members of the Council of the Realm as the sole bearers of sovereignty. We only have sporadic knowledge of the court known as the King’s Court and its rulings during the late Middle Ages. This changes after 1536. There is an almost complete record of the activities and rulings by the King and his Council from 1537 to 1660. The decisions made by the King and Council acting as a supreme court have survived in fifty-six substantial ledgers, each volume covering the sessions of one or more years, and each containing between one hundred and several hundred cases. The volumes are registered as ‘Kongens Domme’ – decisions by the King, which is significant for the con5  Quoted from C. Tilly (ed.), The Formation of the National States in Western Europe, Princeton, 1975, p. 465.

290

D. Tamm

ception of whom was instrumental in the Court’s rulings. These volumes are a unique source for the older legal practice of the highest court in the country. Together with the records of the Supreme Court for the time after 1660 we are able to document all cases brought before the highest court in Denmark from 1537 to the present day, a unique, continuous, legal history, also significant in an international perspective. Records of much older rulings exist elsewhere, but few such consecutive and complete records of the rulings of a nation’s highest court exist from nearly half a millennium of activity. Selected rulings by the King’s Court in Denmark have been published before at various times.6 It was however not possible until the advent of computer technology to make a complete survey of the activities of the King’s Court, enabling researchers to use standardised forms and computer databases to conduct a total survey of the activities of the Court over almost one hundred and twenty years from the Reformation to the advent of absolutism. The survey shows that almost 7,400 rulings were entered into the court’s records between 1537 and 1660. Each of them has been given a number and category and (where known) a list of the members of the Council of the Realm, as well as whether the king was present. The parties in each case and their social rank have also been noted, in order to establish a social profile of those who used the King’s Court.7 Among the information anticipated with particular interest, given the above-mentioned widespread perception of the king’s personal role in administering justice, was the extent to which he had personally presided over his own court. The result is rather surprising, even considering the existing appraisals of the king’s diligence in previous historical works. It is hardly surprising that Christian IV takes first place. In his long reign from 1596 to 1648, he presided himself in around 2,500 court cases – the equivalent of 60 % of the cases brought before the King’s Court 6  See J. L. A. Kolderup-Rosenvinge, Samling af gamle danske Love, udgivne med Indledning og Anmærkninger og tildeels med Oversættelse, 4 vols., Copenhagen, 1821–46; J. L. A. Kolderup-Rosenvinge, Udvalg af gamle danske Domme, afsagte paa Kongens Retterting og paa Landsting, 4 vols., Copenhagen, 1842–48; V. A.  Secher, Samling af Kongens Rettertings Domme, 1595–1614, 2 vols., Copenhagen, 1881–86; T. Dahlerup, Det Kgl. Rettertingsdomme og rigens forfølgning fra Christian III’s tid, 2 vols., Copenhagen, 1959–69. A series of rulings by the King’s Court have been published in E. Reitzel-Nielsen/O. Fenger (eds.), Danske Domme, 1375–1662, Copenhagen, 1978–87. 7  The results of this research project with a summary of all cases from 1537–1660 have been edited as Ditlev Tamm (ed.), Kongens Retterting, 1537–1660, I–II, Copenhagen, 2003, with references to literature etc. A preliminary survey of these results were published as D. Tamm, König und Rat als Retchtssprechungs- und Gesetzgebungs­ organ in Dänemark, 1537–1660 – Ein Forschungsprojekt, in: H. Mohnhaupt/D. Simon (eds.), Vorträge zur Justizforschung, vol. 1, Frankfurt 1992, pp. 191–217. Here one may find a survey of older literature and Danish law reports.



The King in Council and the Supreme Court in Denmark 291

in his time. On top of this there were Norwegian cases and those court cases which he attended as part of his education as a minor from 1588–96. He sat on the court for the first time at the age of eleven, and during his early life under strong supervision by the four noblemen who acted as his guardians he attended around 250 cases, or 90 % of the trials of the period. On this basis, Christian IV stands out as one of the most diligent, experienced and longestfunctioning judges in Danish legal history. His predecessors and successors, however, did not take their duties as judges lightly either. During the first years of Christian III’s reign after the Reformation (1534–59), the work of the King’s Court became more systematic than it had been previously. In the first years of his reign, after coming off victoriously in a fierce civil war between 1534–36, the King and Council held several sessions all over Denmark to restore justice in the country. The King himself participated in judging more than five hundred of these cases, or almost 42 % of all rulings during his reign. His son Frederik II (1559–88), who probably unjustifiedly has gone down in Danish history as more of a hunting socialite than a serious monarch, was also not negligent towards his judicial duties. The number of cases brought before the King and Council of the Realm during his reign was not as large as during the reign of his son Christian IV, but he was in court for almost three hundred cases which comes out as 60 % of the cases brought before his court. The number of such cases peaked during the reign of Christian IV and declined markedly during the upheaval of the years of warfare from the 1620s that preceded the introduction of the absolute monarchy in 1660, the King taking part in the Thirty Years’ War and later wars with Sweden. From 1648–55 Frederik III was registered as attending the Court sessions during approximately 60 % of the cases brought before it – a total of 392. After the year 1655 he rarely attended the Court and only a total of 55 cases were in these years tried by the court. 2. Justice as a royal attribute The king’s active participation in the judicature was in keeping with prevailing Protestant views influenced by Aristotelian philosophy, which prioritised justice as a virtue among rulers, alongside the two other virtues, bravery in battle and piety as the guardian of faith. There are numerous indications that the king was regarded as the true bearer of judicial power. Even if the king was not physically present in court, he could influence the rulings of the Council of the Realm when they were later presented to him for approval. There are examples of the king making a personal judgement in such cases. There is not an abundance of material to document this, but enough to

292

D. Tamm

make it likely that the king not only had the decisive vote, but that his vote on a minority ruling could counterbalance the majority. Key here is the register of how the judges at the King’s Court voted, preserved in informal notes for the period after 1623. These notes are usually brief. The voting procedure began at the top of the hierarchy, starting with the most distinguished and the senior members of the Council of the Realm. In most cases the King’s Chancellor as the highest official present would give the first vote followed by the younger members of the council. In most cases, the ruling is annotated Omnes consentiunt – all agree – or after the first voter’s opinion idem – the same – after the names of the other judges starting with the Chancellor. This granted the King’s Chancellor a high degree of influence on the result of the court rulings. In the few cases where a difference of opinion is registered, the opinion of the majority is the sentence passed. In a few cases this is not the case. A reason for this could be that the king had expressed an opinion different from that of the majority, which then determined the subsequent ruling made by the court. We have no conclusive evidence as to this and the overall picture is that the king did not interfere or overrule decisions made by the plurality of the Court. In other cases negotiations between the King and the Council of the Realm on matters of state were conducted in writing. The Council met separately and corresponded with the King by means of the Chancellor as go-between. This rule was not followed when the King and Council acted as a Court. As a rule, the Council of the Realm was summoned to the sessions of the King’s Court that were traditionally held from Trinity Sunday – the week after Whitsun – and continued for weeks, or even months until all cases had been dealt with. Other cases were also discussed, but outside the courtroom the King and Council of the Realm did not sit at the same table. With the chancellor acting as intermediary, questions were submitted to the Council of the Realm in writing and the councillors also returned their opinion on new laws, for example, in writing. Negotiations in the Court thus were different as they enabled a direct exchange of views in which the king had the last word. We may from the leading position of the King as a judge consider the King to have been seen as invested with the judicial power even under the pre-1660 elective monarchy. This could partly explain why the 1665 constitution of the absolute monarchy – the Lex Regia – did not expressly list judicial power as one of the king’s iura maiestatis – rights of sovereignty. The king was already before 1660 considered the highest judge, and thereby the ultimate guardian of justice. This insight adds an extra dimension to research into these historical court cases.



The King in Council and the Supreme Court in Denmark 293

3. Categorizing the cases The decision of the Court would normally be introduced by the words: ‘After the presentation of the charges and counter-charges in the case …’ Research into the judicial archives of the King in Council has answered many questions as to the kind of cases which were brought before the King and Council of the Realm. A simple case classification of the total of about 7,400 cases reveals that the most substantial single group among these are the around 1,400 cases of debt, and between 450–500 indemnity cases, which means that a total of more than 25 % of the cases dealt with debt and credit, most of these with noblemen as debtors. More than 650 cases can be classified as property disputes, and a similar number dealt with forced sale of property in order to satisfy creditors. Pledge rights account for almost 200 cases, there are over 500 inheritance cases, and almost 140 cases of guardianship. A good half of the cases brought before the King’s Court fall into these categories. The King’s Court thus primarily dealt with what would be considered civil actions today. These far outnumber criminal cases. Around 180 trials of homicide are registered, a figure that includes all cases of homicide involving a member of the nobility during this period. In 88 cases (19 of them with the court acting as the first and only instance (as opposed to appeal cases)) the nobleman in question was the defendant, and in 41 the plaintiff. The first case of a non-noble accusing a noble of murder was in 1584. In this case the plaintiff was a clergyman. The first murder case in Denmark where a peasant dared to take a nobleman to court for murder was in 1590. There was a marked increase during the period in the number of cases where non-nobles accused nobles of murder. It was thus also possible for persons of unprivileged rank to bring an action against and secure the conviction of a noble. With the intervention of the King’s Court, certain privileges of rank were thus undermined and the nobility was disciplined. The statute known as the Copenhagen Recess of 1537 introduced the death penalty for murder but only applied this penalty to persons belonging to the clergy, city-dwellers and peasants. Nobles were still at that time exempt from the ordinary death penalty and in the years immediately after the Reformation retained their right to private warfare (fejderet, i. e. feud). Not until the end of the 16th century was it ruled by the King’s Court that the death penalty extended to include nobles. The King’s Court was not especially given to imposing the death penalty, but it did start to enforce it for noble murderers. This may be seen to reflect a growing influence of church doctrine since around 1600. Under the influence of Mosaic criminal law, the death penalty was generally seen as just punishment for murder – a life for a life – without the King being entitled to grant a pardon. This limitation of the exemption of nobles

294

D. Tamm

from severe punishment for acts of violence can be seen as an effective way of disciplining the nobility. A similar tendency can be seen in other criminal cases brought before the King’s Court, with a total of around 70 cases of violence, around 230 cases of slander, 64 cases of theft, and a total of 44 witch trials. This amounts to around 900 cases which today would be categorised as criminal cases. A specific group of cases, most of them criminal, can be seen as the king’s own cases in that the king, by appointing a specific counsel for the prosecution, underlined that by bringing this particular case before the court he acted in the public interest. Most of these specific cases were brought against nobles, as cases in which the need to constrain the nobility was emphasised. These were cases that could not be expected to be brought before the court by private individuals. Generally criminal cases were considered to be private cases subjected to private prosecution but when it came to treason, the abuse of office, piracy, witchcraft on the part of a noble, violent crimes by nobles, or murder, bestiality or other sexual crimes, the king himself appointed an official prosecutor. The King and the council acted also as a peers’ court, and most of the criminal cases brought before the court had noble plaintiffs and few referred to crimes committed by ordinary citizens, something that considerably reduced the impact of the King’s Court on the administration of criminal law in general. Most criminal cases ended in local, district courts or regional courts. 4. The judges and the court All judges at the King’s Court were at the same time members of the Council of the Realm. The Council was known with a specific name, ‘herredag’ or ‘retterting’, when it acted as a court as opposed to an ordinary meeting held by the same council but not presided over by the king. The councillors were a select group appointed by the king from the members of an already numerically very small social group. Seen in a European perspective, the Danish nobility was highly exclusive, with only around one to two thousand adult members out of a population roughly estimated at around seven or eight hundred thousand. New members were only rarely admitted to its ranks, and these few were usually foreign nobles. The circle of noble families was thus static. It was not possible to marry into the nobility as nobles would only marry other nobles, and the clergy and commoners were excluded. Neither was there in Denmark, as in other countries, a noblesse de robe or a path to nobility for civil servants. All noble rights and privileges including all posts as regional prefects or members of the council were reserved for the few members of the ‘true’ nobility.



The King in Council and the Supreme Court in Denmark 295

The Danish form of government of the period is often described as a monarchia mixta, underlining the Council of the Realm’s important constitutional role as a counterpart to the king. In the period from 1536 to 1660, a total of 149 people acted as members of the Council of the Realm and thus also as judges in the Supreme Court. No fixed criteria for their appointment can be established. Owning a significant amount of land was generally a prerequisite, and several of the largest noble families, like the Bille, Rosenkrantz, Friis and Ulfeldt families, were permanently represented with one or more members of the council. Whilst it was the king who appointed the councillors, once they had been appointed they could not, as a rule, be dismissed. On the one hand, they were dependent on the king, in that as payment for sitting on the council, he distributed among them the country’s (more and less lucrative) positions as a regional prefect (lensmand). Denmark was an elective monarchy, and the power of the members of the Council of the Realm was clearly seen when it came to the appointment of the king. On these occasions it was clear that the King was not a hereditary monarch but had his legitimation from election by the Council. The council would therefore insist on concessions from the King in the coronation charter especially as to the position of the nobility, the privileges of the members of the council, and their share in sovereignty. Whilst in the contemporary courts of other countries – such as to some extent the Royal Court of Sweden (Hovrätten), and especially the courts of Germany – the presence of educated lawyers as judges led to the introduction of Roman law, this was not the case in Denmark. The influence of Roman law can only be traced in a very small number of cases. The ignorance of Roman law among the members of the Council of the Realm and their immersion in Danish law meant that the influence of principles of foreign law was meagre. A notorious example is afforded by the 1572 ruling on the Hesselagergård Manor, in which the King’s Court refused to approve the will drawn up by the deceased chancellor Johan Friis, according to which the manor was to become an entailed estate which could only be inherited by the oldest male in each generation. The basis for the rejection of the will was the non-recognition of primogeniture (the right of succession of the first born) and the subsequent exclusion of other heirs, which was considered to contravene the principles of the equal division of an estate, as stated in the Law of Jutland to be the law that regulated the rights of the heirs in such a case. Denmark was still divided into three legal provinces. The old provincial laws, headed by the Law of Jutland from 1241, continued in force until 1683, albeit with a significant amount of supplementary legislation, especially after the Reformation. The statute known as the Recess of Kolding issued during the last year of the reign of Christian III in 1558 codified the majority of the amendments that had been adopted during his rule as did a statute from 1643

296

D. Tamm

with respect to the legislation of Christian IV. Research into the references made to other legal sources in court rulings show that the provincial laws, primarily the Jutland Law, together with the Recess of Kolding were the most frequently cited legal sources. Much other legislation is cited, and there are even references found to other decisions by the Court. The Court did not publish any records but some precedents might be known from private collections of judgements or even be remembered by the court members. The picture that emerges is that no extensive knowledge of law and order was required to make a ruling in the cases brought before the court. Some basic familiarity with the 250 or so articles in the Law of Jutland, supplemented by the Kolding Recess and the more recent legislation which the Council of the Realm had also contributed to, might be considered sufficient knowledge of the law. The procedural language was Danish and all law to be considered by the court was in Danish. To a certain extent, the Court itself contributed to the making of new statutes, and in doing so paved the way for the legal unity which was only achieved later by the legislative reforms of the first decades of the absolute monarchy, culminating in the promulgation in 1683 of a new code. The King’s Court had since the end of the 16th century granted the Jutland Law precedence over other provincial laws by referring to the provisions of the Jutland Law as general principles in some rulings, also in cases that had no relationship to the juridical district of Jutland. But in principle the old provincial laws continued to apply to the cases in each area. In 1604, in a decision in a case from Scania, the King’s Court clearly stated that ‘each province be judged according to its own law’. The words the English historian Lawrence Stone used to describe the English aristocracy also apply to Denmark: ‘Litigation … remained the most popular of indoor sports …’.8 The judges at the King’s Court were nobles, and the vast majority of the parties whose conflicts were brought before the court belonged to the nobility even if this pattern changed during the 17th century. In most cases the defendant was a noble, and cases where none of those involved were nobles only started to appear later, especially towards the end of the period after 1630. Throughout most of its history, however, the King’s Court, as already stressed, was a peers’ court. The nobility was small, but highly litigious. One of the first tasks of the monarchy newly established after the Reformation and the preceding civil war, was to secure the judicial settlement and resolution of the many conflicts of the war years that had not been dealt with 8  Lawrence Stone, The Crisis of the Aristocracy, 1558–1641, Oxford, 1965, p. 242.



The King in Council and the Supreme Court in Denmark 297

by the courts. During the first years of the King’s Court’s activities after 1537, the efforts made to address this task are reflected in the sheer amount of court travel to wherever in the country cases were tried. In some instances, the King’s Court functioned as the court of first instance, also in cases where no nobles were involved and which would therefore usually have been judged by a local court. This was particularly the case in the first years of its existence when no fixed appeal procedure had yet developed. One example is a frequently cited decision in a case of adultery decided in the town of Aalborg in April 1537, where both the adulteress and adulterer were sentenced to death, with reference to the imperial law of the German Empire. In 1537, however, the principle was set out in a statute that normally two earlier court instances were to be heard before a case could arrive at the table of the King and the Council, and was made mandatory. Cases were thus usually appealed by the district courts to the regional courts, and only then to the King’s Court. This order was repeated in the 1558 recess and ratified in a 1572 ruling on a case brought directly before the King’s Court without being tried by other instances: the process was to be started again from below and the plaintiff was to pay the costs of the defendant. The King’s Court could act in two ways. The King and the Council of the Realm were the highest court and as mentioned often presided over by the king, although the court could also sit without the king and was then presided over by the King’s Chancellor. Cases concerning enforcement in property and cases of restitution of title with regard to land were dealt with by the so-called Chancellor of the Realm, who was the head of the court’s administration, and certain members of the Council of the Realm. This chamber would only deal with obvious cases and refer more complicated litigation with regard to the right to land to the full court. Court proceedings before the King and the councillors were always oral. In Danish law this is an age-old tradition at the highest court which was continued at the Supreme Court of the absolute monarchy and retained in the 18th and 19th centuries, despite the introduction of written proceedings in other courts. This provides a partial explanation of the astounding efficiency with which the King’s Court processed cases. It was not unusual for multiple ‘heavy’ cases to be dealt with in a single day. To give an example: on the same day that the Court heard the case of Johan Friis’ attempt to create an entailed estate as mentioned above, the judges managed to decide on two property disputes and a case of what to do with property rights depending on nobility when a noblewoman had married a commoner. The councillors were experienced in making quick decisions from their administration of large estates, and legal education, that can complicate every­day conflicts and require lengthy deliberations and the consultation of

298

D. Tamm

learned works even in simple matters, was entirely absent. The Council of the Realm had a scriptorium where trained scribes presumably prepared the cases and committed the verdict to paper once it was issued. 5. Judges and legislators The fact that the King and the Council of the Realm were functionally both judge and legislator naturally endowed the judges of the King’s Court with a particular authority, and the boundaries between laws and judicial rulings was sometimes indistinct. There are examples of rulings that contravene laws, or sentences being passed without any clear basis in the law. In the 1537 ruling on adultery referred to above, for example, the death sentence was passed on the basis of the imperial law of the German Empire. The sentence could not have been based on Danish legislation, since no legislation on the punishment of adultery existed until after this case. Just a few months later, in August 1537, the King’s Court passed sentence on a case of bigamy. Also here there was a lack of specific statutory provisions, as a result of which the ruling was the more general statement that the bigamist should ‘surrender unconditionally to the custom and order’ which may be taken as a reference to general principles of justice. The role of the King and Council of the Realm thus was not solely judicial. King and Council governed the country together, and the Council of the Realm was also consulted on new laws. The same organ was thus both the legislator and highest court. The period which stretches from the provincial laws of the early 13th century until the Reformation were legislatively uneventful. Very few laws that had universal validity were issued. This changed with the Reformation, when laws – usually called ‘recesses’ in the language of the period – establishing new procedural standards for criminal and civil law were passed. The lack of legislation prior to this provides a possible explanation of the fact that in more than half of the rulings made by the King’s Court no reference to statutory provisions is made in the reasons given for the ruling. This does not, however, mean that rulings with no reference to legislation reflect the workings of an organ able to legislate at will. Nevertheless, during the 1500s there was a tendency to consider the King’s Court as a legislative body, the judgements of which had universal validity. Just as it was left to the magistrate – the praetor – to adapt the law to new social conditions and new conflicts in Ancient Rome, in post-Reformation Denmark it was to a large extent crown officials – the judges – who in their rulings made adjustments to the law necessitated by changing circumstances.



The King in Council and the Supreme Court in Denmark 299

V. A. Secher’s collection of Danish laws and regulations for the period 1558–16609 reveals that a total of c. 3,500 royal statutes and other minor administrative and police regulations were issued, which make around 35 a year on average. The number of judicial rulings is higher, but the cases are unevenly distributed over the period. There are years when the court does not convene at all, but also years when its activities peaked, as in 1623 when there were 333 rulings. The average number of rulings per year during the period was 55. An example of legislating through court rulings is offered by a judgement on mill property from 1542. The ruling states that the nobles of Jutland were dissatisfied with a regulation on mill property in the medieval Law of Zealand (II,5), known as Erik’s law from the mid-13th century, being applied in Jutland. Through its ruling, the King’s Court decided how the regulation was to be understood, so that ‘each man, hereafter, can better know that with which he should comply …’ When, twelve years later, the understanding of this ruling was disputed, the King’s Court clearly stated that the decision should be understood as a statutory regulation which applied to such mill property which had been inherited but still was not divided between the heirs before the date of the decision. Two rulings from 1553 provide examples of the King’s Court establishing new legal principles by ruling that in a sale context, real estate in market towns was to be viewed as a chattel and therefore did not have to be offered to family members prior to sale. Several rulings on morning gifts also show how intricately laws and rulings were connected in the activities of the King’s Court. In 1562, the King and Council of the Realm had ruled that a widow had the right to withdraw beforehand the sum represented by her ‘morning gift’ (a gift from husband to wife at the start of the marriage) from an otherwise indebted estate. The plaintiff claimed that the right of a wife to withdraw her morning gift from an estate was a time-honoured tradition, also in cases where the estate had no other assets. A subsequent law on morning gifts issued in 1577 set a limit of 2,000 old Danish crowns on morning gifts. The preamble to the law emphasised that the 1562 ruling had been abused, as a result of which the widow’s heirs had been forced to assume a larger portion of the debt after the withdrawal of the widow’s morning gift. It has already been mentioned how in 1590, for the first time, the King’s Court passed the death sentence in a case brought by a peasant against a noble, who was found guilty of attacking and killing a nobleman’s servant on his way to court. In this case, the sentence was passed without statutory basis. A royal ordinance introducing the death penalty in cases of violation of 9  V. A.

Secher (ed.), Corpus constitutionum Daniæ I–VI, Copenhagen, 1887–1907.

300

D. Tamm

the peace to be kept around court proceedings was issued on 14 August 1590, just a few days after the case was ended. As already established, cases pertaining to the debts of nobles comprised a large portion of cases at the King’s Court. These cases are an important source of information about the economic circumstances of the Danish nobility during this period. Until 1621, the King’s Court was the nobility’s forum in debt cases. These cases reflect the difficulties the nobility had in obtaining credit, something partly due to non-nobles not being able to make claims against or take possession of the land of nobles. Through the rulings of the King’s Court, the ground was laid for the reform of credit legislation, reforms which were implemented in new legislation from around 1620 onwards. In 1632 mortgages on real estate were introduced to improve the credit options of nobles. The number of actions for debt against nobles brought before the King’s Court declined after the issue of these laws, which also deprived the nobility of their privileges in relation to the forum in such cases. Not that the total number of actions for debt in Denmark declined. At the same time the number of debt disputes treated by the King’s Court only between commoners increased, a clear indication that during the 1600s the King’s Court was becoming a Supreme Court for everyone in the country. 6. The King’s Court and other Danish courts The cases dealt with by the King’s Court represent only a small fraction of the court cases in Denmark during the period between the Reformation and the advent of the absolute monarchy. But it is the only court with continuous records. Of the regional courts, Viborg has the most continuous records, although they start only in 1617. We know less about the cases brought before local high courts. It seems that about half of the cases brought before the King’s Court were appeal cases from either the high courts or municipal courts in larger towns, whose rulings could be appealed to the King’s Court. The majority of these cases came from the courts of the main three towns, Copenhagen, Christianshavn and Malmö. There are also appeal cases from the Admiralty or Court of Inquiry. Until the early 1600s, only a minority of the cases before the King’s Court (10–20 %) were appeal cases, but after that time the number of appeal cases increased to comprise half and sometimes more than half of the cases brought before the King’s Court. Many of these cases had already been through a court of first instance, but only a total of around 1,900 cases reached the court in the third instance. In these cases there was an obvious tendency for the King’s Court to confirm the rulings of the judges of the regional courts of second instance. The chances of the King’s Court reaching another verdict can be estimated at around 10–20 %,



The King in Council and the Supreme Court in Denmark 301

apparently a little higher in cases where the King’s Court was the second instance. The limited number of cases in third instance restricted the significance of the King’s Court as a guide for local courts in Denmark. Very few judgments made by the local district courts came this far, slightly more from the town courts. There are even districts – northern and western Jutland – where not a single case came before the King’s Court. In other districts there was a case or two, with only a handful of districts with as many as 15 appeal cases. The district of Göinge in Scania was a clear exception, with 38 cases reaching the King’s Court. The judges who had most contacts with the King’s Court were judges of the regional or High Courts. The number of such regional courts might vary over time. The most important were the four found in Scania, Zealand, Funen and Jutland. A limited number of minor and less prestigious High Courts were found on certain islands. Given the structure of the appeal system, the district judge himself was summoned in appeal cases before the high court and high court judges had to appear before the King and the Council if their decision was heard here. This meant that a large number of the judges in appeal cases were present where the King’s Court was held and thus became acquainted with its rulings. The appeal system thus played a significant role in the dissemination of knowledge of the rulings of the highest court. Decisions made by the King’s Court were not officially printed or directly communicated in any other way to those other than the parties involved, but knowledge of decisions could be spread by those present at the palace where the Court was held and thus it could influence the rulings of other courts. Another way for knowledge of the rulings of the King’s Court to spread was through private law reports. A large number of such private collections of law reports have survived. Some of them contain only a handful of rulings, whereas others contain around 200. In a few cases, the owner of these handwritten records can be identified as a judge or a provincial governor. Most of them contain the rulings of several courts, and many contain rulings made by the regional court of Jutland situated in Viborg. To some extent these records were made by transcription offices in Viborg or Odense. It is not always the most legally interesting rulings that are included in these records. Only a few such books of records include some of the most legally remarkable rulings, and it can be difficult to fathom the selection criteria for the inclusion of others. In some cases inclusion is obviously due to the celebrity of the parties involved. That the establishment of a precedent formed the basis for inclusion can thus often be excluded. The King’s Court, on the other hand, often referred to its own earlier rulings, but most often in upholding rights on the basis of a previous decision.

302

D. Tamm

A comprehensive programme of publication of these private law records several years ago has made it possible to consider the extent to which the rulings of the King’s Court were documented in contemporary transcriptions. Yet it is not possible to get an overview of the coherence of contemporary judicature from such sources. These private law records include only a few hundred of the many thousands of rulings made by the King’s Court, most of them from before 1600 and the criteria for choosing cases to be thus published are far from clear. Identifying which rulings were noted in how many of these law records is in itself relevant, but since it was during the later period that the King’s Court became a general court of appeal with a large number of cases, only a closer analysis of these cases can provide a necessary overview of its activities. 7. Doing justice The administration of justice by the King’s Court does not provide evidence that seventeenth-century Denmark was a society based on the rule of law.10 The rulings were too random, and the number of cases involving anyone other than the nobility or wealthy too few. There were, however, examples of peasants winning cases against their master in cases of both physical and financial abuse. Righteousness was an important virtue in a ruler during the 1500s and 1600s. The king’s extensive, personal participation in the administration of justice symbolised his efforts to be seen as a just monarch. Contemporary eulogies also show that demonstrating a sense of justice was an important aspect of the activities of the members of the Council of the Realm. In his eulogy to the nobleman Herluf Trolle, who died in 1565, the leading Danish professor of Theology, Niels Hemmingsen wrote: ‘In times of peace the law was his precept, no means to oppress the poor were of his invention, and no violence against any man in court. Injury to charity and compassion he punished according to the law, and demonstrated leniency where people could be spared without harm. Woeful he was when the offence was such that he was obliged to penalise with death or bodily harm’.11 What Hemmingsen describes here is not Trolle’s actual role as a judge or his role as a law-enforcing lord lieutenant, but the characteristics of a just official who complied with the law, but was also willing to mitigate its severity when circumstances justified it. Holger Oluf Skaaning paints a similar portrait of Councillor of the Realm Iver Juel (1563–1627) in his eulogy of 1630, in which he emphasised that as his guiding principle Juel chose God’s advocacy of justice for the victims of fire. Juel, he emphasised, paid 10  As

claimed in Hans Fussing, Herremand og Fæstebonde, Copenhagen, 1942. Billeskov Jansen, Humanitas Christiana, Copenhagen 1990, p. 97.

11  F. J.



The King in Council and the Supreme Court in Denmark 303

no heed to the rank and standing of the parties, nor was he deceived by ‘Machiavellian’ advisors. He listened to the poor and exercised ‘justice with clemency’. These examples, to which more could be added, show how the idea of justice had pervaded the perception of judicature of the period. To be just was also a nobleman’s virtue, expected of those who bore the golden chains of nobility. But to be just was first and foremost associated with the king, and was an early part of his education. As a child, Christian IV wrote essays in Latin on the duties of the just monarch, and the Councillor of the Realm and historian Arild Huitfeldt emphasised the significance of justice in the small chapters functioning as ‘mirror of princes’ which introduced the individual volumes of his history of Denmark.12 The covers of the law records of the King’s Court are inscribed with the words Kongens domme – ‘Judgments of the King’. The decisions show him as someone who disciplines the nobility and listens to the common man seeking justice against those with more power. This epoch of the Danish court and judicial system where we find a king taking part actively in administering justice finished with the end of the personal rule that had characterised the old monarchia mixta whereby the king and Council of the Realm ruled in concert. During absolutism after 1660 the judicial system was bureaucratised, and the demands on judges to be legally qualified increased. During the eighteenth century new principles on the independence of the judicial system from the crown created the foundations of the modern judicature and granted the highest court of the land a new status. But the fifty-six volumes of court records on the shelves of the Danish National Archives tell the story of kings as legal amateurs whose lodestar in the law was being a just ruler. The word justice has been out of favour in Danish philosophy of law, but is apparently making a comeback due to the influence of international currents in legal studies. From a historical perspective this is hardly surprising. Without acknowledging the significance of an abstract understanding of justice in the courts of the 16th and 17th centuries, it would be impossible to evaluate the role of the king as judge in Danish society during the Renaissance. Bibliography Billeskov Jansen, F. J., Humanitas Christiana, Copenhagen, 1990. Corpus constitutionum Daniæ I–VI, Copenhagen, 1887–1907. 12  In the introduction to each volume of his Danmarks Riges Krønike, Copenhagen, 1595–1604.

304

D. Tamm

Fussing, H., Herremand og Fæstebonde, Copenhagen, 1942. Huitfeldt, A., Danmarks Riges Krønike, Copenhagen, 1595–1604. Larsen, I. E., ‘Om danske Kongers personlige Deltagelse i Retsplejen’, in: Samlede Skrifter, Vol. 1(II), 1839, 303 ff. Reitzel-Nielsen, E./Fenger, O. (eds), Danske Domme 1375–1662, Copenhagen, 1978– 87. Slange, N., Den Stormægtigste Konges Christian den Fjerdes Historie I–II, Copenhagen, 1749. Stone, L., The Crisis of the Aristocracy, 1558–1641, Oxford, 1965. Tam, Ditlev, ‘König und Rat als Rechtssprechungs- und Gesetzgebungsorgan in Dänemark, 1537–1660 – Ein Forschungsprojekt’, in: Mohnhaupt, H./Simon, D. (eds.), Vorträge zur Justizforschung, Vol. 1, Frankfurt, 1992, 191–215. Tamm, D. (ed.), Kongens Retterting, 1537–1660 I–II, Copenhagen, 2003. Tamm, D., ‘The Supreme Court – a Historical Perspective’, in: Christensen, J.-P. et al. (eds.), The Supreme Court of Denmark, Copenhagen, 2015, 91–120. Tilly, C. (ed.), The Formation of the National States in Western Europe, Princeton, 1975.

M. KORPIOLA

The Svea Court of Appeal: A basis for good governance and justice in the early modern Swedish realm, 1614–1800 Introduction The Svea Court of Appeal, founded in 1614, is the oldest of all the Swedish royal courts of appeal, adjudicating by the authority of the king. Its decisions were ordinarily final, unless the king granted the extraordinary remedy of revision (beneficium revisionis) or decided to show mercy. As such, the Svea Court of Appeal represented new ways of organizing the powers of the king as the superior judge in his realm. Before the establishment of the Court in 1614, several institutions and courts had been more or less permanently administering justice in the king’s name ever since the late Middle Ages. But while some had remained only short-lived experiments, the appellate court model proved successful in the long run. Until further courts of appeal were established in 1623 in Turku and in Dorpat (present-day Tartu in Estonia) in 1630, the geographical district of the Svea court encompassed the whole of Sweden, including Finland and the newly-acquired Baltic provinces. While the establishment of new territorial courts of appeal reduced the geographic range of the jurisdiction – and workload – of the Svea Court of Appeal, it remained primus inter pares. The Court was staffed by men chosen by the king – as in the other courts of appeal – but in Svea, royal favour and patronage seem to have played a more important role than mere education, experience or legal skills, especially in the seventeenth century.1 The Drots of the Realm,2 the highest-ranking judi1  I would like to acknowledge the support of the Finnish Cultural Foundation (Suomen Kulttuurirahasto) for its grant that made possible the research project Svea Court of Appeal, 1614–2014: Activity, Actors, Role, and enabled me to conduct research in Stockholm. Warm thanks are also due to the leaders and participants of the Gerda Henkel Stiftung funded project of which this book is the outcome for the discussions during the meetings. I would also like to thank Elsa Trolle Önnerfors (Lund) and Jussi Sallila (Helsinki) for their help with some more elusive written material. Marianne Vasara-Aaltonen, From Well-travelled ‘Jacks-of-all-trades’ to Domestic Lawyers: The Educational and Career Backgrounds of Svea Court of Appeal Judges, 1614–1809, in: M. Korpiola (ed.), The Svea Court of Appeal in the Early Modern

306

M. Korpiola

cial official corresponding to a minister of justice and one of the leading aristocrats of the country, initially presided over it. Four other members of the Council of the Realm were appointed as its judges.3 Swedish legal culture was dominated by lay judges, but the Svea Court of Appeal – and later, its sister courts – came to represent the most erudite legal learning in the country. The high status of the Svea Court of Appeal as a royal court was further emphasized by its locations in the capital of the Swedish Realm. Together with the rest of the Swedish central government, it was first situated in the royal castle ‘Tre Kronor’ (Three Crowns), a medieval fortress on the island of Stadsholmen in the hub of Stockholm.4 However, residing at the castle was only to be a temporary arrangement for the Court ‘until a comfortable house can be decorated for it in the town’.5 Yet, as the Crown persistently Period: Historical Reinterpretations and New Perspectives, Rättshistoriska studier, 26, Stockholm, 2014, pp. 301–354 at 332–335. The Court of Appeal nominated the candidates and the monarch chose whom he wished from among them. 2  Roughly corresponding to the Lord High Steward; high royal official who acted and adjudicated in the name of the king in the Middle Ages, revived in the mid-sixteenth century as an honorific title. The Drots of the Realm was the president of the Svea Court until 1661, when the duties of the Drots started to pile up so that a separate presidency of the Svea Court was created. The position of Drots was abolished in 1686 for about a century: Stig Jägerskiöld, Hovrätten under den karolinska tiden och till 1734 års lag (1654–1734), in: S. Petrén/S. Jägerskiöld/T. O. Nordberg (eds.), Svea hovrätt: Studier till 350-årsminnet, Stockholm, 1964, pp. 119–336 at 128, 130. 3  The fourteen judges of the Svea Court of Appeal were divided into three classes. In addition to the president, four noble assessors elected from among the councillors of the realm were in the first class. Five noble judges formed the second class, while four commoners, learned or skilled in law formed the third class: Rättegångz-Ordinantie (1614) (Ordinance of Judicial Procedure) (RO 1614 hereafter), in: Johan Schme­deman (ed.), Kongl. stadgar, förordningar, bref och resolutioner ifrån åhr 1528, in til 1701, Stockholm, 1706, p. 137. Judges could move from class to class by ­ennoblements and a rise of status. The three classes were abolished in 1698 by the increasingly autocratic King Charles XII (r. 1697–1718): Resolution of King Charles XII, 14 Feb. 1698, in: Schmedeman (ed.), Kongl. stadgar, pp. 1498–1499; Jägerskiöld, Hovrätten under den karolinska tiden, pp. 168–170. The link between membership in the Council of the Realm and the courts of appeal was broken in 1723: Jägerskiöld, Hovrätten under den karolinska tiden, p. 150. 4  Tord O:sson Nordberg, Hovrättens ämbetslokaler, in: Petrén, Jägerskiöld and Nordberg (eds.), Svea hovrätt, pp. 337–393 at 337–349. 5  § 14, Instrument of Government (29 July 1634), in: Emil Hildebrand (ed.), Sveriges regeringsformer 1623–1809 samt kungaförsäkringar 1611–1800, Stockholm, 1891, p. 13. Much the same, residence at the royal castle whilst waiting for a site of its own, applied to the Göta and Turku Courts of Appeal: Gunnar Bendz, Göta hovrätt genom seklerna, Stockholm, 1935, pp. 82–87; Yrjö Blomstedt, Turun hovioikeuden toimitilat, in: Y. Blomstedt (ed.), Turun hovioikeus 1623 31/10 1973 Åbo hovrätt, Porvoo, Helsinki, 1973, pp. 186–222 at 186.



The Svea Court of Appeal307

lacked the means to erect a palace of justice for the Court, it was still in residence in its apartments when a devastating fire destroyed the castle in 1697. After this, the Svea Court moved a couple of times from one noble town palace to another before settling at the former palace of the Wrangel family in 1756. It has remained there ever since.6 King Gustav II Adolf (r. 1611–1632) established the Svea Court in 1614 out of political necessity and because of war – as will be discussed in more detail below. He needed the consent of the Estates of Sweden7 to the ransoming of the fortress of Älvsborg conquered by the Danes and to extraordinary taxes for war against Russia. As the Estates had expressed their concern for the state of the judicature and the administration of justice more generally, the new court was a show of good governance and reinforcement of the traditional image of the king as a guarantor of justice for his people.8 This propaganda exercise was successful, and a couple of years later, the Svea Court of Appeal was lauded for forming the ‘basis and foundation for a good and laudable Politia in our beloved fatherland’ which with the aid of God would help to keep King Gustav II Adolf long in power.9 Even if the Court was established as a hasty measure in an age of crisis and war, it became a success story. The establishment of further new courts of appeal in the 1620s and 1630s should not be considered a sign of King Gustav II Adolf’s failure to centralize the administration of justice in the realm.10 Rather, the new court had shown its usefulness in less than a decade in administering royal justice and monitoring the local courts and administration. Therefore, the model of the Svea Court was duplicated in the subsequent courts of appeal established in the provinces to make justice more accessible to the common people and to make the control of the Realm more effective at a grass-roots level. This having been said, all the appellate courts 6  Nordberg,

Hovrättens ämbetslokaler, pp. 350–388. four Estates, nobility, clergy, burghers and peasants, convened at the Diets and formed the Swedish parliament, the riksdag (lit. ‘day of the Realm’). As the consent of the Estates was necessary for extraordinary taxes, they convened regularly every couple of years in the early seventeenth century. 8  Mia Korpiola, A Safe Haven in the Shadow of War? The Founding and the Raison d’être of the New Court, Based on its Early Activity, in: Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period, pp. 55–108. 9  Och såsom itt Fundament och Grundwaal till en godh och berömmeligh Politia vthi wart käre Fädernesland: Så at ther Gudh then Aldrahögste täcktes honom länge widh macht holla …: Georgius am Wald, trans. Ericus Schroderus, Georgii am Waldt, …, Rättegångz Oordning, hwaruthinnan förhandlas och tilkenna giffs, Huru then ledhe Sathan …, Stockholm, 1619, f. Aijr–Aijv. 10  E. g., Nils Edén, Den svenska centralregeringens utveckling till kollegial organisation i början af sjuttonde århundradet (1602–1634), Uppsala, 1902, p. 257. 7  The

308

M. Korpiola

came to have somewhat different profiles depending on the socio-economic conditions of the surrounding regions.11 While contemporaries may have explained that the tasks of the courts of appeal were twofold, to adjudicate in criminal cases and in civil cases either on appeal or in cases pertaining to their jurisdiction by virtue of privileges,12 in fact, the courts of appeal had a wider range of activities. They were to become the main instruments of the so-called legal revolution, the harmonization of Swedish law and court practice and the submission of all local courts and judges to the control of the royal administration through the oversight of the courts of appeal. Their role in promoting the reception of foreign, mainly Roman and German law, has been debated. Currently, researchers are moderating earlier notions of the scope of the reception of Roman law in the seventeenth-century Svea Court of Appeal practice.13 The Court started a trainee system for judges in 1627 as a temporary measure in order to quickly alleviate the acute need of the Crown for officials competent in the field of law. However, this crisis management measure became a permanent means to educate future administrators in the central and town administration as well as the judicature.14 While centralization of both Swedish law and its judiciary and harmonization were not factors triggering the actual establishment of the Svea Court, once founded the Court started to promote this development with its activities.

11  Mia Korpiola, Preface, in: Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period, pp. 18–19. 12  Joh. O. Stiernhöök, De jure Sveonum et Gothorum vetusto, Rättshistoriskt bibliotek, vol. 1, Stockholm, 1962, pp. 42–43. 13  For the more traditional views emphasizing the role of the courts of appeal as conduits of the reception of Roman law, see, e. g., Stig Jägerskiöld, Studier rörande receptionen av främmande rätt i Sverige under den yngre landslagens tid, Lund, 1963, passim; Jägerskiöld, Hovrätten under den karolinska tiden, pp. 266–268, 329; Kjell Åke Modéer, Oberste Gerichtsbarkeit und zentrale Gewalt im Schweden in der frühen Neuzeit, in: B. Diestelkamp (ed.), Oberste Gerichtsbarkeit und zentrale Gewalt im Europa der frühen Neuzeit, Cologne, 1996, pp. 191–213 at 208–210. For recent ­criticism, see Elsa Trolle Önnerfors, Justitia et Prudentia. Rättsbildning genom rättstillämpning: Svea hovrätt och testamentsmålen, 1640–1690, Rättshistoriskt bibliotek, 70, Stockholm, 2014, pp. 47–48, 64–65, 350–351, 356–357; Heikki Pihlajamäki, The Court of Appeal as Legal Transfer: The Svea and Dorpat Courts Compared, in: Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period, pp. 217–260 at 231–237; Jussi Sallila, Entangled in Insolvency: The Svea Court of Appeal and the Making of Bankruptcy Law in Late Seventeenth-Century Sweden, in: Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period, pp. 261–300 at 295–296. 14  David Gaunt, Utbildning till statens tjänst: En kollektivbiografi av stormaktstidens hovrättsauskultanter, Studia Historica Upsaliensia, 63, Uppsala, 1975, pp. 38– 52.



The Svea Court of Appeal309

1. The establishment and activities of the Court: Administering justice in the king’s name in a time of crisis15 The Svea Court of Appeal was established in a time of profound crisis. Only fifteen years previously, Duke Karl of Södermanland (1550–1611), father of the young King Gustav II Adolf, had managed to defeat his nephew, King Sigismund of Sweden and Poland (r. in Sweden 1592–1599). Thereby, he became the de facto ruler of the country for several years, before being formally crowned King Charles IX in 1607. The Polish and Catholic threat resulted in real plots, but also paranoia for alleged conspirators. Political opponents were imprisoned, executed or exiled and their property confiscated. Charles also became involved in simultaneous wars on three fronts – against Russia, Denmark and Poland. At his death in 1611, his heir had barely reached majority. The Estates of Sweden took advantage of the negotiations relating to the succession of Crown Prince Gustav Adolf to voice many of their grievances concerning the heavy-handed reign of his father. Furthermore, they insisted that judicial forms as expressed in the laws of Sweden be observed more closely.16 In addition, the whole realm still remembered the bloody Finnish peasant revolt of 1596–1597 known as the Club War, the last big peasant revolt of Western Europe, which may have claimed the lives of up to 3,000 Finnish peasants.17 Thus, the sense of injustice and dissatisfaction among the common people was indeed something to be taken seriously. Gustav II Adolf extracted himself from the hostilities against Poland without great difficulties, but the war against Denmark was another matter. The peace treaty of Knäred (1613) required that Sweden had to ransom back the strategically important fortress of Älvsborg on the west coast of Sweden for the astronomical sum of ten barrels of gold, corresponding to one million silver riksdalers. Worse, the sum had to be paid in instalments by 1619. Raising the Ransom of Älvsborg strained the Swedish economy almost to breaking point, and required extraordinary taxation that necessitated the con15  For another kind of interpretation of the establishment and the early activity of the Court, see Sture Petrén, Hovrättens uppbyggnad, 1614–1654, in: Petrén/Jägerskiöld/Nordberg (eds.), Svea hovrätt, pp. 1–117 at 3–22. 16  Assurance of King Gustav II Adolf to the Estates of the Realm, 31 Dec. 1611, in: And. Anton Stiernman (ed.), Alla Riksdagars och Mötens Besluth/Samt Arfföreningar/ Regements-Former, Försäkringar och Bewillningar, etc., Stockholm, 1728, pp. 651– 658. 17  E. g., Heikki Ylikangas, Klubbekriget: det blodiga bondekriget i Finland, 1596– 97, Stockholm, 1999; Kimmo Katajala, The Changing Face of Peasant Unrest in Early Modern Finland, in: K. Katajala (ed.), Northern Revolts: Medieval and Early Modern Peasant Unrest in the Nordic Countries, Studia Fennica Historica, 8, Helsinki, 2004, pp. 149–187 at 153–159.

310

M. Korpiola

sent of the Swedish Estates.18 Moreover, as Gustav II Adolf turned his attention to the war against Russia in Livonia and Ingria, this required even more levies both in soldiers and in ready money. The political and financial crises required that the king address the concerns of the Estates concerning the state of law and justice. The establishment of a permanent court of appeal in Stockholm in order to ensure that justice prevailed was a show of good governance by the king, and contributed to the legitimacy of the reign. Moreover – and very importantly for the king as he was embarking on a military campaign overseas in Livonia and Estonia – the newly established court was the perfect place to which all justice-related matters could be remitted. This enabled the king, while abroad, to concentrate on warfare unburdened by supplications from litigants and subjects claiming miscarriages of justice. Therefore, the Svea Court of Appeal was not merely an appellate court but also a ministry of justice taking care of a very wide spectrum of justice-related matters in the absence of the monarch overseas. Indeed, a comparison of the Chancery Ordinances (kansliordning) of the Royal Chancery before and after the establishment of the Court (1612 and 1618) proves this. The legal complaints and supplications that in 1612 had burdened the Royal Chancery so that they had been entrusted to a specially nominated royal secretary had disappeared by 1618.19 Obviously, the Svea Court had relieved the Chancery of most justice-related matters. Thus, there are some similarities between the circumstances relating to the establishment of the Svea Court in 1614 and the Reichskammergericht of the Holy Roman Empire in 1495, indicating that in both cases, the monarch had needed the consent of the Estates for extraordinary levies for war. Therefore, a political compromise had to be forged so that in order to raise funds for warfare abroad, the monarch had to concede measures lessening internal strife and improving justice by a new royal court. However, while the Reichs­ kammergericht came to symbolise a moment of imperial weakness, the Svea Court of Appeal was a monument of royal power that lessened the workload of the king and his Chancery at vital moments of a military campaign.20 In addition, the king still retained his supreme powers as judge by the beneficium revisionis and his prerogative of pardon. Some of the powers granted to 18  Michael Roberts, Gustavus Adolphus: A History of Sweden, 1611–1632, vol. 1, London, 1953, pp. 122–129. 19  Chancery ordinances of 1612 and 1618, in: C. G. Styffe (ed.), Samling af instructioner rörande den civila förvaltningen i Sverige och Finnland, Stockholm, 1856, pp. 295–297, 300–302. 20  Peter Schmid, Die Reformbeschlüsse von 1495 und ihre politischen Rahmenbedingungen, in: B. Diestelkamp (ed.), Das Reichskammergericht: Der Weg zu seiner Gründung und die ersten Jahnzehnte seines Wirkens (1451–1527), Cologne, 2003, pp. 117–144, esp. at 130–137.



The Svea Court of Appeal311

the Court, moreover, were temporary and subsequently reduced after the return of the king. Consequently, because of the acute need for establishing the Court, it started its work in May 1614 rather precipitously so that many important matters such as the seal of the court, the detailed court procedure, certain legal fees, the salaries of its officials as well as the upkeep and travelling expenses of its judges had been left unregulated.21 These concerns were addressed in the summer of 1614, and the Court was authorized to use an unofficial version of the Rättegångs-Process, the Procedural Rules for the Court of Appeal, until a later version would be confirmed by the king.22 In addition, the 1614 Ordinance that had established the Court had left the precise relationship between Court and King unregulated in various cases – for example during the king’s absence overseas and after his return. This gave rise to uncertainty and questions which led the king to define the powers of the Court in a series of decisions in the following years. As was traditional all over Europe, the Swedish king was the ultimate guarantor of justice in his realm. As the king was the supreme judge in the realm, he was to resolve any cases in which there was no law or its interpretation was unclear. As the 1442 Law of the Realm for the countryside, promulgated by King Christopher (III) of Bavaria (r. 1441–1448) decreed: ‘[the king] may use in his realm the highest judicial power, given to him by God, over all secular judges and hear the complaints of the common people …’23 This was not only a royal prerogative, but also a duty, further emphasized by the coronation oath of the king. In addition, kings made an assurance to the Estates of the Realm as part of the mutual legal acts of their acceptance as ruler and their coronation. On the same day, the Estates would give their consent to a new extraordinary tax. King Gustav II Adolf’s assurance re21  Riksarkivet (hereafter RA, National Archives of Sweden), Stockholm, Sweden, Svea hovrätts huvudarkiv (hereafter SHA, Main Archive of the Svea Court of Appeal), B I a:1 (Registratur över utgångna skrivelser, Register of outgoing letters), 28 June 1614, f. 15v–16v; Resolution of the Court of Appeal on its Court Fees, RA, SHA, E I:1a 1b (Inkomna handlingar, kungliga brev, Received letters, royal letters), 1 Sept. 1614, f. 70r; RA, SHA, B I a 1, Memorandum of the Court of Appeal to Chancellor Axel Oxenstierna, 30 June 1614, f. 17v–18v. See also Korpiola, A Safe Haven, pp. 55–108. 22  RA, SHA, E I:1a 1b, Letter from Gustav II Adolf to the Court of Appeal, 25 July 1614, f. 69r–69v; Resolution of the Court of Appeal on its Court Fees, RA, SHA, E I:1a 1b, 1 Sept. 1614, f. 70r; Rättegångs Process, 23 June 1615 (Procedural Rules for the Court of Appeal, hereafter RP 1615): Schmedeman (ed.), Kongl. stadgar, pp. 143–163. 23  Chapter on the king 4:9, in: Martti Ulkuniemi (ed.), Kuningas Kristoferin maanlaki 1442, Suomalaisen Kirjallisuuden Seuran toimituksia, 340, Helsinki, 1978, p. 30.

312

M. Korpiola

flected recent political concerns, and many points were related to justice and the law. He promised to uphold Swedish law and all the privileges, and not to make new laws or alter or abolish old ones without the consent of the Estates. He also promised to appoint more judges and officials in order to ‘protect subjects, poor and rich alike, from violence and injustice, and help to provide them with law and justice’. He further agreed not to confiscate property or imprison anyone without due process and sentence.24 Before the Svea Court of Appeal was established in 1614, there had been several fora for the king’s superior justice ever since the Middle Ages.25 The kings provided the people with local justice in the provinces at various legal assemblies or ‘royal assizes’: landsting, räfsteting and rättarting in which secular and ecclesiastical magnates nominated by the king, often members of the Council of the Realm, adjudicated in his name.26 The king was also the supreme judge of the manorial courts (borgrätt), a court in a royal castle or manor adjudicating in disciplinary cases usually regulated by special disciplinary statutes: in the Middle Ages concise manorial laws (gårds­rätt), but later in the sixteenth century longer court ordinances (hovordning). Their jurisdiction also encompassed courtiers, persons in royal service or members of the garrison. There was usually an ad hoc panel of sworn-in judges, nominated by the king and consisting of leading royal servants (e. g., keepers of the castle), higher officers and Councillors of the Realm.27 In addition to these traditional courts, there had been several experiments on the arranging of royal justice before the founding of the Svea Court. King Gustav I Vasa (r. 1523–1560) had established a commission or council (regementsråd) consisting of secular magnates and officials as well as of some members of the clergy for certain provinces in 1540–1542.28 King Erik XIV (r. 1560–1568), Gustav Vasa’s eldest son, created a more permanent ‘High 24  Assurance of King Gustav II Adolf to the Estates of the Realm, 31 Dec. 1611, in: Stiernman (ed.), Alla Riksdagars och Mötens Besluth, pp. 654–657. 25  See also generally, Mia Korpiola, General Background: From Judicial Crisis to Judicial Revolution through the Svea Court of Appeal?, in: Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period, pp. 23–54. 26  Gabriela Bjarne Larsson, Stadgelagstiftning i senmedeltidens Sverige, Rätts­ historiskt bibliotek, 51, Stockholm, 1994, p. 62; Chapter on Procedure 9–10, in: Ulkuniemi (ed.), Kuningas Kristoferin maanlaki 1442, pp. 110–111; Ragnar Hemmer, Landsrätten i Åbo: Finlands första Högsta domstol, Societas scientiarum fennica årsbok – vuosikirja, B:3, 27, Helsingfors, 1949, esp. pp. 4–11, 40. 27  Jan Liedgren, Gårdsrätt, in: Kulturhistoriskt lexikon för nordisk medeltid från vikingatid till reformationstid, 5, Copenhagen, 1960, cols. 645–647. 28  E. g., Några handlingar till Gustaf I:s historia, Strödda meddelanden och aktstycken, in: Historisk Tidskrift, 1887, pp. 194–198; Ståthållaren Gustaf Olofsson Stenbocks och Biskop Svens i Skara redogörelse inför K: Gustaf I öfver Regiment-



The Svea Court of Appeal313

Council’ (Höga nämnd), consisting of noblemen and officials, again judging with royal authority. In 1563, King Erik authorized it to visit all the provinces and adjudicate in his name cases that could not be resolved by the lagman, the superior provincial judge, both wagered and first instance cases alike. While the High Council bore a resemblance to a manorial court (borg­ rätt), it had wider powers and basically heard cases from all over the country.29 What had also happened in practice was that there had been an amalgamation of systems in which there seem to have been fewer regular legal assemblies in the provinces, as regulated by the Swedish medieval laws, and more conciliar ad hoc courts. The Councillors of the Realm sat more often as a panel of judges in the town court of Stockholm with the burgomaster and town councillors on the panel. Such royal tribunals also resembled manorial courts (borgrätt) when royal servants and officials were investigated. They were put together ad hoc, by the authorization of the king, and the panel of judges could include leading royal officials, Councillors of the Realm, higher officers and representatives of the town administration.30 In addition, King Charles IX had made an attempt to establish a court of appeal (Hoffrettegång) already in 1604, but this never materialized for political reasons. There may have been resistance to the plan because the first royal proposal would have introduced judicial torture into the law.31 The medieval structures and institutions for royal supreme justice had partly fallen into desuetude, partly been replaced by the extended Council of the Realm. Since the Council of the Realm supplemented by ad hoc judges was not a tribunal authorized by the medieval Laws of the Realm, consented to by the Swedish Estates as the law required, it was criticized by the Estates.

Rådets i Westergötland förhandlingar åren, 1540–1542, in: C. G. Styffe (ed.), Handlingar rörande Skandinaviens historia, 29, Stockholm, 1848, pp. 83–159. 29  E.  g., Instruction of Erik XIV for crown officials during his absence from Stockholm during a military campaign, 1 Nov. 1563, in: Handlingar rörande Skandinaviens historia, 27, Stockholm, 1845, pp. 22–24; Carl Silfverstolpe (ed.), Konung Erik XIV:s nämnds dombok, Historiska handlingar, 13:1, Stockholm, 1884; Jerker Rosén, Studier kring Erik XIV:s höga nämnd, Skrifter utgivna av Kungl. Humanistiska Vetenskapssamfundet i Lund, 51, Lund, 1955, esp. pp. 37–64. 30  Daniel Almqvist, Om konungsdomarna på Stockholms rådhus, 1592–1595, in: Historisk Tidskrift, 60, 1940, pp. 31–43; Göran Setterkrans, Karl IX:s högsta domstol, in: Scandia, 28, 1962, pp. 374–389 at 387–388. 31  F. A. Dahlgren (ed.), Lagförslag i Carl den Niondes tid, Handlingar Rörande Sveriges historia, 2nd series, Stockholm, 1864, pp. 551–568.

314

M. Korpiola

(a) The Court of Appeal as an instrument of centralisation and harmonisation In the early 1600s, there were no single standardized versions of the medieval laws circulating in Sweden. For the towns, King Magnus Eriksson’s mid-fourteenth century Town Law was used. For the countryside, however, two versions of the law were applied. The Law of King Magnus Eriksson from about 1348–1349 had been updated by the version of King Christopher of Bavaria from 1442. Yet, only during the second half of the sixteenth century did the 1442 version start to become more common. It is believed that this may have been the result of active measures of the central administration in spreading the latter.32 Moreover, as the laws had not been printed, they only existed as manuscripts with various additions which meant that no two legal codices were identical. As even the judges were usually laymen without any formal legal training – university or professional – legal practice varied markedly. Already before the Svea Court had been established, the Swedish monarchs had attempted to reform the medieval Swedish laws. However, the last attempt in the early 1600s failed for political reasons. Therefore, the government had the Town Law and the 1442 law for the countryside (as well as some older provincial laws that had less legal relevance) printed – the 1442 law in 1608 and the Town Law in 1619 – so that these would make authoritative standard versions of the laws. After steps to unify the law, legal practice came next. As the Svea Court of Appeal was to act as the appellate court for the whole Swedish realm, and did in fact do so from 1614–1623, it would little by little harmonise legal practice. By the late seventeenth century, the Court had started to collect certain of its leading or important cases, precedents, in both criminal and civil cases although it was unclear to what extent it considered itself bound by them in its practice. Yet, they were occasionally referred to in the deliberations of the judges.33

32  Patrik Åström, Senmedeltida svenska lagböcker: 136 lands- och stadslagshands­ krifter: dateringar och dateringsproblem, Acta Universitatis Stockholmiensis, 32, Stockholm, 2003, p. 177. 33  E. g., Mia Korpiola, ‘The Fall and Restoration of Elin Tönnesdotter’: Land, Noble Property Strategies and the Law in Early Seventeenth-Century Sweden, in: Anu Korhonen/Kate Lowe (eds.), The Trouble with Ribs: Women, Men and Gender in Early Modern Europe, COLLeGIUM: Studies across Disciplines in the Humanities and Social Sciences, 2, 2007, pp. 153–179 at 175–176. Available online at ­https://helda.helsinki.fi/bitstream/handle/10138/25757/002_09_korpiola.pdf?sequence =1.



The Svea Court of Appeal315

Ever since its establishment, the Court referred to the king any cases in which it was uncertain how the law was to be applied. For example, in 1615, King Gustav II Adolf gave an answer to various questions involving a range of issues of substantive law and jurisdiction which the existing norms did not clearly define.34 This practice continued increasingly in the seventeenth century. When more courts of appeal had been established, in many cases the monarch addressed letters on some point of the interpretation of the law or the harmonisation of legal practice to all courts of appeal. For example, the Schmedeman collection contains twenty royal letters to courts of appeal in the year 1699 alone. Seven of these were addressed to all courts of appeal, and those responding to a question from or practice of a particular court were more often addressed to the Svea Court of Appeal (six letters) than any other of its sister courts.35 Exercising their privilege as supreme judges of the Realm, the monarchs issued edicts clarifying and resolving jurisdictional uncertainties when being consulted by the courts of appeal. Different monarchs had diverging opinions regarding the binding character of the Law of God and the Bible, for example.36 Even closer negotiations were necessary at times. In 1640, the Regency government (regency 1632–1644) of Queen Christina (r. 1632–1654) organized a council (rådplägning) together with the presidents and some members of the Svea, Åbo and Göta Courts of Appeal, to resolve many unclear points regarding the interpretation of law.37 Some years later, when a law commission was appointed to draft what after more than half a century of work was to become the Code of 1734, officials of the courts of appeal were to be influential members of the commission.38 The monarch could also canvass the opinions of the courts of appeal in particular cases of difficulty.39

34  Explanation of Gustav II Adolf on legal questions by the Svea Court of Appeal, 23 June 1615, in: Schmedeman (ed.), Kongl. stadgar, pp. 163–165. 35  Schmedeman (ed.), Kongl. stadgar, pp. 1534–1565: three were addressed to ‘Court of Appeal N.N.’ (one of which probably to Turku), three to the Göta Court and one to Dorpat. 36  Birger Wedberg, Karl XII på justitietronen: Rättshistorisk-biografisk studie, Stockholm, 1944, pp. 310–313. 37  C. T. Odhner, Sveriges inre historia under drottning Christinas förmyndare, Stockholm, 1865, p. 97. 38  Heikki Ylikangas, Suomalaisen Sven Leijonmarckin osuus vuoden 1734 lain naimiskaaren laadinnassa: kaaren tärkeimpien säännöstöjen muokkautuminen, 1689– 1694, Historiallisia tutkimuksia, 71, Helsinki, 1967, pp. 18–19, 28–31; A. Anjou, Kongl. Svea hovrätts presidenter samt embets- och tjenstemän, 1614–1898, Eksjö, 1899, pp. 68–70, 81–82, 226. 39  David Nehrman, Inledning Til Then Swenska Processum Civilem: Efter Swe­ riges Rikes Lag och Stadgar författad, Stockholm, Upsala, 1751, p. 77.

316

M. Korpiola

In addition, the Svea Court had been granted even more potent means for monitoring the work of the lower courts by the 1614 Ordinance. Namely, all the lower courts were to send their court records yearly to the Svea Court for inspection. Its officials were to go through these records and, if necessary, judges had to explain why and on what grounds a certain verdict had been reached. The judges or officials could be impeached if they were suspected of any form of corruption, malfeasance or incompetence. If judges or courts failed to send the records to Stockholm on time by the nominated day, they were fined.40 Later, the trainees of the Svea Court were also made to participate in the examining of the lower court records.41 This revision of the practice of the lower courts had a precedent in 1563, when King Erik XIV had made a short-lived attempt to monitor the lower courts of the countryside. He had ordered that all district judges (häradshövding) were to deliver their ‘true, clear and unforged court records’ for annual inspection on pain of permanent forfeiture of their office.42 The Svea Court was also adamant that the lower courts had to adjudicate strictly according to the law. Leniency and discretion belonged to the Svea Court – or the king’s own high person – while the lower courts had to note the relevant circumstances, adjudicate by the book, and leave the rest to the competent authorities. This was especially so in criminal cases which will be discussed in more detail below. 2. The jurisdiction of the Svea Court of Appeal and its development Although I have chosen to use the present-day name, Svea Court of Appeal, for the court, its tasks were in fact more multi-faceted than merely acting as an appellate court. The main norms defining the scope of the jurisdiction and activities of the Court, the Rättegångs-Ordinantie, the Ordinance of Judicial Procedure, and the Rättegångs-Process, the Procedural Rules for the Court of Appeal, were given in 1614–1615.43 The tasks of the Court and its jurisdiction then remained rather constant during the period although its geographical jurisdiction shrunk peacemeal as new courts of appeal were established. 1614, in: Schmedeman (ed.), Kongl. stadgar, p. 139. Utbildning till statens tjänst, p. 57. 42  Instruction of Erik XIV for crown officials during his absence from Stockholm during war, 1 Nov. 1563, in: Handlingar rörande Skandinaviens historia, 27, p. 27: schole alle häredtzhöfdinger åhrligen lefrere in vthi hög:te Kongl. Mtz Cammer wisse klare och oförfalschede domböker så frampt the wele icke ombäre och misste häredtzhöffdinge dömer etc. och thet aldrig igen bekomme. 43  RO 1614, in: Schmedeman (ed.), Kongl. stadgar, pp. 133–141; RP 1615, Schme­ deman (ed.), Kongl. stadgar, pp. 143–163. 40  RO

41  Gaunt,



The Svea Court of Appeal317

One of the major outcomes of the establishment of the Court was the cementing of an instance order (i. e. a jurisdictional hierarchy defining competence at first instance and appeal) in Sweden. While it had existed in theory before, it had not been followed in practice as occasionally litigants initiated their cases at any level which suited them, or sometimes even took their cases directly to the king. Now, the Svea Court started to accept appeals only when the case had been tried at the proper lower courts and their sentence had been received, unless cases came to it as first instance cases by virtue of legal privileges. However, even though the Svea Court was permanent, it heard cases mainly during its two annual law terms or ‘judicial sessions’, i. e., May-July and September-November. Still, the Court was to have judges on call even outside the law terms all year round for urgent business and criminal cases. Later, the number of cases was such that the terms were extended.44 Thus, in the seventeenth century, the instance order became as the figure below demonstrates: King (benefit of revision)

Court of Appeal

Town Courts

Lagman's Courts

Kemner's Courts

District Courts

Fig. 1: Swedish Court System after 1614

44  RO 1614, in: Schmedeman (ed.), Kongl. stadgar, p. 141: from 1 May to 29 June (ifrån Walburgis och intil Petri Pauli) and 8 September to 11 November (ifrån mårmesso in til Martini); Petrén, Hovrättens uppbyggnad, 1614–1654, pp. 50–51; Jägerskiöld, Hovrätten under den karolinska tiden, pp. 239–243.

318

M. Korpiola

(a) Providing justice to all subjects of the king, high and low alike Acting as an appellate court was one of the main tasks of the Svea Court. The Court was authorized to pass judgment in all cases which formerly had been adjudicated by the ‘king’s jury’ (Konungens Nämbd) at various medieval royal inquisitorial investigations and provincial assemblies (Räfst, Rättare Ting, Landz-Ting).45 The Court was to give its definitive sentence (ändtlighen slijtas) in all lawfully appealed or wagered46 cases from Sweden proper, Finland, Estonia and Tallinn. In the appellate cases coming from Finland and Sweden, the interest of the case had to be at least 50 dalers, while the minimum interest in cases coming from the wealthy capital of Stockholm was 100 dalers.47 Whether this pecuniary interest was high enough or not was disputed in some cases in which wager had been refused by the lower instance court. For example, in the case of Jacob Balie (James Baley, a Scot) against Hinrich Jankin, the Court asked the Town Court of Stockholm why Balie had been denied the appeal (Beneficium Appellationis). The Town Court defended its actions by referring to the interest in the case as 81 Polish guldens did not amount to the required 100 dalers. However, Balie pointed out that he also demanded almost 900 dalers as damages. As the Svea Court was to refer the matter to the king, the Town Court was required to give its reasoning (Rationes) for denying the appeal in writing. King Gustav II ­Adolf ruled in favour of Balie in the further hearings.48 As one of the paramount concerns when establishing the new court was to portray the king as a source of justice and good governance, it was important to demonstrate that the grievances of the people were being addressed. The new court was a means of providing justice to the common man. Therefore, if a person could demonstrate that he or she had been denied justice by a lower court (justitia denegata), the case had been unduly delayed, or the judges were partial, the case could be investigated and adjudicated by the Court and unjust officials could be punished in due course.49 1615, in: Schmedeman (ed.), Kongl. stadgar, p. 156. Swedish appeal system was archaic as it was based on a wager of law (vad). The court – i. e., the judge and possibly also the jury (nämnd) who were to know the law and judge rightly – became parties against the person appealing against the decision. After the sentence, the plaintiff or defendant could wager against the judge or jury, while the district judge could also wager against the lagman, the superior judge, if he did not confirm the decision of the first instance court. There was a monetary bet involved in the legal wager. The person wagering against a judge or a jury had to place a bet, while the judge or jury wagered against placed a sum that was double the amount of the bet. Thus, the court became in a way a party to the appeal. See Chapter on Procedure 37–39, Ulkuniemi (ed.), Kuningas Kristoferin maanlaki, 1442, pp. 118–119. 47  RP 1615, in: Schmedeman (ed.), Kongl. stadgar, pp. 155–156. 48  E. g., RA, SHA, E VI a 2 aa, Liber causarum 28. 45  RP

46  The



The Svea Court of Appeal319

One such instance from the first year of the Svea Court of Appeal put Gustav II Adolf’s powerful Chancellor, Count Axel Oxenstierna (1583– 1654), at loggerheads with the Court and its President, Count Magnus Brahe (1564–1633), Drots of the Realm. The Court was hearing a case from the province of Norrland. Oxenstierna had been summoned to the Svea Court because he was the lagman of Norrland – albeit that his deputy had heard the case in question. Oxenstierna, obviously piqued, told the Court not to illicitly encroach upon his authority (förgrijpa sigh i hans mÿndigheet). As there had been no wager against the sentence of the lagman’s court as the Ordinance of 1614 required, Oxenstierna denied that the case belonged to the jurisdiction of the Svea Court, He ‘kindly requested that the wellborn lords and good men who sit on the tribunal would remember it and bear it in mind’.50 Brahe was not the man to take kindly to such criticism of the Court’s competence, amounting to a snub from his much younger peer. Just as haughtily, he told Oxenstierna that the Court remembered very well what was stated in the 1614 Ordinance as well as in the Rules (of 1615 that had not been officially confirmed, yet).51 As the litigant had claimed that he had not had justice, the Court was within its power to investigate the case as authorized by the king.52 While one may hesitate to equate the establishment of the Swedish courts of appeal with the establishment of a Justiz-Staat (Einführung des JustizStaats),53 a state under the rule of law, which would seem to be a more modern phenomenon, there is no doubt that the justice aspect was important for the Svea Court of Appeal and the ruler.54 On the other hand, the Court had the right to refuse all cases that did not pertain to its jurisdiction – classically for example appeals in cases in which a lower court had not yet given its verdict. However, it was expressly forbidden to snub supplicants and send them away haughtily, ‘especially if they perhaps even happened to be so simple that they were ignorant of how matters were to proceed according to the law’. Instead, 1615, in: Schmedeman (ed.), Kongl. stadgar, p. 156. SHA, A I a 1:1 (Renskrivna protokoll 1614, Court records 1614), 18 Oct. 1614, f. 130r: [A]lldenstund han der emoot inthet laghligit waadh hafuer kastadt: Och refererede han sigh inn opå Rättegångz Ordinantien, at inge saker äghe heller böre här opptaghes, Vthan dhe som Laghligen här Vnder wadde äre, och wenligen begärede att dhe Welborne Herrer och godhe Männ som i Rätten såtho, wille sigh sådant ihåghkomma och till minnes låte gå. 51  RA, SHA, A I a 1:1, 18 Oct. 1614, f. 130r–130v: the sigh nogsampt wette där opå (130v) ihughkomma, huad i Rättegångz Ordinantien förmällt står, så wäll som vthi Rättegångz processen … . 52  Article 10, RO 1614, in: Schmedeman (ed.), Kongl. stadgar, p. 137. See also, RA, SHA, E I:1a, Authorization of the king to the Court of Appeal, 16 Feb. 1614. 53  Modéer, Oberste Gerichtsbarkeit, p. 192. 54  Jägerskiöld, Hovrätten under den karolinska tiden, pp. 315–317. 49  RP

50  RA,

320

M. Korpiola

the Court was to inform the supplicant calmly and with good grace of how the matter was to be handled and in every way help people to enforce their rights so that nobody could complain that they were denied justice (klaga sigh Rätt­ lösan). The Court had especially to correspond with lower courts and judges in the towns and the countryside, as well as ‘all others’ so that supplicants would be helped in their rights according to the law.55 All this demonstrates that the establishment of the Svea Court of Appeal was also an important royal public relations exercise demonstrating the king’s good governance and administration of justice to all his subjects, poor and rich alike. King Gustav II Adolf was frequently absent overseas for war; in fact, between 1621 and 1632 he was in Sweden only half of the time. Consequently, he issued several instructions authorizing the division of labour in his absence, while the Council of the Realm took care of the day-to-day governance.56 For example, the instructions of 1621 divided the complaints of the common people between the Court of Appeal, the Treasury (Cammaren) and the provincial governors (Ståtthållerne) – obviously depending on the main grievance of the supplicant. Thus, all ‘justice-related matters’ (justicien vedkommer) were delegated to the Court, while the Council of the Realm was to help the Court in all matters ‘so that it may fully perform its tasks and administer justice ex æquo’ (må hafva sin fulle gångh och justicien ex æquo administreret).57 Thus formulated, the Svea Court of Appeal was empowered to take care of a large proportion of the tasks of central administration in the absence of the royal head of state. This also corresponds with the evidence of the day-to-day activities of the Court in 1614 based on its outgoing correspondence and records.58 The 1634 Instrument of Government defined the jurisdiction of the courts of appeal rather curtly. All cases that were to be directly adjudicated by the king or were wagered there were to come to them and they were to ‘give the king’s verdict’ (dömer … konungens dom) and to oversee all the court records of the lower courts.59 Nevertheless, the eighteenth-century Instru55  RP 1615, Schmedeman (ed.), Kongl. stadgar, pp. 156–157: Så skole the lijkwäl icke affwisa någon snöpligen ifrån sigh, I synnerheet the ther, til äfwentyrs, äre så enfaldige at the icke weta huru medh alle Saker lagligen skal förfaras. 56  Edén, Den svenska centralregeringens utveckling, pp. 128–136. 57  Instructions for the Council of the Realm during the king’s absence abroad (1621, 1622), N. A. Kullberg (ed.), Svenska riksrådets protokoll I, 1621–1629, Hand­ lingar rörande Sveriges historia, 3rd series, Stockholm, Kongl. Riks-archivet, 1878, pp. iv–v, vii. 58  Korpiola, A Safe Haven in the Shadow of War?, in: Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period, pp. 55–108. 59  § 7, Instrument of Government (29 July 1634), Hildebrand (ed.), Sveriges regeringsformer, 1623–1809, p. 8.



The Svea Court of Appeal321

ments of Governance portrayed the courts of appeal as showcases of the king’s justice and good governance. Their appellate functions were not mentioned at all. Instead, the constitutional texts have long eulogies of the role of the courts of appeal as guarantors of the rule of law to the common people: that ‘law and justice’ followed the written law and statutes of Sweden without distortion, that they monitor the lower courts and the executive powers, that they punish severely all cases of incompetence or corruption that caused miscarriages of justice and that no undue delays or costs hindered access to justice.60 (b) The Svea Court and crime As far as criminal cases went, all lèse-majesté cases (Crimina læsæ Majestatis) belonged to the first-instance jurisdiction of the Svea Court of Appeal, as the kings came to reserve the fate of all persons accused of lèsemajesté for themselves. Even in the patrimonial royal duchies (discussed below in more detail), treason towards the king had been ruled to be outside their jurisdiction as such crimes were reserved to be tried by the king alone.61 Later in the seventeenth century the king ordered that all duelling cases were to be adjudicated by the courts of appeal after local examination by the provincial governors, and after 1738, by the local judges.62 The appeal of criminal cases was basically forbidden.63 However, all crimes that could result in the death penalty (halssaker) had to be deferred from the lower courts to the Court of Appeal to be reviewed. Yet, if the heinous crimes were definitely proved by confession and due and diligent investigation, the criminal could be executed without delay as a timely deterrent for others. The 1614 Ordinance listed as such crimes: incest in the first and second degrees of kinship, bestiality, rape, infanticide, murder, highway rob60  § 18, Instrument of Government (21 Feb. 1719), § 23, Instrument of Government (2 May 1720), § 15, Instrument of Government (21 Aug. 1772), Hildebrand (ed.), Sveriges regeringsformer, 1623–1809, pp. 70–71, 99–101, 126–127. RP 1615, Schmedeman (ed.), Kongl. stadgar, p. 156. 61  RP 1615, Schmedeman (ed.), Kongl. stadgar, p. 156; Statute of Örebro of 1617, in: Schmedeman (ed.), Kongl. stadgar, pp. 170–171. On the practice of the Svea Court of Appeal in certain types of lèse-majesté, see Per Nilsén, Slandering the King and His Councillors: The Svea Court of Appeal and Judicial Practice, 1614–1700, in: Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period, pp. 201–216. 62  Nehrman, Inledning Til Then Swenska Processum Civilem, p. 70. 63  E. g., Heikki Pihlajamäki, ‘At synd och laster icke skall bli ostraffade’: straff­ rättsligt appellationsförbud i svensk rättshistoria, in: J. Kekkonen/P. Letto-Vanamo/ P. Paasto/H. Pihlajamäki (eds.), Norden, rätten, historia: Festskrift till Lars Björne, Suomalaisen lakimiesyhdistyksen julkaisuja, vol. E:11, Helsinki, 2004, pp. 65–99.

322

M. Korpiola

bery and homicide involving a breach of the peace of the home or ambush on the road to church or law court.64 However, in practice it seems to have been unclear when the death penalty was so obviously justified that immediate execution was permissible. For example, in 1614, the official Jesper Jönsson was questioned at the Court about why he had had a homicide executed without authorization. The official explained that he had asked Count Magnus Brahe, president of the Court, about this when the latter had passed through the town of Enköping. Brahe had promised an answer from the Court within eight days, but this had been forgotten. The suitably remorseful Jesper Jönsson was dismissed with a caution.65 Thus, the Swedish system had a three-step filter of death penalties. Basically, in clear-cut and confessed cases, execution could take place immediately and only if there were special circumstances was referral to the Court of Appeal required. These norms were interpreted so that the Court could also alter the punishment and mitigate the rigors of the law if there were extenuating circumstances.66 At the next level, the court of appeal could mitigate the sentence or confirm it, while the king as the supreme judge would review the case if the court of appeal considered that there were special circumstances. In a small sample of death penalties from the Göta Court 1635–1644, a third of the condemned were executed without referral to the Court of Appeal, which reviewed the rest. The research of Rudolf Thunander on the Göta Court shows that of the criminal cases in his study, the Court considered that extraordinary circumstances merited the consideration of the monarch in only about six per cent of the referred cases. As Thunander has pointed out, the courts of appeal were key institutions in mitigating the law. ‘[I]n reality, the courts of appeal had the role of the highest instance in criminal cases’.67 Thus, Thunander’s statistics confirm the view expressed in Johan Stienhöök’s (1596–1675) De jure Sveonum et Gothorum vetusto (1672) that the courts of appeal (iudiciis aulicis) resolved most of the criminal cases.68 1614, in: Schmedeman (ed.), Kongl. stadgar, p. 140. Nov. 1614, Riksarkivet, Svea Hovrätt, 42 Huvudarkivet, A Protokoll och föredragningslistor, I Egentliga protokoll, a Protokoll i civila mål, 1 Renskrivna protokoll 1614–1950, 1 1614 19/-11/11, f. 194v. 66  Rudolf Thunander, Hovrätt i funktion: Göta hovrätt och brottmålen, 1635– 1699, Rättshistoriskt bibliotek, 49, Stockholm, 1993, p. 185. 67  Thunander, Hovrätt i funktion, pp. 14–15, 278–281, citation on p. 278. 68  Stiernhöök, De jure Sveonum et Gothorum vetusto, pp. 42–43: causæ [orig. omnes, but corrected in the errata section at the end of the book] pleræque criminales resolvuntur. 64  RO 65  4



The Svea Court of Appeal323

Yet, both the Ordinance of Judicial Procedure of 1614 and the Procedural Rules for the Court of Appeal Ordinance of 1615 had left it unclear what the Court’s competences in criminal cases referred to it were. The nexus of the Court and the king in reviewing criminal cases required clarification over many years. The 1634 Instrument of Government (Sw. regeringsform) laid down that the court of appeal was to give its opinion in cases of death penalties. The role of the court was more important in the absence of the king than during his stay in the country (konungens när- som frånvaru). When the king was in residence the court was to present him with its opinion and its reasoning.69 In 1636, even the Göta Court of Appeal had to undergo its own rounds of clarifications regarding what cases to refer or not to the monarch.70 Nevertheless, time and time again in the seventeenth century, the kings were regularly corresponding with the courts of appeal about which criminal cases they could decide and which they needed to refer to the king’s final decision.71 However, when the Court referred a case to the king, it had to present to him its own resolution with its reasons for mitigating the rigours of the law.72 (c) The Court of Appeal as the privileged court of the nobility The Svea Court of Appeal became the forum privilegiatum of the Swedish nobility, and this privilege was expanded in stages. The Ordinance of Judicial Procedure of 1614 granted noblemen the privilege that if they were accused of a crime for which they could lose their ‘life, honour, privileges, estates or hereditary rights’, they would only be sentenced (anamma Sentens och Doom) by the Court of Appeal. Nevertheless, the examination of the crime would be conducted at the local court, with the local judges (judge and a twelve-man nämnd or jury in the countryside and the magistrates in towns). After this investigation, the accused and the examination records would be 69  § 7, Instrument of Government (29 July 1634), Hildebrand (ed.), Sveriges regeringsformer 1623–1809, p. 8. 70  Thunander, Hovrätt i funktion, p. 185. 71  E. g., King Charles XI to the Svea Court of Appeal, 7 May 1690, Schmedeman (ed.), Kongl. stadgar, pp. 1271–1272. King Charles XI to the Göta Court of Appeal, 14 June 1688, Schmedeman (ed.), Kongl. stadgar, pp. 1208–1209; Petrén, Hovrättens uppbyggnad, 1614–1654, pp. 36–43; Jägerskiöld, Hovrätten under den karolinska tiden, pp. 274–284; Gunnar Bendz, Om hovrätterna från deras uppkomst till 1734 års lag, in: Minnesskrift ägnad 1734 års lag av jurister i Sverige och Finland den 13 december 1934 200-årsdagen av Riksens ständers beslut 1, Stockholm, 1934, pp. 938– 957 at 945–947. 72  E. g., King Charles XI to the Svea Court of Appeal, 19 July 1689, Schmedeman (ed.), Kongl. stadgar, pp. 1209–1210.

324

M. Korpiola

sent to the Court of Appeal for sentencing.73 The 1614 Ordinance also granted that all disputes about division of inheritance or landed property involving nobles were to be heard at the Court. But the privilege was not allencompassing: all cases involving fields, pasture, forests, fishing rights, debts, mischief, damages or defamation (Injurier) to which a nobleman was a party would be heard and sentenced at local courts. Moreover, for noblemen in military service, the Articles of War and military courts would apply.74 However, later expansions of the privileges of the nobility could and did widen the scope of these freedoms, since the 1615 Procedural Rules for the Court of Appeal referred both to the 1614 Ordinance and the privileges of the nobility.75 It would seem that these reservations were later disappearing, in the spirit of the principle suum cuique tribuere, understood as meaning that noblemen could only be judged by their peers. For example, the privileges of the nobility of 1617 granted that noblemen would not be obliged to stand trial for crimes punishable with a death penalty in front of ‘lesser men than their equals’ (för mindre män än theras wederlijker). In addition, the nobility was also awarded the privilegium fori in certain civil disputes, guardianship, wills and bankruptcy, later in the century.76 The courts of appeal were both hearing and sentencing an increasing number and a wider array of cases involving the nobility. Even the Council of the Realm, authorized by the king in his absence to exercise the prerogative of pardon, evidently considered its powers restricted by the privileges of the nobility. Therefore, in the case of an impoverished nobleman who, after being sentenced to death, had been awaiting a final verdict in a dungeon at the Castle of Uppsala for two years, the Council would not decide on whether he should be pardoned or executed. Instead, he had to await the king’s own resolution (förklaring).77

1614, in: Schmedeman (ed.), Kongl. stadgar, p. 138. 1614, in: Schmedeman (ed.), Kongl. stadgar, pp. 138–139. 75  RP 1615, in: Schmedeman (ed.), Kongl. stadgar, p. 156. 76  § 16, Privileges of the Nobility, 8 Oct. 1617, in: Schmedeman (ed.), Kongl. stadgar, pp. 173–181 at 176; Jägerskiöld, Hovrätten under den karolinska tiden, p. 226. See also Elsa Trolle Önnerfors, Suum cuique tribuere – Give to Each His Own: Court Cases Involving Swedish Nobility in the Svea Court of Appeal, 1650– 1690, in: Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period, pp. 163–200. 77  21 July 1632, N. A. Kullberg (ed.), Svenska riksrådets protokoll II, 1630–1632, Handlingar rörande Sveriges historia, 3rd series, Stockholm, 1880, p. 179: effter Sena­ ten ingen resolution om sådanne frälsses män och priviligerade[!] personer hade, skulle kan sittja till H. K. M:tz egen förklaring. 73  RO 74  RO



The Svea Court of Appeal325

Whether bishops were considered equals to noblemen and awarded the forum privilegiatum of courts of appeal was disputed in the Council of the Realm in 1632.78 Later in the century, bishops, superintendents, doctors of theology and professors were declared equals to noblemen in a number of royal letters.79 If certain high-ranking officials such as judges were accused by the Crown Prosecutor (Advokat Fiskal), the cases belonged to the courts of appeal.80 The Svea Court of Appeal and its judges were never subject to such inquisitions as its sister court in Jönköping. In 1773, suspicions of venality had been raised against some of the Göta judges. King Gustav III authorized an investigation led by the Attorney General (justitiekansler). A special revision of the Court’s records took place over several months. As a result, the king and his Justitierevision condemned four assessors of the Göta Court to be deposed and the vice-president as well as three judges to be suspended from office for their misconduct.81 In 1699, King Charles XII (r. 1697–1718) abolished the privilegium fori of the nobility in the sense that noblemen were only examined, not sentenced, in the lower courts in the case of serious crimes (Criminelle mål, Högmålssaker). The king explained this by referring to his concern that law and justice should reign and his subjects be given justice without delay, and that the privilege had caused disorder and postponements.82 The privilegium fori not only prevented noblemen from being punished for their misdeeds as they deserved, but also burdened the courts of appeal, as the criminal noblemen used the legal system to delay the course of justice. The king took the view that no criminals should benefit from or be protected by privileges which they were unworthy to enjoy. An exception was made for lèse-majesté and other cases in which the courts of appeal were the only proper fora.83 Nevertheless, after the new distribution of power following the death of King Charles XII during the so-called Age of Liberty,84 the Instruments of Gov78  21 July 1632, Kullberg (ed.), Svenska riksrådets protokoll II, pp. 234, 240– 241: whether this was to be a rule or exceptional is unclear. 79  Carl Fr. Rothlieb (ed.), Samling af kongl. författningar angående rang, Stockholm, 1855, pp. 9–10. 80  Nehrman, Inledning Til Then Swenska Processum Civilem, p. 72. 81  Bendz, Göta hovrätt, pp. 212–214. For a detailed account, see Kenneth Awebro, Gustaf III:s räfst med ämbetsmännen 1772–1779: aktionerna mot landshövdingarna och Göta hovrätt, Studia Historica Upsalensia, 96, Uppsala, 1977. 82  King Charles XII to the courts of appeal, 7 Aug. 1699, in: Schmedeman (ed.), Kongl. stadgar, pp. 1554–1555: Then nådige omsorg Wij altid drage at lag och rätt­ wisan owäldigt må handteras & samt Wåre trogne Undersåtare ske enahanda och skyndsam rätt. 83  Ibid., p. 1555. 84  In Sweden, the so-called Age of Liberty (frihetstiden) began in 1718 when King Charles XII died in the middle of the Great Northern war. The war had been

326

M. Korpiola

ernance of 1719, 1720 and 1772 reinstated these noble privileges: noblemen accused of any crime regarding life or honour were to be sentenced at the Court of Appeal. However, the investigation was to take place locally (in loco) and all lesser crimes were to be adjudicated at the normal first instance courts, not at the Court of Appeal as a forum privilegiatum.85 The 1614 Ordinance also insisted that the Svea Court of Appeal sentence all cases involving the University of Uppsala (Upsala Academia) that were not decided by the University itself as part of its autonomy guaranteed by its privileges.86 In addition, the monarch could appoint the Court to adjudicate in any case he or she wished after deliberation.87 The monarch could equally allow a change of forum in certain individual cases, for example, if both parties accepted this.88 (d) The Court of Appeal and the benefit of revision When the Svea Court of Appeal was established in 1614, the exact nexus of the king’s supreme judicial powers and those of the new court were left vague. The 1614 Ordinance stated that the sentences of the Court were to be final and irrevocable. Nobody was to appeal against them.89 King Gustav II Adolf reiterated this in the Procedural Rules for the Court of Appeal: ‘we have greatly been concerned that the Supremum judicium, a quo non est appellatio, which the law book of Sweden calls the King’s Judgment, should become enforced and applied again’.90 This is why appeal against the royal court of appeal was not allowed. However, what became possible was the so-called beneficium revisionis, an extraordinary remedy that depended on unpopular and it had impoverished the nation. As a result, the Estates of Sweden reduced considerably the powers of the coming monarchs, until they were hardly more than figureheads. The power was in the hands of the Parliament, i. e., the Estates at the Diet. Party politics, foreign interference and corruption followed, until the new King Gustav III seized back much of the former royal powers in a coup d’état in 1772. 85  § 18, Instrument of Government (21 Feb. 1719), § 23, Instrument of Government (2 May 1720), § 15, Instrument of Government (21 Aug. 1772), in: Hildebrand (ed.), Sveriges regeringsformer, 1623–1809, pp. 70, 99, 126; Privileges of the Nobility (1723), in: R. G. Modée (ed.), Utdrag Utur alle ifrån den 7. Decemb. 1718 utkomne Publique Handlingar, Placater, Förordningar, Resolutioner Och Publicationer, etc. 1: til år 1730, Stockholm, 1742, pp. 464–465. 86  RP 1615, in: Schmedeman (ed.), Kongl. stadgar, p. 156. 87  RP 1615, in: Schmedeman (ed.), Kongl. stadgar, p. 156. 88  Wedberg, Karl XII på justitietronen, p. 310. 89  RO 1614, in: Schmedeman (ed.), Kongl. stadgar, p. 136. 90  RP 1615, in: Schmedeman (ed.), Kongl. stadgar, p. 143.



The Svea Court of Appeal327

the king’s goodwill.91 Indeed, revision was not always granted to the supplicant.92 The benefit of revision was a costly service that could be ‘humbly petitioned’ from the king by the petitioner who had to pay the considerable sum of two hundred dalers for it regardless of whether or not the king confirmed or altered the sentence of the court of appeal.93 Later, however, revision could be had at a reduced price or gratis if the supplicant could prove his or her poverty.94 During his absence abroad, King Gustav II Adolf referred cases in which the royal beneficium revisionis was requested to his Council of the Realm to investigate and ‘take ad revidendum’.95 The practice was continued by the Regency Government after King Gustav II Adolf had been killed at the battle of Lützen, adjudicating in the name of the child-queen. With kings on the Continent in wars and with long regencies of child-monarchs, the beneficium revisionis started to evolve during the latter half of the seventeenth century into a sort of Supreme Court, distinct from the Svea Court of Appeal, known as the Justitierevision and inferior only to the king’s own high person. In 1647, special officials of the Royal Chancery were nominated to prepare cases of law for revision, and the Chancery Ordinance (kansliordning) of 1651 named two special ‘revision secretaries’ (revisionssekreterare). However, as King Karl X Gustav (r. 1654–1660) spent a large part of his reign in Poland and Denmark as commander-in-chief of the Swedish army, revision causes piled up considerably. The Drots of the Realm claimed that it would take three years to be rid of the backlog, and that certain members of the Council of the Realm were to be nominated for the task. Otherwise, if the task was to be tackled collectively, several Chancellors would try to shrink from ‘the donkey’s work and toil that justice requires’ (ett sådant åsnearbete och ledsamt verk, som vid justitien är).96 91  Whether or not the revision was the result of a power struggle between the king and the Court of Appeal, ending in favour of King Gustav II Adolf, has been disputed among researchers for decades. 92  Petrén, Hovrättens uppbyggnad, 1614–1654, pp. 1–117 at 26. 93  RP 1615, in: Schmedeman (ed.), Kongl. stadgar, p. 161. 94  E. g., King Charles XI to the courts of appeal, 14 March 1690, in: Schmedeman (ed.), Kongl. stadgar, pp. 1267–1268. 95  E. g., 15. Sept. 1627, 1. Oct. 1627, Kullberg (ed.), Svenska riksrådets protokoll I, 1621–1629, pp. 50–53, 57; 4–5 Nov. 1631 and 10. Dec. 1631, Kullberg (ed.), Svenska riksrådets protokoll II, 1630–1631, pp. 122–125, 129. See also more generally, Petrén, Hovrättens uppbyggnad, 1614–1654, pp. 22–36. 96  Chancery ordinance of 1651 in: Styffe (ed.), Samling af instructioner, pp. 323– 324; C. Georg Starbäck/P. O. Bäckström, Berättelser ur svenska historien, 6: Carl X Gustaf, Carl XI, Stockholm, 1886, p. 544.

328

M. Korpiola

By the Chancery Ordinance of 1661, the activity of the Justitierevision was regulated: the Chancellor of the Realm together with a number of appointed Councillors of the Realm and officials of the Chancery were to handle revision cases on every Wednesday.97 In 1662 and 1666, revision was further regulated externally by statutes,98 while internal revision practices were further defined by the Chancery instructions of 1663 and 1669. Thus, the temporary provisions for managing the backlog of revision causes developed first into the so-called ‘revision chancery’ (revisionskansliet) and then it became ‘His Royal Majesty’s Lower Justitierevision’ (kongl. maj:ts nedre justitie-revision).99 In practice, the king discussed the revision cases, their circumstances and the interpretation of the law together with the Councillors of the Realm before making his decision. Occasionally, the king could grant the councillors a free hand to adjudicate the case according to their conscience.100 Even if the Justitierevision had become more firmly organized, it was not considered an independent instance. As David Nehrman (nob. Ehrenstråhle, 1695–1769), the towering Swedish eighteenth-century jurist, wrote in his book on civil procedure in 1751: ‘[t]his Justitiæ Revision is not an Instantia, … but only a Revisio Actorum’.101 The courts of appeal were still considered the top of the official court hierarchy and to be the supreme courts.102 That the decision of the court of appeal was final has already been discussed for criminal cases, but the same also applies to civil cases as the statistics of Elsa Trolle Önnerfors demonstrate. The Svea Court of Appeal heard 169 testamentary causes in 1640–1690, but only 40 of these went on to the Justi­ tierevision.103 Thus, the decision of the Court was final in more than 75 per cent of causes. The revision practice continued largely along these lines until the late eighteenth century. In 1789, the so-called Act of Union and Security (Före­ 97  Chancery ordinance of 1661 in: Styffe (ed.), Samling af instructioner, p. 352; Starbäck/Bäckström, Berättelser ur svenska historien, 6, p. 544. 98  28 June 1662, Placat angående Revision öfwer Justitiæ Sakerna and 29 Nov. 1666 (Royal Statute on revision): Schmedeman (ed.), Kongl. stadgar, pp. 321–324, 469–470. 99  Starbäck/Bäckström, Berättelser ur svenska historien, 6, p. 544. 100  Edén, Den svenska centralregeringens utveckling, pp. 251–253; Wedberg, Karl XII på justitietronen, pp. 7–21, passim. 101  Nehrman, Inledning Til Then Swenska Processum Civilem, p. 63: [t]henna Justitiæ Revision ej är någon Instantia, eller formerad Rätt, utan allenast en Revisio Actorum. 102  Nehrman, Inledning Til Then Swenska Processum Civilem, p. 65: Kongl. Maj:ts och Riksens Hofrätter äro nu förtiden the högsta Domstolar. 103  Trolle Önnerfors, Justitia et Prudentia, p. 57.



The Svea Court of Appeal329

nings- och säkerhetsakt), a controversial constitutional act granting the king autocratic powers and vehemently opposed by the nobility, first established the ‘King’s Supreme Court’ (konungens högsta domstol). The Supreme Court, in detail regulated by the royal decree in May 1789, was to adjudicate all the cases belonging to the Justitierevision. It was to be manned half by nobles and half by commoners, while the king had two votes.104 3. The nexus of the Svea Court of Appeal to other courts, the Council of the Realm and the Parliament When the Svea Court of Appeal was established, it was first and foremost to replace the former patchy range of superior tribunals, some of which, but not all, had been mentioned in the 1442 law. As a result of the establishment of the Court, the position of these former superior courts diminished. The lagman’s courts were largely reduced to second instance appellate courts in the countryside, basically summoned every three years.105 The medieval provincial legal assemblies (landsting) and the royal correctional assizes (räfsteting) had partly fallen into disarray already in the early 1600s, which had been one of the complaints of the Estates of the Realm and the Council of the Realm in 1611 leading to the establishment of the Svea Court of Appeal.106 As these courts were no longer mentioned in the 1614 Ordinance, it may be supposed that the new royal court of appeal was meant to replace them. Both of these courts were convened at intervals of some years and the lagman (or his deputy or substitute) was on circuit locally. Thus, medieval and local superior courts were on the decline as the government favoured a central sedentary institution that was available in the capital. This benefited the king, but hardly the litigants who had to travel to the capital at considerable expense. Moreover, as Stockholm was relatively far from many provinces, effective control of the local judiciary and administration was not yet achieved. As already mentioned above, in the sixteenth century, the Council of the Realm, consisting of leading aristocrats, had to some extent become an appellate court in practice. For example, just before the Svea Court of Appeal 104  § 2, Act of Union and Security (21 Feb. and 3 April 1789), Hildebrand (ed.), Sveriges regeringsformer, 1623–1809, p. 146. 105  Odhner, Sveriges inre historia, p. 178. 106  The proposition (framställning) of the Estates and the Council of the Realm on the King’s assurance (konungaförsäkran), 19 Dec. 1611, Svenska riksdagsakter, Svenska riksdagsakter jämte andra handlingar som höra till statsförfattningens historia, 1. series, vol. 2:1, ed. Nils Ahnlund, Stockholm, 1932, pp. 62–64.

330

M. Korpiola

was established, the extended Council of the Realm with supplementary members nominated by the king, had acted as an appellate court receiving appeals, for example, from the Town Court of Stockholm.107 However, the way these tribunals were organised was neither fixed by nor based on law. The King and the Estates had jointly established the Svea Court by the Ordinance of Judicial Procedure of 1614. This ordinance and the Procedural Rules for the Court of Appeal of 1615 formed the basis of its jurisdiction, and they were referred to as compelling and authoritative norms in the correspondence and sentences of the court.108 Thus, the Court relied on the written norms with royal and parliamentary authority instead of custom and long practice. This corresponds with what has been observed of Swedish ‘proto-legalism’ in earlier research.109 In general, it would seem fair to say that in Sweden jurisdictional conflicts hardly abounded in the first years of the Svea Court of Appeal. While the early modern Castilian court system has been described as having ‘an array of law courts and legal tribunals so bewildering that lawsuits regularly became lost in a confused jurisdictional morass’,110 by comparison, early modern Sweden had a much simpler court system. Moreover, the court hierarchy was defined by the 1614 and 1615 norms. Thus, there were fewer possibilities for forum-shopping even if there were some special courts, such as military courts, outside the ordinary court structure. Yet, by using the denegatio justitiae argument, litigants could turn to the Court before exhausting the ordinary remedies and the court hierarchy. However, an appeal was only possible after the inferior court had given its sentence. There seem to have been no special procedures for transferring cases from one jurisdiction to another. Rather, any jurisdictional conflict was resolved very pragmatically. If there was doubt about the proper forum or jurisdictional conflict had arisen, the court referred the matter to the king to decide.111 107  E.  g., 17 Feb. 1613, Nils Staf (ed.), Stockholms stads tänkeböcker från år 1592, 7, Stockholm, 1964, p. 238. 108  See also Mia Korpiola, Ratio decidendi in Seventeenth-Century Sweden: The Practice of the Svea Court of Appeal in a Comparative Perspective, unpublished presentation at the 20th British Legal History Conference, Cambridge, 16 July 2011. 109  Heikki Pihlajamäki, Legalism before the Legality Principle? Royal Statutes and Early Modern Swedish Criminal Law, in: G. Martyn/A. Musson/H. Pihlajamäki (eds.), From the Judge’s Arbitrium to the Legality Principle: Legislation as a Source of Law in Criminal Trials, Berlin, 2012, pp. 169–188. 110  Henry L. Kagan, Lawsuits and Litigants in Castile, 1500–1700, Chapel Hill, 1981, p. 32. 111  E. g., King Charles XI to the Svea Court of Appeal, 4 June 1689, Schmedeman (ed.), Kongl. stadgar, p. 1241; King Charles XI to the Svea Court of Appeal, 7 May 1690, Schmedeman (ed.), Kongl. stadgar, pp. 1271–1272.



The Svea Court of Appeal331

As several members of the Council of the Realm still sat as judges of the Svea Court of Appeal, with the Drots of the Realm as its president, the relationship of the two institutions continued to be close. The Court was considered and treated as one of the five Boards (Collegia), i. e. the central ministries, of the Realm. All of them sat in Stockholm, and the Svea Court of Appeal was to report yearly to the king together with the other Boards in or around February. By contrast, the three other courts of appeal reported together in the summer.112 Nevertheless, jurisdictional disputes occurred occasionally and some of them involved Councillors of the Realm. One such dispute between a councillor and another important official was heard at the Svea Court but with two especially legally knowledgeable councillors following the case at the Court. However, when in 1672, the councillor lost the case at the Court and was sentenced to deposition from his office as överståthållare,113 the Council of the Realm decided to contest the jurisdiction of the Court in the case. The outcome was that the Svea Court of Appeal was ordered to deliver the files of the cause to the Council where they were burnt. However, later, during the royal autocracy, the authority of the Council of the Realm was reduced in favour of the king.114 Another question was how to arrange jurisdiction in new causes. After the 1669 Maritime Law (sjölag), there was debate whether maritime cases and cases involving bills of exchange would be dealt with in the Court or at the Board of Commerce (kommerskollegium). The long breaks between the law terms of the Court were mentioned as a reason for granting the jurisdiction to the Board of Commerce.115 However, even these cases came under the courts of appeal in the eighteenth century.116 For the nobility, officers and non-commissioned officers as well as for common soldiers, the military courts (krigzrätt) of the army and navy also formed a separate judicial system under their own Board (Collegium) in the central administration. However, the judiciary of the military were not yet on a very professional basis in the 1630s, while the naval courts were consid112  § 14, 38–39, Instrument of Government (29 July 1634), Hildebrand (ed.), Sveriges regeringsformer, 1623–1809, pp. 13, 39–40. See also the article by Mia Korpiola, Swedish Court under Scrutiny: The Inspection of the Svea Court of Appeal in 1636, in: Ignacio Czeguhn/José Antonio López Nevot/Antonio Sánchez Aranda (eds.), Control of Supreme Courts in Early Modern Europe, Berlin, 2018, pp. 95–115. 113  Literally translated as ‘Over-Governor’, the highest official of Stockholm after 1634. 114  Jägerskiöld, Hovrätten under den karolinska tiden, pp. 317–319. 115  Jägerskiöld, Hovrätten under den karolinska tiden, pp. 229–231, 242. 116  Nehrman, Inledning Til Then Swenska Processum Civilem, p. 76.

332

M. Korpiola

ered to be alarmingly incompetent. Moreover, the 1636 inspection of the Admiralty revealed that its naval courts had infringed on the jurisdiction of ordinary courts by adjudicating both civil and criminal cases ‘that did not pertain to Forum Ammiralitatis’. Military courts did not refer their capital cases to the Court of Appeal, but directly to the king.117 Fiscal cases or the revenues of the Crown did not pertain to the jurisdiction of the courts of appeal, but the Royal Treasury (Kammarkollegium), while cases involving mining pertained to the Board of Mining (Bergskollegiet).118 The Svea Court of Appeal generally argued against special jurisdictions using the expression: ‘Multiplicatio jurisdictionum is a pabulum confusionis’.119 (a) The Svea Court of Appeal and ecclesiastical courts The statutes and documents establishing the Svea Court of Appeal did not mention its nexus to ecclesiastical courts. In general, competencies of the ecclesiastical jurisdiction vis-à-vis the secular courts had not been clearly defined after the Reformation. The king had become the supreme head of the Lutheran church, and ultimately, he decided – again quite pragmatically ad hoc – whether a matter belonged to the secular or ecclesiastical courts. Questions related to the interpretation of ecclesiastical law or dispensations from it were ultimately in the hands of the monarch.120 As the courts of appeal, even consistories occasionally referred their most difficult cases to the king. For example, King Charles XII wrote in 1699 to the Consistories of Västerås and Narva in response to their queries on the interpretation of the law.121 Before the Reformation, the Swedish king – like secular rulers all over Christendom – had been at the top of the secular court hierarchy, while the pope was at the top of the Church hierarchy. This changed after the onset of the Reformation. The Swedish Lutheran Church was late in delineating its 117  See, e. g., King Gustav II Adolf’s authorization to Marshal Jakob de La Gardie to organise a court martial (krigzrätt) in Stockholm and preside over it, 5 June 1630, in: Edén, Den svenska centralregeringens utveckling, pp. 351–353; Rådsprotokoller angående Collegiernas redogörelse inför Kongl. Regeringen, in Handlingar Rörande Skandinaviens Historia, 33, Stockholm, 1852, pp. 196–197, 230–233, 262–267, 275–281. 118  Nehrman, Inledning Til Then Swenska Processum Civilem, pp. 74–75. 119  Jägerskiöld, Hovrätten under den karolinska tiden, p. 230. 120  For examples see, e. g., Mia Korpiola, Lutheran Marriage Law in Sixteenthand Early Seventeenth-Century Sweden: Authorities and Sources of Law, in: W. De­ cock/J. J. Ballor/M. Germann/L. Waelkens (eds.), Law and Religion: The Legal Teachings of the Catholic and Protestant Reformations, Refo500 Academic Studies, vol. 20, Göttingen, 2014, pp. 107–132 at 120–123. 121  King Charles XII to the Consistory of Västerås, 10 Oct. 1699 and 14 Oct. 1699, in: Schmedeman (ed.), Kongl. stadgar, pp. 1558, 1560.



The Svea Court of Appeal333

dogma, but as far as power structures and economic matters were concerned, these were quickly brought under royal control. The clergy also lost its privileged status (privilegium clericale) of being exempt from royal justice and only being tried in ecclesiastical courts under canon law. In 1527, at the socalled ‘Reformation Diet’, the Estates of the Swedish Realm enacted legislation that put an end to the financial and political independence of the Church.122 The scope of ecclesiastical jurisdiction had not been precisely defined before the Reformation, and this remained unaltered. The king became the supreme judge in both ecclesiastical and secular causes in his Realm, and he was within his powers to transfer matters to the secular jurisdiction that had earlier pertained to church courts. For example, according to the socalled Ordinance of Västerås of 1527, bishops and ecclesiastical authorities were to account to the king for all fines and money paid as penance. Moreover, the king was to take the fines for any sexual crimes.123 In practice, around the year 1600 ecclesiastical courts dealt with matters related to ecclesiastical offices, the discipline of the clergy or students, matrimonial causes, legitimacy, the ecclesiastical discipline aspect of various breaches of the ten precepts such as sexual crime, homicide, heresy, breaches of the Sabbath, disorderly behaviour in church and cases involving tithes and funerals. The Svea Court of Appeal also requested from the cathedral chapters (episcopal consistories) the provision of expert statements in matters related to the ecclesiastical core competencies, e. g. validity of marriage and legitimacy, in cases that belonged to its jurisdiction (e.  g. inheritance disputes).124 As the boundaries of the ecclesiastical jurisdiction were not defined in law, this left the church courts open to encroachment from royal courts. Even generally speaking, the extent of the ecclesiastical jurisdiction was rather diminishing than expanding as time went by. The Svea Court of Appeal had several jurisdictional disputes with the Consistory of Stockholm from the 1650s on.125 Consequently, the boundaries were redefined. In 1684, in answer to a query from the Svea Court, King Karl XI (r. 1660–1697) resolved that secular courts were to adjudicate in matters related to the burials of executed criminals, inheritance matters, guardianship and wills regarding the 122  For an overview of the Swedish Reformation in English, see James L. Larson, Reforming the North: The Kingdoms and Churches of Scandinavia, 1520–1545, Cambridge, 2010, pp. 227–266. 123  Ordinance of Västerås (1527), Stiernman (ed.), Alla Riksdagars och Mötens Besluth, pp. 90–92 at 90–91. 124  E. g., RA, SHA, E VI a 2 aa, Liber causarum 24; RA, SHA, E VI a 2 aa, Liber causarum 19. See also Wedberg, Karl XII på justitietronen, pp. 77–78, 80. 125  Jägerskiöld, Hovrätten under den karolinska tiden, pp. 232–234.

334

M. Korpiola

children of clergymen, disputes regarding pews and burial places in chur­ ches, disorder, disturbances or fights in church or the churchyard as well as oaths and breaches of the Sabbath. The king justified this by the desire for a better order and to prevent confusion of jurisdictions (til hwars och ens så mycket bättre rättelse och at hindra irrningar uti Jurisdictiorne). The clergy and the chapters were forbidden thereafter to take up such causes.126 The Church Law of 1686 completed the cropping of ecclesiastical jurisdiction, and for example, it defined the jurisdiction between the secular and ecclesiastical courts in various matrimonial causes.127 Nevertheless, it may be observed that ever since its establishment, the Svea Court of Appeal had ruled, amongst other things, on the burial of dead criminals when asked to do so from the local level.128 (b) The Svea Court of Appeal vis-à-vis ducal courts of appeal and patrimonial courts When the Svea Court of Appeal as the royal Court of Appeal (Konungzlige Hoffrätt) was founded, its status vis-à-vis the two ducal courts of appeal (Furstlige Hoffrätter) had to be defined. Duke Johan of East Gothia (Sw. Östgötaland, 1589–1618), cousin of King Gustav II Adolf, and the king’s younger brother Prince Karl Filip, Duke of Södermanland (1601–1622), had both been granted extensive legal and jurisdictional privileges in their dominions. During his minority, the lands of Duke Karl Filip were being administered by his mother, Queen Dowager Christina of Holstein-Gottorp (1573–1625), as his guardian.129 The position of the royal Dukes caused some tough negotiations before the Ordinance of 1614 establishing the Svea Court of Appeal was accepted by all parties concerned. However, this privilege was not extended to either of the Dowager Queens130 or their households even if the case came up in court.131 In the beginning, there was some May 1684, Schmedeman (ed.), Kongl. stadgar, p. 864. Chapter (On Engagement and Marriage), Kircko-Laki Ja Ordningi 1686, L.-I. Hellemaa/A. Jussila/M. Parvio (eds.), Suomalaisen kirjallisuuden seuran toimituksia, 444, Helsinki, 1986, pp. 21–22. 128  E. g., RA, SHA, A I a 1:1, 16 June 1614, f. 34r. 129  Folke Lindberg, Hertig Johan av Östergötland och hans furstendöme, in: Historisk Tidskrift, 61, 1941, pp. 113–149 at 117–118, 122–123, 138–139. 130  In addition to the Dowager Queen Christina of Holstein-Gottorp, Dowager Queen Katarina Stenbock (1535–1621), widow of King Gustav I Vasa, had dower lands and a household of her own. 131  See, e. g., Marko Lamberg, The Tale of Two Courts in One Town: The Relationship between the Stockholm Town Court and the Svea Court of Appeal, 1614– 1624, in: Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period, pp. 109–130 at 119–121. 126  5

127  XV



The Svea Court of Appeal335

tension about which court of appeal would be competent to judge in cases of disputes involving officials in the households of various members of the royal family.132 In 1614, for example, the Court had to remind Dowager Queen Christina that her subordinates and servants were not exempt from the jurisdiction of the Court and thus they had to appear before it.133 In the Ordinance of 1614 the relationship of the royal court with the ducal appellate courts was defined. The role of the new royal appellate court was highlighted by observing that no courts were to be excluded (inge vndantagandes) from being under the Svea Court – this probably referred to situations such as privileges forbidding appeals (privilegium de non appellando). Furthermore, the position of the Svea Court of Appeal was strengthened by a prohibition which meant that its decisions could not be challenged, but that only an extraordinary remedy in the form of the benefit of revision was possible.134 In accordance with the wording of the Ordinance, the forum rei sitae principle was applied so that in a matter involving the nobility and landed property, if the land was situated in the duchy, the dispute went to the ducal court of appeal, if in the kingdom, to the royal court of appeal.135 Yet, it was stressed that the royal court of appeal was the supreme court of all appeals whether from the ducal courts of appeal, the lagman’s courts and town courts in the royal lands, the Council (Landzrådh) of Estonia and the mayor and council of the towns of Tallinn and Narva.136 The city of Riga in present-day Latvia, conquered by the Swedes in 1621, was added to the jurisdiction of the Svea Court, and it was not transferred to the jurisdiction of the Court of Dorpat after its establishment.137 This ensured the independence of Riga vis-à-vis the Livonian nobility, but required more knowledge of Roman and German law in the Court of Appeal.138 Nearly nothing is known of the activities of the two ducal courts of appeal. It would seem that the establishment of the Svea Court triggered the formalization and regulation of the ducal courts of appeal. The ducal court of appeal of East Gothia seems earlier to have been put together on a more ad hoc basis – like the king’s high court before the establishment of the Svea Court of Appeal, with members from the ducal council, judges and officials as well as members of town courts (mayors and burghers). However, its also Lamberg, The Tale of Two Courts in One Town, pp. 119–121. SHA, B I a:1, 14 Sept. 1614, f. 39v–40r. 134  RO 1614, Schmedeman (ed.), Kongl. stadgar, p. 138. 135  RO 1614, Schmedeman (ed.), Kongl. stadgar, p. 138. 136  RO 1614, Schmedeman (ed.), Kongl. stadgar, p. 138. 137  Anna Christina Meurling, Svenska domstolsförvaltning i Livland, 1634–1700, Bibliotheca historica Lundensis, 19, Lund, 1967, pp. 43–44, 48. 138  Petrén, Hovrättens uppbyggnad, 1614–1654, p. 68. 132  See

133  RA,

336

M. Korpiola

functioning was not perceived to be on a sufficiently professional level, as a particular appellate case from the ducal to the royal court of appeal showed. The Svea Court reproached the ducal court in this case for deficiencies in its proceedings and protocols which had to remedied before the Svea Court could consider the appeal. Moreover, Duke Johan himself had to give a special explanation of the sentence.139 Probably after this humiliation, the duke considered it necessary to arrange his court along more professional standards in accordance with the more contemporary model of the Svea Court. He used the Svea Ordinance of 1614 as his model when confirming the ordinance of his ducal court of appeal in 1618.140 Already in the summer of 1614, the Svea Court referred a property case between several noblemen to the ducal court of appeal of East Gothia (then Furstelige Hoffrätt) before it could be appealed to Stockholm.141 As with the Duchy of East Gothia, the Court of Appeal already accepted supplications from the Duchy of Södermanland in 1614. The Court of Appeal of the Duchy of Södermanland (Hoffrätten vthi Sudermanland), managed during the minority of Prince Karl Filip by his mother, dealt with disputes involving immovable property of the nobility, situated in the Duchy as already discussed above. Nevertheless, the Svea Court of Appeal presupposed that the proper instances within the duchies should first be exhausted before accepting appeals. Yet, the royal court of appeal could return cases to the lower instances in the duchy if a procedural error had occurred.142 However, the ducal courts were short-lived as they disappeared in 1618 (ducal court of appeal of East Gothia) and 1622 (ducal court of appeal of Södermanland) when both the royal Dukes died without legitimate issue, and the duchies reverted to the Crown. However, the question of jurisdiction resurfaced to some extent during the seventeenth century when some more patrimonial courts were established. The lord of the territory was allowed to collect the fines and nominate the deputy judge (lagläsare). In practice, the judge was often the same as in the nearby royal jurisdictions. The fief-holder could also come to an agreement with the Crown that people living on his or her domains would be subject to the ordinary royal court. In some parishes, a double court system existed: patrimonial courts for tenants and ordinary district courts for the rest of the population.143 These courts were, however, almost without exception under 139  Lindberg,

Hertig Johan av Östergötland, pp. 123–124. Hertig Johan av Östergötland, p. 123. 141  RA, SHA, A I a 1:1, 7 June 1614, f. 29r. 142  RA, SHA, B I a:1, 17 Sept. and 4 Nov. 1614, f. 44r–44v, 63r–63v. 143  Mauno Jokipii, Suomen kreivi- ja vapaaherrakunnat 2, Historiallisia tutkimuksia, 48:2, Helsinki, 1960, pp. 32–68; Lars-Olof Larsson, Borgrätt och adelsjurisdik140  Lindberg,



The Svea Court of Appeal337

the same rules as the ordinary local courts: they had to refer death sentences to the Court of Appeal and send the court records yearly for inspection there and also to the fief-holder.144 Some aristocrats proved unwilling to send the patrimonial court’s record book for its annual inspection in the courts of appeal, like Count Per Brahe the Younger (1602–1680) in 1641 – at the time already the president of the Svea Court of Appeal. The matter was finally resolved in 1655 by the next monarch, King Charles X Gustav. He declared that ‘all iudices primæ et secundæ instantiæ that were situated under the king … – even Count and Barons – were obliged to have the court records sent [for inspection] unless they could show such special privileges exempting them thereof’.145 In the end, patrimonial courts and the jurisdictional questions regarding them were a short-lived phenomenon. Almost all such courts were abolished in 1680 in the so-called Great Reduction, the repossession of Crown lands (Sw. reduktionen), while the last survivers – a handful of courts with allegedly medieval origins – were abolished in 1691.146 (c) The Svea Court of Appeal and later royal courts of appeal Within a decade, the Svea Court of Appeal had demonstrated its usefulness in managing its many tasks. Indeed, the establishment of new courts of appeal to multiply the appellate court model was a sign that the Svea Court had proved a useful instrument to extend the control of the Crown. Consequently, the Court of Appeal for Finland was founded in Turku (Åbo) in 1623, Dorpat (Tartu in present-day Estonia) for the recently acquired Livonian province in the Baltic Region in 1630 and the Göta Court of Appeal (in Jönköping) for Southern Sweden (Gothia) in 1634. A court of appeal was also established in Greifswald in 1655 for the German territories conquered in the Thirty Years’ War (1618–1648). In the eighteenth century, only one more court of appeal was established when the jurisdiction of the Turku Court was divided in half, and a new court for Northern Finland was founded in Vaasa (Vasa) in 1776.147 tion i medeltidens och 1600-talets Sverige, in: Historia och samhälle: Studier tillägnade Jerker Rosén, Malmö, 1975, pp. 49–67. 144  Thunander, Hovrätt i funktion, p. 21; Pihlajamäki, The Court of Appeal as Legal Transfer, pp. 248–252; Jokipii, Suomen kreivi- ja vapaaherrakunnat 2, pp. 58– 59. 145  Bendz, Göta hovrätt, pp. 147–148. 146  Nehrman, Inledning Til Then Swenska Processum Civilem, p. 41. 147  For the Turku court, see especially K. R. Melander, Drag ur Åbo hovrätts äldre historia och ur rättslivet i Finland under förra hälften av 1600-talet, Juridiska föreningens i Finland publikationsserie, 3, Helsingfors, 1936; for Dorpat, see Meurling, Svenska domstolsförvaltning i Livland, 1634–1700, pp. 43–122; Pihlajamäki, The

338

M. Korpiola

However, even after the establishment of the Göta Court in 1634, the Svea Court continued to call itself ‘the Royal Court of Appeal of Sweden’.148 The territorial jurisdiction of these courts was extended and curtailed depending on the territorial expansions and losses in the Swedish wars during the period. However, when the Göta Court was established, it was felt necessary to ask the Regency Council whether Värmland would be situated in its jurisdiction or that of the Svea Court. The Regency Council answered in the name of the Queen in 1636 that it was to be part of the jurisdiction of the Göta Court for geographical and historical reasons.149 With the establishment of new appellate courts in other provinces, shorter distances made the king’s high justice more accessible to the ordinary people and made the execution of sentences more expedient. As the 1634 Instrument of Government put it, ‘[t]he Realm is so big and vast, separated by waters and sand, that the subjects and inhabitants cannot without hindrance and trouble seek justice in [only] one locality and therefore often suffer injustice because of poverty and other exertion’. Consequently, four courts of appeal had to be established.150 As Finland was for practical purposes separated from Sweden for several months a year when the sailing season was over from late autumn to early spring, there was a special need to have a firmer hold of the country and make the central administration more effective there. The need to provide better access to justice for the people was especially cited in 1623 in the royal authorization of the Turku (Sw. Åbo) Court of Appeal as the long journeys and great expense for the people were mentioned. These onerous circumstances forced many people in effect to forfeit their lawful rights.151 Court of Appeal as Legal Transfer, pp. 217–260; and for Göta, see, Bendz, Göta hovrätt and Thunander, Hovrätt i funktion. For the later Vaasa court, see Iisa Vepsä, Oikeuden hakijat: tutkimus Vaasan hovioikeuden perustamisesta ja varhaisesta toiminnasta, Suomalainen Lakimiesyhdistyksen julkaisuja, A-sarja, 294, Helsinki, 2009. On the Swedish negotiations for a privilegium de non appellando for its German territories and the Court of Appeal in Greifswald, see, e. g., Kjell Å Modéer, Gerichtsbarkeiten der schwedischen Krone im deutschen Rechtstorritorium. 1: Voraussetzungen und Aufbau, 1630–1657, Rättshistoriskt bibliotek, 24, Stockholm, 1975, esp. pp. 254–286; Pawel Gut, Das Hofgericht in Greifswald in schwedischer und preußi­ scher Zeit, in: N. Jörn/B. Diestelkamp/K. Å. Modéer (eds.), Integration durch Recht: Das Wismarer Tribunal (1653–1806), Cologne, 2003, p. 157. 148  Petrén, Hovrättens uppbyggnad, 1614–1654, pp. 44–45. The Turku Court of Appeal was known as the Court of Appeal of Finland. 149  Bendz, Göta hovrätt, pp. 97–98. 150  § 8, Instrument of Government (29 July 1634), Hildebrand (ed.), Sveriges regeringsformer 1623–1809, pp. 8–9. 151  Authorization for the Turku Court of Appeal, 15 June 1623, Schmedeman (ed.), Kongl. stadgar, pp. 218–219.



The Svea Court of Appeal339

A similar reasoning, including the shortening of the distance to the tribunal, thus providing justice more effectively to the people, was also mentioned in 1634 when the Göta Court of Appeal was established in Jönköping.152 The territorial jurisdiction of the various courts of appeal was defined in the royal decrees establishing each court and in the 1634 Instrument of Government. When the second court of appeal was established in Turku, the Svea Court transferred its cases dealing with property situated in or involving parties residing in Finland to Turku. For example, in a case from 1622 in which a goldsmith’s apprentice accused two apprentices living in Turku of slander, the cause was referred to the Turku Court of Appeal.153 Similarly, a criminal case involving noblemen – captain Johan von Nieroth accused Abraham Ille of killing his brother Henning in 1623 – that had come up in the Svea Court of Appeal in 1624 was immediately transferred to Turku as the crime had taken place there. Apparently, during an evening of heavy drinking at their sister-in-law’s manor of Karuna in Finland, the residence of their unsavory brother Bertil von Nieroth, Ille had shot Henning von Nieroth dead with a musket.154 While the courts of appeal were theoretically identical, as has been pointed out, the mere location of the new courts in the provinces prevented them from having a similar relationship with the king as the Svea Court. Thus, they became more clearly instances subordinated to the king.155 This having been said, each court of appeal assumed a distinct character depending on the province in which it was situated. While the litigants of Vaasa were mainly peasants, the peasantry was largely unable to access the Court of Appeal of Dorpat.156 For the Svea Court of Appeal, research has demonstrated that cases from the capital or involving noble litigants were clearly overrepresented at the end of the seventeenth century.157 Thus, the Svea Court adjudicated especially in disputes of the urban population, the noble or the wealthy, and it probably had to take care of some of the most complex legal cases in the Realm. 152  Fullmackt för Jönkiöpingz Hoff-Rätt, 5 Nov. 1623, Schmedeman (ed.), Kongl. stadgar, pp. 220–221. 153  Riksarkivet, Svea Hovrätt, Huvudarkivet, E VI a 2 aa, Liber Causarum 37. 154  Riksarkivet, Svea Hovrätt, Huvudarkivet, E VI a 2 aa, Liber Causarum 37. On Abraham Ille and the von Nieroth family, see Jully Ramsay, Frälsesläkter i Finland intill stora ofreden, Helsingfors, 1909–1916, pp. 205, 299. 155  Edén, Den svenska centralregeringens utveckling, p. 255. 156  Mia Korpiola, Preface, in Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period, pp. 14–22 at 19–20. See also Pihlajamäki, The Court of Appeal as Legal Transfer, p. 256; Vepsä, Oikeuden hakijat, p. 223. 157  Maria Ågren, Att hävda sin rätt: Synen på jordägandet i 1600-talets Sverige, speglad i institutet urminnes hävd, Rättshistoriskt bibliotek, 57, Stockholm, 1997, p. 59; Trolle Önnerfors, Suum cuique tribuere, p. 176.

340

M. Korpiola

Even with the establishment of new courts of appeal, the superior status of the Svea Court was upheld. By virtue of royal authorization, it had the exclusive jurisdiction in certain difficult causes such as cases involving banks and financial establishments (‘Banco twister’).158 It was mentioned as the ‘first and highest-ranking in space and status’ (förste och förnembste af rum och anseende). While the presidents of all of the courts of appeal were to be aristocratic members of the Council of the Realm, only the Svea Court had its judges divided into three categories so that the first class consisted of members of the Council of the Realm. The other appellate courts had only two classes: ordinary noblemen and learned and skilled commoners.159 This distinction not only increased the status of the Svea Court by making it more aristocratic, but also created a closer nexus there between the monarchy and governing elite. Its greater political role and its prominent part in the central government probably also contributed to the fact that royal favour may have been more relevant for the nomination of the judges in the Svea Court than in some other courts of appeal.160 The Svea Court of Appeal also attracted more highranking and noble trainees than the Göta Court. Moreover, the chances of its former trainees being ennobled were better at the Svea Court.161 The higher status of the Svea Court is also exemplified in the fact that its vice-president was mentioned before the vice-presidents of the other courts of appeal in the Ordinance of Rank (rangordning) of 1680. In the Ordinance of Rank of 1714, the status of the vice-president of the Svea Court was emphasized further by placing him one class above his equals in the Göta, Turku and Dorpat Courts.162 (d) Political and extraordinary crimes: Estates as judges, special commissions and the court of the realm The Svea Court of Appeal was basically a sedentary court residing in Stockholm, but during some years in the 1620s, it was ordered to have its sessions in certain other towns.163 In the winter of 1630–1631, the Court of 158  Nehrman,

Inledning Til Then Swenska Processum Civilem, p. 74. Instrument of Government (29 July 1634), Hildebrand (ed.), Sveriges regeringsformer, 1623–1809, p. 9. 160  Vasara-Aaltonen, From Well-travelled ‘Jacks-of-all-trades’ to Domestic Lawyers, pp. 332–335. 161  Gaunt, Utbildning till statens tjänst, pp. 104–123. 162  Ordinance of Rank, in: Schmedeman (ed.), Kongl. stadgar, pp. 720–721; Rothlieb (ed.), Samling af kongl. författningar angående rang. 163  Edén, Den svenska centralregeringens utveckling, p. 265. 159  § 8,



The Svea Court of Appeal341

Appeal, together with the royal central administration, had fled from the pest-infected capital to the relative security of Uppsala. The Court returned to Stockholm at the end of January 1631.164 In response to the dissatisfaction of the king with the lack of efficiency of the Court, the judges were divided in 1688 into two sections in order to make its work more effective.165 However, even the Svea Court could send its judges to the provinces to hear local land disputes, to investigate local misdoings and to hear the local population if it would have been impractical to cite the witnesses to come to Stockholm.166 In addition to ordinary tribunals, extraordinary tribunals or special commissions could be installed and used to investigate special offences or sent to the provinces. Special commissions were authorized by the Instrument of Governance from 1634. If a person of very eminent birth needed to be tried or a matter touching the King or Crown was so weighty (högt ärende) that it could not be tried except by convening the Estates, in lieu of the Estates a special court representing them was to be convened. It was to be presided over by the Drots of the Realm and be comprised of the courts of appeal, the other Councillors of the Realm, the provincial governors and the mayors of the major towns of Sweden.167 If an assessor of one of the Boards was suspected of a crime, he was to be tried by a panel of fifteen judges, three from each Board including the ‘five high officials’ (Drots, Marshal, Admiral, Chancellor, Treasurer), i. e. leading officials of the central government. But if a whole Board or one of the five high officials were suspected of a crime, the king alone was to adjudicate the case.168 This was altered by the constitution of 1772. If a member of the Council of the Realm or another person of eminent birth or a whole Board were guilty of a crime involving the Crown and the persons could not be tried in a court of appeal or the Council of the Realm, a special ‘Court of the Realm’ (rikets rätt) was to be installed. This court would consist of the leading officers and highest state officials, including all the presidents and the four oldest judges of each of the courts of appeal. The Attorney General (justitiecantsler) was always to act as the prosecutor (acJan. 1631, Kullberg (ed.), Svenska riksrådets protokoll II, 1630–1632, p. 51. Hovrätten under den karolinska tiden, pp. 249–258. 166  E. g., RA, SHA, B I a:1, 5 July 1614, f. 21r–21v; 10 July 1614, ibid., f. 24v–25r. 167  § 9, Instrument of Government (29 July 1634), Hildebrand (ed.), Sveriges regeringsformer, 1623–1809, p. 10; Rudolf Kjellén, Riksrättsinstitutets utbildning i Sveriges historia. Skrifter utgifna af Humanistiska Vetenskapssamfundet i Upsala, 4:1, Upsala, 1895, pp. 89–104. 168  § 41, Instrument of Government (29 July 1634), Hildebrand (ed.), Sveriges regeringsformer 1623–1809, p. 30. 164  14

165  Jägerskiöld,

342

M. Korpiola

tor), while the king could still use his prerogative of pardon after the sentence.169 Special commissions were used for various types of investigations. A commission consisting of members of the Council of Realm and assessors of the Board (Collegium) of Justice, i. e. the Svea Court of Appeal, was appointed to try Sten Axelsson Lewenhaupt (1586–1645), Count of Raseborg, whose continuous residence abroad resulted in his neglecting his duties to his country and the Crown. In 1636, the commission judged Lewenhaupt’s county of Raseborg to be forfeited and awarded it to his nephew instead.170 Another example, in 1642, was when a large tangle of embezzlement and malfeasance of the crown’s funds was unearthed in the Treasury (Kammarkollegium). When the actions of Treasurer (kamrerare) Jost Hansson Falken­ stierna, who had been ennobled less than two years previously for his services to the Crown, came under suspicion, the investigation was first carried out by the Treasury and then the Council of the Realm. Finally, a special tribunal consisting of two members of each Board or ministry (kollegium) and the leading officials of the Treasury was nominated to try Falkenstierna and many other implicated officials. After an apparently swift and effective examination and trial, the court found Falkenstierna guilty of various forms of wrong-doing that had gone on for more than a decade. Consequently, he was condemned to death and decapitated in Stockholm in the summer of 1642.171 In the field of criminal law, the witchcraft commissions (trolldomskommissioner) of the 1660–1670s were some of the most notorious ad hoc commissions. As the Svea Court had started to receive many death sentences for witchcraft for review, its president Per Brahe called for caution, worrying that the craze would spread and engulf whole provinces, as had happened abroad. As a consequence, the first witchcraft commission was appointed in 1669. These series of ad hoc commissions, consisting of provincial governors, noblemen, judges and members of the clerical estate, were nominated by the king to investigate and sentence in some outbreaks of the witch craze in various provinces. Yet, the special commissions did not curb the witchcraft hysteria – partly because the commission’s majority votes tended to favour the death penalty.172 169  § 16, Instrument of Government (21 Aug. 1772), Hildebrand (ed.), Sveriges regeringsformer 1623–1809, p. 128. 170  Odhner, Sveriges inre historia, p. 142; Kullberg (ed.), Svenska riksrådets protokoll I, 1621–1629, p. 152–153, fn. 2. 171  Odhner, Sveriges inre historia, pp. 106–107; Bengt Hildebrand, Falkenstierna, släkten, in: Svenskt biografiskt lexikon, 15, Stockholm, 1956, pp. 254–257 at 255. 172  Bengt Ankarloo, Trolldomsprocesserna i Sverige, Rättshistoriskt Bibliotek, 17, Stockholm, 1984, esp. pp. 119–149, 154–165, 190–214.



The Svea Court of Appeal343

As has been mentioned above, the courts of appeal were the first-instance courts for all cases of lèse-majesté. Yet, there were other institutions for investigating and adjudicating political crimes that had a longer history as fora for state trials. Rudolf Kjellén considers the Diet of Stockholm of 1517 as the event that ‘inaugurated the activity of the Swedish parliament (riksdag) as a court of law’ in a case of treason. The whole parliament also sat as judges when King Erik XIV was deposed and condemned in 1569.173 In the early 1600s, King Charles IX had been using large panels of judges for legitimating political trials. In an attempt to create an impression that the hearings were fair and impartial, the judges could be extremely numerous, like the 274 men of all the Estates in 1605.174 Such panels can be considered more or less as trials by parliament as they involved the representatives of the four Estates of the Realm. When appointing the panel, Charles IX exhorted the Estates and Council of the Realm to consider all the evidence and to reach a just verdict without any consideration or fear of the king’s person. The judges were freed from their oath of obedience for the duration of the trial, while the crown prosecutor (Rijckzens Fijskall) acted as accuser. The accused were allowed to refuse any judge perceived to be biased against them. The entire panel of judges took the judge’s oath on the salvation of their soul, swearing to base the sentence on the law of Sweden and their free conscience according to their best judgment so it could be defended in front of God Almighty.175 These courts were convened on the king’s initiative to examine and adjudicate crimes usually involving treason and lèse-majesté, but also occasionally severe malfeasance. The accused were ordinarily noblemen, bishops or Councillors of the Realm.176 In some state trials e. g., in the 1610s, 1620s and 1630s, the Svea Court of Appeal was supplemented by other members of the Council of the Realm.177 As so many state trials, involving treason and other political crimes, were tried at special extraordinary courts such as commissions nominated by the Secret Committee of the Parliament in the eighteenth century, these fell into disrepute. One of these trials had involved an attempted royal coup of 1756, masterminded and financed by Queen Lovisa Ulrika (1720–1782) in which her husband, King Adolf Fredrik (r. 1751–1771), would have gained much greater power (in relation to the Estates). The eight main conspirators, including one count, were investigated by a parliamentary commission, tor173  Kjellén,

Riksrättsinstitutets utbildning, pp. 14, 28–29. Riksrättsinstitutets utbildning, pp. 40–73. 175  E. g., Eric Anthoni, Rättegången mot Arvid Eriksson vid 1605 års riksdag och de bevarade rättegångsprotokollen, Skrifter utgivna av Svenska litteratursällskapet i Finland, 335, Helsingfors, 1952, pp. 259–292 at 273–274. 176  Kjellén, Riksrättsinstitutets utbildning, pp. 82–85. 177  Edén, Den svenska centralregeringens utveckling, pp. 252–253, 256–257. 174  Kjellén,

344

M. Korpiola

tured and publicly decapitated the same year. The lesser conspirators were sentenced to imprisonment, exile or loss of office.178 In some instances in the 1760s, ‘extraordinary courts of appeal’ (extra hovrätt), with specially nominated judges – some of them members of various courts of appeal – were also used for particular cases. In a case of the so-called Hofman’s revolt of 1766, an extra court of appeal was appointed for the revolt, while a special commission was established to investigate the local grievances of the people.179 During the Age of Liberty, the Estates assumed the power to inspect the activities of the Svea Court and even assumed the power to mitigate the law in certain cases.180 When King Gustav III (r. 1771–1792) ended the Age of Liberty through his coup d’état in 1772, he used this dissatisfaction against political trials as one of the arguments for gaining support for a considerable extension of the monarchical power. In the new Instrument of Government of 1772, all such ad hoc tribunals (commissions, deputations with power to judge or other extraordinary tribunals) – whether nominated by the king or the Estates – were abolished since they were perceived ‘as means of furthering autocracy and tyranny’ (såsom befodringsmedel till envälde och tyranni). Basically, people were to be judged in their ordinary jurisdiction only.181 This rule was followed even in the case of regicide after King Gustav III himself was assassinated by noble conspirators at a masquerade at the Opera in Stockholm in 1792. As the Svea Court of Appeal could not investigate the crime quickly enough, the investigation was led by Nils Henric Aschan Liljensparre (1738–1814, b. Sivers), the experienced and trusted local chief of police and former official at the Svea Court of Appeal. The main regicide Jacob Johan Anckarström (1762–1792) was in custody in the cellar dungeon of the Svea Court. This Court and the Supreme Court, as the ordinary fora for treason and lèse-majesté, sentenced the regicides and their suspected accomplices to death and other penalties.182

178  Ludvig Stavenow, Sveriges historia till våra dagar, 9, Frihetstiden, Stockholm, 1922, pp. 267–279; Gardar Sahlberg, Mera makt åt kungen – Revolutionsförsöket 1756: Ett reportage, Stockholm, 1976, pp. 137, 165–221; Kjellén, Riksrättsinstitutets utbildning, pp. 147–181. 179  Bendz, Göta hovrätt, pp. 183–187. 180  Jägerskiöld, Hovrätten under den karolinska tiden, pp. 126–127. 181  § 16, Instrument of Government (21 Aug. 1772), Hildebrand (ed.), Sveriges regeringsformer, 1623–1809, p. 128. On the Gustavian coup, e. g., Stavenow, Sveriges historia, pp. 454–465. 182  E. g., Nils Staf, Polisväsendet i Stockholm, 1776–1850, Stockholm, 1950, pp. 181–197; Lars Ericson, Mordet på Gustav III, Lund, 2005, pp. 9, 61–102. See also the printed Kongl. Maj:ts Och Rikets Swea Hof-Rätts Utslag Öfver Capitainen



The Svea Court of Appeal345

Nevertheless, the Instrument of Government of 1772 allowed that if a member of the Council of the Realm, another person of eminent birth or a whole Board were guilty of a crime involving the Crown and those suspected could not be tried in a court of appeal or the Council of the Realm, a special ‘Court of the Realm’ (rikets rätt) was to be installed. This court would consist of the leading officers and highest state officials, including all the presidents and the four most senior judges of each of the courts of appeal. The Attorney General (justitiecantsler) was always to act as the prosecutor (actor).183 Conclusion The establishment of the Svea Court of Appeal in 1614 was an emergency measure in a time of crisis. It became a safety valve for the regime, giving it legitimacy and channelling justice-related business in a country that became increasingly strained during continuous wars. Since the Middle Ages, one of the most important functions of the king had been the guaranteeing of justice. As the Svea Court of Appeal was to replace the former assortment of courts adjudicating in the name of the king both in the capital and in the provinces, this streamlined the judicature. Thus, as a consequence of the establishment of the Svea Court, the hierarchical structure of the Swedish court system was emphasized. All criminal and civil cases had to be sentenced at the local level before appeal or referral to the court of appeal unless an exception had been constituted by law or privileges. The Svea Court of Appeal adjudicated so as to declare the King’s Supreme Judgment and it was therefore the highest ordinate court. Consequently, only the extraordinary remedy which took the form of petitioning for the benefit of revision from the king was possible once judgment was given. The Svea Court was established for the assertion of royal authority in a range of justice-related matters, and it did not hesitate to use its status against recalcitrant litigants or officials. Moreover, the Court had special status through its connection to the Council of the Realm, manned by the leading magnates and royal favourites. Any jurisdictional disputes in the realm were ultimately resolved by the king who also clarified the law and acted as supreme judge. The Swedish model that gave the courts of appeal a combination of appellate and administrative duties proved a success story that was duplicated in other provinces. This helped bring the whole Swedish Realm under better Jacob Johan Ankarström. Gifwet i Stockholm d. 16 April 1792, Stockholm, 1792, which gives the facts of the crime and the court’s reasoning for Anckarström’s guilt. 183  § 16, Instrument of Government (21 Aug. 1772), Hildebrand (ed.), Sveriges regeringsformer, 1623–1809, p. 128.

346

M. Korpiola

royal control. The role of the courts of appeal for the development of law and its harmonization was important. The monitoring of these courts resulted in a more uniform practice within the district and the submission of a large portion of capital penalties to its scrutiny. Judges were required to send in court records yearly for inspection. They were to base their decisions on the law, which reduced the traditional discretionary powers of the local courts. Upholding Swedish law and providing justice to all, rich and poor alike, were duties the Swedish monarchs took seriously. The existence and activity of the Svea Court of Appeal and its sister courts are testimonials of this concern. Bibliography Ågren, M., Att hävda sin rätt: Synen på jordägandet i 1600-talets Sverige, speglad i institutet urminnes hävd, Vol. 57, Stockholm, 1997. Almqvist, D., ‘Om konungsdomarna på Stockholms rådhus, 1592–1595’, Historisk Tidskrift, Vol. 60, 1940, 31–43. Anjou, A., Kongl. Svea hovrätts presidenter samt embets- och tjenstemän, 1614–1898, Eksjö, 1899. Ankarloo, B., Trolldomsprocesserna i Sverige, Vol. 17, Stockholm, 1984. Anthoni, E., ‘Rättegången mot Arvid Eriksson vid 1605 års riksdag och de bevarade rättegångsprotokollen’, Skrifter utgivna av Svenska litteratursällskapet i Finland, Vol. 335, 1952, 259–292. Åström, P., Senmedeltida svenska lagböcker: 136 lands- och stadslagshandskrifter: dateringar och dateringsproblem, Acta Universitatis Stockholmiensis, Vol. 32, Stockholm, 2003. Awebro, K., Gustaf III:s räfst med ämbetsmännen, 1772–1779: aktionerna mot landshövdingarna och Göta hovrätt, Studia Historica Upsalensia, Vol. 96, Uppsala, 1977. Bendz, G., Om hovrätterna från deras uppkomst till 1734 års lag, in Minnesskrift ägnad 1734 års lag av jurister i Sverige och Finland den 13 december 1934 200-årsdagen av Riksens ständers beslut 1, Stockholm, 1934. Bendz, G., Göta hovrätt genom seklerna, Stockholm, 1935. Bjarne Larsson, G., Stadgelagstiftning i senmedeltidens Sverige, Vol. 51, Stockholm, 1994. Blomstedt, Y., ‘Turun hovioikeuden toimitilat’, in: Blomstedt, Y. (ed.), Turun hovioikeus 1623 31/10 1973 Åbo hovrätt, Porvoo/Helsinki, 1973, 186–222. Dahlgren, F. A. (ed.), Lagförslag i Carl den Niondes tid, Handlingar Rörande Sveriges historia, Stockholm, 1864. Edén, N., Den svenska centralregeringens utveckling till kollegial organisation i början af sjuttonde århundradet (1602–1634), Uppsala, 1902. Ericson, L., Mordet på Gustav III, Lund, 2005.



The Svea Court of Appeal347

Gaunt, D., Utbildning till statens tjänst: En kollektivbiografi av stormaktstidens hovrättsauskultanter, Vol. 63, Uppsala, 1975. Gut, P., ‘Das Hofgericht in Greifswald in schwedischer und preußischer Zeit’, in: Jörn, N./Diestelkamp, B./Modéer, K. Å. (eds.), Integration durch Recht: Das Wismarer Tribunal (1653–1806), Cologne, 2003, 157–177. Handlingar Rörande Skandinaviens Historia, Vol. 33, Stockholm, 1852. Handlingar Rörande Sveriges Historia, 3rd series, Stockholm, 1878. Hellemaa, L.-I./Jussila, A./Parvio, M. (eds.), Suomalaisen kirjallisuuden seuran toimituksia, Vol. 444, Helsinki, 1986. Hemmer, R., Landsrätten i Åbo: Finlands första Högsta domstol, Societas scientiarum fennica årsbok – vuosikirja, Vol. 27, Helsingfors, 1949. Hildebrand, B., ‘Falkenstierna, släkten’, in: Svenskt biografiskt lexikon, Vol. 15, Stockholm, 1956, 254–257. Jägerskiöld, S., Studier rörande receptionen av främmande rätt i Sverige under den yngre landslagens tid, Lund, 1963. Jägerskiöld, S., ‘Hovrätten under den karolinska tiden och till 1734 års lag (1654– 1734)’, in: Petrén, S./Jägerskiöld, S./Nordberg, T. O. (eds.), Svea hovrätt: Studier till 350-årsminnet, Stockholm, 1964, 119–336. Jokipii, M., Suomen kreivi- ja vapaaherrakunnat 2, Historiallisia tutkimuksia, Vol. 48:2, Helsinki, 1960. Kagan, H. L., Lawsuits and Litigants in Castile, 1500–1700, Chapel Hill, 1981. Katajala, K., ‘The Changing Face of Peasant Unrest in Early Modern Finland’, in: Katajala, K. (ed.), Northern Revolts: Medieval and Early Modern Peasant Unrest in the Nordic Countries, Studia Fennica Historica, Vol. 8, Helsinki, 2004, 149– 187. Kjellén, R., Riksrättsinstitutets utbildning i Sveriges historia, Skrifter utgifna af Humanistiska Vetenskapssamfundet i Upsala, Vol. 4:1, Upsala, 1895. Korpiola, M., ‘The Fall and Restoration of Elin Tönnesdotter: Land, Noble Property Strategies and the Law in Early Seventeenth-Century Sweden’, in: Korhonen, A./ Lowe, K. (eds.), The Trouble with Ribs: Women, Men and Gender in Early Modern Europe, Vol. 2, Helsinki, 2007, 153–179. Available at https://helda.helsinki.fi/ bitstream/handle/10138/25757/002_09_korpiola.pdf?sequence=1. Korpiola, M., ‘Ratio decidendi in Seventeenth-Century Sweden: The Practice of the Svea Court of Appeal in a Comparative Perspective’, unpublished presentation at the 20th British Legal History Conference, Cambridge, 16 July 2011. Korpiola, M., ‘A Safe Haven in the Shadow of War? The Founding and the Raison d’être of the New Court, Based on its Early Activity’, in: Korpiola, M. (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Rättshistoriska studier, Vol. 26, Stockholm, 2014, 55–108. Korpiola, M., ‘Preface’, in: Korpiola, M. (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Rättshistoriska studier, Vol. 26, Stockholm, 2014, 14–22.

348

M. Korpiola

Korpiola, M., ‘General Background: From Judicial Crisis to Judicial Revolution through the Svea Court of Appeal?’, in: Korpiola, M. (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Rättshistoriska studier, Vol. 26, Stockholm, 2014, 23–54. Korpiola, M., ‘Lutheran Marriage Law in Sixteenth- and Early Seventeenth-Century Sweden: Authorities and Sources of Law’, in: Decock, W./Ballor, J. J./Germann, M./ Waelkens, L. (eds.), Law and Religion: The Legal Teachings of the Catholic and Protestant Reformations, Refo500 Academic Studies, Vol. 20, Göttingen, 2014, 107–132. Korpiola, M., ‘Swedish Court under Scrutiny: The Inspection of the Svea Court of Appeal in 1636’, in: Czeguhn, I./López Nevot, J. A./Sánchez Aranda, A. (eds.), Control of Supreme Courts in Early Modern Europe, Schriften zur Rechtsgeschichte, Vol. 181, Berlin, 2018, 95–115. Lamberg, M., ‘The Tale of Two Courts in One Town: The Relationship between the Stockholm Town Court and the Svea Court of Appeal, 1614–1624’, in: Korpiola, M. (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Re­interpretations and New Perspectives, Rättshistoriska studier, Vol. 26, Stockholm, 2014, 109–130. Larson, J. L., Reforming the North: The Kingdoms and Churches of Scandinavia, 1520–1545, Cambridge, 2010. Larsson, L.-O., ‘Borgrätt och adelsjurisdiktion i medeltidens och 1600-talets Sverige’, in: Historia och samhälle: Studier tillägnade Jerker Rosén, Malmö, 1975, 49–67. Liedgren, J., ‘Gårdsrätt’, in: Kulturhistoriskt lexikon för nordisk medeltid från vikingatid till reformationstid, 5, Copenhagen, 1960. Lindberg, F., ‘Hertig Johan av Östergötland och hans furstendöme’, Historisk Tidskrift, Vol. 61, 1941, 113–149. Melander, K. R., Drag ur Åbo hovrätts äldre historia och ur rättslivet i Finland under förra hälften av 1600-talet, Juridiska föreningens i Finland publikationsserie, Vol. 3, Helsingfors, 1936. Meurling, A. C., Svenska domstolsförvaltning i Livland, 1634–1700, Bibliotheca historica Lundensis, Vol. 19, Lund, 1967. Modéer, K. Å., Gerichtsbarkeiten der schwedischen Krone im deutschen Rechtstorritorium, 1: Voraussetzungen und Aufbau, 1630–1657, Vol. 24, Stockholm, 1975. Modéer, K. Å., ‘Oberste Gerichtsbarkeit und zentrale Gewalt im Schweden in der frühen Neuzeit’, in: Diestelkamp, B. (ed.), Oberste Gerichtbarkeit und zentrale Gewalt im Europa der frühen Neuzeit, Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reich, Vol. 29, Cologne 1996, 191–213. ‘Några handlingar till Gustaf I:s historia, Strödda meddelanden och aktstycken’, Historisk Tidskrift, 1887, 194–198. Nehrman, D., Inledning Til Then Swenska Processum Civilem; Efter Sweriges Rikes Lag och Stadgar författad, Stockholm/Upsala, 1751.



The Svea Court of Appeal349

Nilsén, P., ‘Slandering the King and His Councillors: The Svea Court of Appeal and Judicial Practice, 1614–1700’, in: Korpiola, M. (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Rättshistoriska studier, Vol. 26, Stockholm, 2014, 201–216. Nordberg, T. O., ‘Hovrättens ämbetslokaler’, in: Petrén, S./Jägerskiöld, S./Nordberg, T. O. (eds.), Svea hovrätt: Studier till 350-årsminnet, Stockholm, 1964, 337–393. Odhner, C. T., Sveriges inre historia under drottning Christinas förmyndare, Stockholm, 1865. Petrén, S., ‘Hovrättens uppbyggnad 1614–1654’, in: Petrén, S./Jägerskiöld, S./Nordberg, T. O. (eds.), Svea hovrätt: Studier till 350-årsminnet, Stockholm, 1964, 1–117. Pihlajamäki, H., ‘At synd och laster icke skall bli ostraffade: straffrättsligt appella­ tionsförbud i svensk rättshistoria’, in: Kekkonen, J./Letto-Vanamo, P./Paasto, P./ Pihlajamäki, H. (eds.), Norden, rätten, historia: Festskrift till Lars Björne, Suomalaisen lakimiesyhdistyksen julkaisuja, Vol. E:11, Helsinki, 2004, 65–99. Pihlajamäki, H., ‘Legalism before the Legality Principle? Royal Statutes and Early Modern Swedish Criminal Law’, in: Martyn, G./Musson, A./Pihlajamäki, H. (eds.), From the Judge’s Arbitrium to the Legality Principle: Legislation as a Source of Law in Criminal Trials, Comparative Studies in Continental and Anglo-American Legal History, Vol. 31, Berlin, 2012, 169–188. Pihlajamäki, H., ‘The Court of Appeal as Legal Transfer: The Svea and Dorpat Courts Compared’, in: Korpiola, M. (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Rättshistoriska studier, Vol. 26, Stockholm, 2014, p. 217–260. Ramsay, J., Frälsesläkter i Finland intill stora ofreden, Helsingfors, 1909–1916. Roberts, M., Gustavus Adolphus: A History of Sweden, 1611–1632, London, 1953. Rosén, J., Studier kring Erik XIV:s höga nämnd, Skrifter utgivna av Kungl. Humanistiska Vetenskapssamfundet i Lund, Vol. 51, Lund, 1955. Rothlieb, C. F. (ed.), Samling af kongl. författningar angående rang, Stockholm, 1855. Sahlberg, G., Mera makt åt kungen – Revolutionsförsöket 1756: Ett reportage, Stockholm, 1976. Sallila, J., ‘Entangled in Insolvency: The Svea Court of Appeal and the Making of Bankruptcy Law in Late Seventeenth-Century Sweden’, in: Korpiola, M. (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Rättshistoriska studier, Vol. 26, Stockholm, 2014, 261–300. Schmedeman, J. (ed.), Kongl. stadgar, förordningar, bref och resolutioner ifrån åhr 1528, in til 1701, Stockholm, 1706. Schmid, P., ‘Die Reformbeschlüsse von 1495 und ihre politischen Rahmenbedingungen’, in: Diestelkamp, B. (ed.), Das Reichskammergericht: Der Weg zu seiner Gründung und die ersten Jahnzehnte seines Wirkens (1451–1527), Cologne, 2003, 117–144. Setterkrans, G., ‘Karl IX:s högsta domstol’, Scandia, Vol. 28, 1962, 374–389.

350

M. Korpiola

Silfverstolpe, C. (ed.), Konung Erik XIV:s nämnds dombok, Historiska handlingar, Vol. 13:1, Stockholm, 1884. Staf, N., Polisväsendet i Stockholm, 1776–1850, Stockholm, 1950. Starbäck, C. G./Bäckström, P. O., Berättelser ur svenska historien. Vol. 6: Carl X Gustaf, Carl XI, Stockholm, 1886. Stavenow, L., Sveriges historia till våra dagar. Vol. 9: Frihetstiden, Stockholm, 1922. Stiernhöök, J. O., De jure Sveonum et Gothorum vetusto, Vol. 1, Stockholm, 1962. Stiernman, A.  A. (ed.), Alla Riksdagars och Mötens Besluth/Samt Arfföreningar/­ Regements-Former, Försäkringar och Bewillningar, etc. Stockholm, 1728. Styffe, C. G. (ed.), ‘Ståthållaren Gustaf Olofsson Stenbocks och Biskop Svens i Skara redogörelse inför K: Gustaf I öfver Regiment-Rådets i Westergötland förhandlingar åren 1540–1542’, in: Handlingar rörande Skandinaviens historia, Vol. 29, Stockholm, 1848, 83–159. Styffe, C. G. (ed.), Samling af instructioner rörande den civila förvaltningen i Sverige och Finnland, Stockholm, 1856. Thunander, R., Hovrätt i funktion: Göta hovrätt och brottmålen, 1635–1699, Vol. 49, Stockholm, 1993. Trolle Önnerfors, E., Justitia et Prudentia – Rättsbildning genom rättstillämpning: Svea hovrätt och testamentsmålen, 1640–1690, Stockholm, 2014. Trolle Önnerfors, E., ‘Suum cuique tribuere – Give to Each His Own: Court Cases Involving Swedish Nobility in the Svea Court of Appeal 1650–1690’, in: Korpiola, M. (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Rättshistoriska studier, Vol. 26, Stockholm, 2014, 163–200. Ulkuniemi, M., Suomalaisen Kirjallisuuden Seuran toimituksia, Vol. 340, Helsinki, 1978. Vasara-Aaltonen, M., ‘From Well-travelled “Jacks-of-all-trades” to Domestic Lawyers: The Educational and Career Backgrounds of Svea Court of Appeal Judges, 1614–1809’, in: Korpiola, M. (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Rättshistoriska studier, Vol. 26, Stockholm, 2014, 301–354. Vepsä, I., Oikeuden hakijat: tutkimus Vaasan hovioikeuden perustamisesta ja varhaisesta toiminnasta, Suomalainen Lakimiesyhdistyksen julkaisuja, A-sarja, Vol. 294, Helsinki, 2009. Wedberg, B., Karl XII på justitietronen: Rättshistorisk-biografisk studie, Stockholm, 1944. Ylikangas, H., Suomalaisen Sven Leijonmarckin osuus vuoden 1734 lain naimiskaaren laadinnassa: kaaren tärkeimpien säännöstöjen muokkautuminen, 1689–1694, Historiallisia tutkimuksia, Vol. 71, Helsinki, 1967. Ylikangas, H., Klubbekriget: det blodiga bondekriget i Finland, 1596–97, Stockholm, 1999.

H. PIHLAJAMÄKI

The Appeals Court of Dorpat in the seventeenth century: Establishing Swedish judiciary overseas Introduction The history of the Court of Appeal of Dorpat is intimately linked not only to Swedish legal history but also to the social and political history of Livonia. The region became part of Sweden as a result of the Truce of Altmark in 1629, although the annexation of the entire territory was not formalized until 1660 through the Treaty of Oliva. Before the Swedish period, Livonia had been part of Poland for nearly 70 years. Subsequently, as a result of the Great Northern War, Sweden lost Livonia to Russia. The loss came into effect through the Capitulation of Estonia and Livonia in 1710, and was finalised through the Treaty of Nystad in 1721. Livonia’s Swedish century had come to an end. The second half of the sixteenth century and the first third of the seventeenth century were an era of almost continuous wars, under which Livonians suffered from pestilence and hunger. When Livonia passed into Swedish hands, the province had therefore experienced important economic, social and demographic changes.1 It has been estimated that the population of what is modern Estonia – half of which was Livonia – had dropped from the 250,000 or 300,000 of the mid-sixteenth century to a third of this in the 1620s.2 The demographic changes had vast consequences for the manorial economy. Many manor houses were completely or partly destroyed, and the surviving peasants had largely moved to other areas. The general inspection made by the new Swedish overlords in 1627 showed that in the 50 manors within the Bishopric of Dorpat only 622 Haken (a unit of area measurement equivalent to about eight acres) were inhabited and 1,605 were de1  In his chronicle, Thomas Hiärne describes the pest epidemic of 1580 as follows: ‘… innerhalb kurtzer Zeit ein unzählich Volck daran gestorben, und nicht eine Stadt, Schloss oder Dorff gewesen, da nicht die Leute … kranck gelegen; die Strassen und Märckte der Städte, alle Heer-Strassen und Dörffer waren gantz wüst von Volcke …’ Cited in: J. Kahk, Bauer und Baron im Baltikum: Versuch einer historischphänomenologischen Studie zum Thema ‘Gutherrschaft in den Ostseeprovinze’, Tallinn, 1999, p. 30. 2  H. Palli, Miks eestlased jäid püsima, in: Keel ja kirjandus, 7, 1995, p. 477; see also A. Soom, Der Herrenhof in Estland, Lund, 1954, p. 36.

352

H. Pihlajamäki

serted.3 The Swedish period which followed has, by contrast, traditionally been considered one of relative prosperity and progress. Compared to the Polish period, the position of the peasants became better, though they still remained subjugated to the nobility’s interest. Socially and politically, Livonia was distinct from Sweden proper. Livonia was feudal, a territory controlled by land-owning nobility and with a peasantry tied to the soil.4 Sweden proper was almost completely agrarian, while other social groups than the peasantry represented only a tiny proportion of the population at the beginning of the seventeenth century.5 Practically all of the other estates were also engaged in agriculture.6 Some feudal features emerged and reached their zenith around the mid-seventeenth century, but they never developed as far as they did in Livonia. Thus, the Livonian serf was not nearly as free as a Swedish peasant.7 Against this background, the differences in how the judiciary, and especially the lower judiciary, was organized in Livonia and Sweden becomes understandable. Furthermore, Livonia was different from Sweden proper in that, since the late Middle Ages, the linguistic and cultural ties of Livonia’s German-speaking elite had joined the province to the German cultural sphere, and as far as law was concerned, to the German gemeines Recht. A political connection had been there as well. What later became Swedish Livonia had been part of the Livonian Confederation or the State of the Teutonic Order. The Confederation (and Livonia with it) had been part of the Holy Roman Empire of the German Nation. The connection with the Empire disappeared when the Livonian part of the Confederation was in 1561 annexed to the Grand Duchy of Lithuania, which in 1569, together with Poland, formed the Polish-Lithuanian Commonwealth. 3  A. von Transehe-Roseneck, Gutsherr und Bauer in Livland im 17. und 18. Jahrhundert, Strasbourg, 1890, p. 6. 4  Basing his studies on the Swedish land registers, the Latvian historian Edgar Dundorfs has estimated the population of Livonia in 1688 as 152,000, including soldiers and their families in the province. In the same year, there were 537 manorial estates and 12,272 peasant houses: E. Dundorfs, Der Grosse Kataster in Livland, 1681–1710, Stockholm, 1950, p. 187. 5  Sweden proper in this article refers roughly to the territories of present-day Sweden and Finland. That area formed the nucleus of the Swedish realm in the early modern period. Its population, unlike that of Livonia and the German conquests, was represented in the Estate Diet. 6  N. Runeby, De fyra stånden, in: J. Eriksson/M. Skrutkowski (eds.), Den svenska historien, 4: Gustav Adolfs och Kristinas tid, 1611–1654, Stockholm,1978, pp. 38–44. 7  The difference shows, for instance, in the fact the Swedish peasantry was represented in the Estate Diet as an estate of its own and could have its voice heard. The weight of the peasant estate at the Diet should not, of course, be overestimated.



The Appeals Court of Dorpat in the seventeenth century353

The founding of the Court of Appeal of Dorpat must be seen in a European context. The first wave of European high courts had begun with the founding of the papal high courts, the Parlement of Paris, and the English central courts at Westminster in the thirteenth century. Other courts, such as the Great Council of Malines and the Imperial Chamber Court of the Holy Roman Empire, followed in the fifteenth century.8 The first of the Swedish appeals courts9 was the Svea Court of Appeal in Stockholm in 1614, after which both Turku and Dorpat got appeals courts in 1623 and 1630, respectively.10 The Göta Court of Appeal, located in Jönköping, followed in 1634 and the Court of Appeal of Greifswald in Sweden’s German territories in 1655. The appeals courts acted as channels of the reception of the ius commune. Not surprisingly, Swedish universities and academic law teaching started in the seventeenth century as well. The University of Uppsala, originally established in 1477, resumed its activities in the late sixteenth century. Universities were then founded in Dorpat (1632), Turku (1640) and Lund (1666). The reorganisation of judicial administration began as soon as the Swedish crown had appointed Johan Skytte (1629–1634) as Livonia’s first governorgeneral. Three statutes determined the jurisdiction of the Livonian lower courts and the appeals court: the Landgerichtsordinanz of 1630 (§ 8), the Verbesserte Landgerichtsordinanz of 1632 (Arts. 5–7), and the Hofgerichts­ ordnung of 1632 (§ 20). The province was divided into five royal country court districts, responsible for both criminal and civil cases as the first instance: Riga, Dorpat, Pernau, Wenden and Kokenhausen. However, the court of Wenden either never functioned, or functioned only for a few years, because it was too small as an independent unit after the private court of Chancellor Oxenstierna had assumed most of the legal business in the Wenden area.11 The four other courts functioned all through the Swedish period. 8  On the development of European appeals courts, see the contributions in A. Wijffels/C. H. van Rhee (eds.), European Supreme Courts: A Portrait through History, London, 2013. 9  It is debatable whether the Swedish superior courts should be called appeals courts in English. In Swedish the term is hovrätt, which translates literally into ‘court council’. These courts had an appellate function, but they acted to a considerable extent also as first-instance courts for the nobility. The term appeals court is used in this contribution. 10  On the founding of the court see M. Korpiola, A Safe Haven in the Shadow of War? The Founding and the Raison d’être of the New Court, Based on its Early Activity, in: M. Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Stockholm, 2014, pp. 55–108. 11  The royal Wenden Land Court was founded in 1634, but surviving records show that at least by 1638 the court had ceased to function. See A. Chr. Meurling, Svensk domstolsförvaltning i Livland, 1634–1700, Lund, 1967, pp. 81–82.

354

H. Pihlajamäki

In order to assume a firm hold of the legal development in the newly conquered territory, it was pertinent to establish an appeals court. Such a court was established in Dorpat (present-day Tartu), the largest city within the new court’s jurisdiction. 1. The Court of Appeal in political context The Swedish seventeenth-century court reform was part of what has been called a ‘judicial revolution’, in that the wide-ranging reforms created a relatively modern division of labour between administration and justice. This claim is, however, not equally true for all parts of the realm and for all judicial levels. The lower courts in the countryside of Sweden proper still continued to be in charge of not only judicial but also everyday administrative affairs. This is clearly so for the Livonian towns as well: in these towns, the administration was organized with the help of several kinds of law courts. Not only did these courts adjudicate legal disputes but they also managed mundane administration, such as trade regulation and poor relief. Livonian lower courts in the countryside (Landgerichte), however, concentrated almost exclusively on judicial affairs as the administration was organized through the feudal economy, unlike in Sweden proper. There, the peasantry took part in the administration through the institution of the lower courts (ting). After its foundation in 1614, the Svea Court of Appeal was in charge not only of judicial matters but also of various kinds of administrative affairs, acting as a sort of a ministry of justice.12 Soon its activities seem to have narrowed down to judicial affairs, and the same is true for the Dorpat Court from the very beginning of its activities. The tasks of the Court were limited to administration of justice and the control of the lower courts. Therefore, the Dorpat Court cannot be said to have exercised political authority of any meaningful kind. Instead, the governor-general represented and exercised the crown’s political authority in the province. Starting with the first governor-general, Johan Skytte, they tended to be powerful and influential men. The question to be asked, then, is whether and to what extent the governor-generals influenced the decision-making of the Court. The governor-general indeed possessed various powers, which enabled him lawfully to influence the workings of the Court. He could initiate proceedings, he could grant letters of protection (salvum conductum) and he also had responsibilities as to the execution of the Court’s decisions. In 1690 12  See

the contribution of Korpiola in this volume.



The Appeals Court of Dorpat in the seventeenth century355

Joachim Olrau claimed that Wilhelm Stuart had, with a group of other soldiers, unlawfully entered Olrau’s house and attacked him and his housefolk. Stuart had also slandered Olrau’s female family members. Olrau thus turned to the governor of Livonia, Erich Soop, asking for his protection (in deßen mit und meinem Hause für fernern Gewalt schützen und befreyen mögen). Olrau also asked that the governor see to it that the defendants be sent to answer at the Town Court of Walk. This was not done, but instead the governor sent the defendants to the Pernau Land Court.13 Regardless of the governor-general’s role in the Court’s judicial activities, it would be erroneous to claim that he routinely interfered in the administration of justice. Neither do we know of any cases in which the governorgeneral attempted to assume any of the legal responsibilities of the judiciary himself.14 What happened through private influence is of course difficult to know, but the court records show no trace of any continuous involvement of the governor-general in judicial affairs, apart from his routine duties mentioned above. In this sense, the founding of the Court can be said to have modernized judicial decision-making in the true spirit of the ‘judicial revolution’. Two other features of the Swedish legal system need to be taken into account when the relationship between the judiciary and political power is assessed. First, the king routinely supervised appeal court practice by issuing ‘letters’ (brev), which contained rules arising from legal problems in individual cases. It was the appeals courts themselves that sometimes asked the king for advice when they wanted an authoritative interpretation. The practice was thus essentially the same as the French référé legislatif. An example can be seen in 1684, when a royal letter of December 1686 made it clear that torture could not be used. The letter was a response to a référé legislatif that the Court of Appeal of Dorpat had made and it seems to have been effective. At least the case material examined for this study shows no instances of ju13  ‘Durch welche atrocissimam injuriam und Ertz-Verläumbdung so wohl ich alß die Meinigen an Ehr und guten Nahmen, solcher gestalt angegriffen und beleidiget, auch gewaltsam und mörderl. weise überfallen worden, daß ich genohtsachet werde, rechtmäßige satisfaction und reparation meiner und der Meinigen gar zu schändl beleidigten Ehren und geschehenen Haußgewalt zu suchen, weilen solches aber auf Ihr Königl. Mytt. allergnödigstbn verordnung so wohl arm alß reichen nicht anders alß durch hochobrigkeitl. Hülffe geschehen kan; So ergehet demnach an Ewr. Hochwgbr: Excell: M. unterthäniges füßfälliges bitten, Sie wollen gnödig, geruhen, in abwesenheit den. Hn. ObristLieut: Wrangel. den. H. RittMr. Wrangell von der Compagnie durch Hochobrigkeitl. Rescript ernstl. anzubefehlen, daß Er nicht allein die Reutere so es alles angesehen und gehöret haben, vor unsern Walckischen Gerichte umb die sache außführlich zu inqviriren stellen …’: Pernau Land Court 1690, f. 569–573, 599. 14  Meurling, Domstolsförvaltning, pp. 110–141; R. Tuchtenhagen, Zentralstaat und Provinz im frühneuzeitlichen Nordosteuropa, Wiesbaden, 2008, p. 144.

356

H. Pihlajamäki

dicial torture after 1686.15 Second, commissorial courts (kommissorialrätt) were frequent in Sweden just as elsewhere in early modern Europe. They were courts set up for a specific case or a specific set of cases, such as witchcraft trials or politically sensitive cases. Within the jurisdiction of the Dorpat Court of Appeal, commissorial courts were also frequently used. Georg Stiernhielm, a Swedish judge who served in Livonia in both the Dorpat Land Court as well as the Court of Appeal, criticized a decision of the Dorpat Court of Appeal to establish a commission to resolve a case between Stiernhielm and Johan Adam Schraffer. Stiernhielm thought that he should have been cited at iudicem ordinarium et in foro competenti,16 thus at the Court of Appeal itself. However, as Stiernhöök’s case suggests, judges from permanent courts were at least sometimes or even often used as members in the commissorial courts. As with all Swedish courts of appeal, the Court of Appeal of Dorpat contributed towards centralization in two ways, by unifying lower court practice, and by implementing decisions and instructions from above. As for the first case and as the example of Stiernhielm shows, a judicial career often included phases of serving in both lower courts and the Appeals Court. The same judge could sometimes even serve simultaneously in both a lower court and the Court of Appeal. As for the second case, the appeals courts received instructions on specific legal problems from the king, sometimes themselves asking for advice. Appeals court decisions could not be appealed, which meant that the Swedish crown exercised no systematic control over its appeals courts in the seventeenth century. The only remedy against appeals court decisions in criminal cases was mercy, and in civil cases an extraordinary remedy called beneficium revisionis stood at the disposal of the parties, to be discussed later. In the beginning, the Swedish crown seems to have been optimistic about the possibilities for spreading Swedish law to Livonia. It was specifically mentioned in the Appeals Court Instruction (Hofgerichtsinstruktion) that the judges of the Court of Appeal of Dorpat were to be Swedish, German or Livonian. The number of Swedish judges always remained low, however, and throughout the Swedish period most of the judges were Baltic Germans. During the first four decades of the court’s existence there were typically three or four Swedish judges in the court. Towards the end of the period 15  Still at the end of the 1670s, several cases of judicial torture occurred at the Pernau Lower Court. See the case of Oyo above; also 915/1/61 (murder) and 915/1/41 (sodomy). 16  See P. Wieselgren (ed.), Samlade skrifter av Georg Stiernhielm, 3:1, Stockholm, 1937, pp. 147–148. Unfortunately, no thorough legal-historical study on the Swedish commissorial courts exists.



The Appeals Court of Dorpat in the seventeenth century357

there were even fewer Swedish judges, the 1680s representing an all-time low. In 1685, for instance, not one single Swedish judge sat in the court.17 According to Arvo Tering, half of the assessors (37 out of 73) in 1630–1710 were of Estonian or Livonian origins, a quarter (27.4 per cent) Swedes and a fifth (21.9 per cent) Germans. For the Swedes, the Dorpat court was a stepping-stone to other posts in the Swedish judiciary, and they usually stayed in Dorpat for a relatively short time. Although half of the posts were allocated to noblemen, they were often not only noble but also trained in law. This was especially the case in the 1690s and 1700s when all assessors, the noblemen included, were trained lawyers.18 Curiously enough, the end of the Swedish era was precisely the epoch when the Swedish laws poured into Livonia much more vigorously than in the beginning of the period. This had, however, nothing to do with the internal composition of the Court of Appeal, but is better understood against the general background of Swedish politics, which aimed at putting Livonia on a tighter leash. The judges of the Court of Appeal of Dorpat studied in at least 20 different universities, and two thirds of the learned judges in more than one university, the Court thus forming one of the most learned establishments in Swedish Livonia. Among the most influential in terms of numbers were Uppsala (20), Leiden (15), Königsberg (10), Jena (10), Rostock (9), Helmstedt (10), Dorpat (7), Frankfurt an der Oder (6), Leipzig (5) and Greifswald (5). The influence of Uppsala concentrated on the early period, during the1630s and 1640s. Tering has been able to trace the career paths of more than half (36 of a total of 61) of the appeals court judges (Assessoren). The Court of Appeal was, for most, the top of their career. Of the thirty-six individuals, twelve had been judges in other Livonian courts, such as land courts, castle courts, the Upper Consistory or military courts. Thirteen had served as notaries or secretaries. Some university professors were also recruited. Not all of them were legal scholars: for instance, one of the earliest representatives of Newtonian teachings in Sweden, Sven Dimberg, was given a post in 1706. Many judges held secondary jobs as professors, burgermeisters, or land court judges. For instance, Georg Stiernhielm was land court judge at Dorpat (at the Appeals Court 1630–42, 1689–49), and Caspar Ceumern in Pernau (at the Appeals Court 1662–86). Most of the learned judges were also ennobled at some point, although not necessarily at the same time they were appointed.19

17  A. Tering, Über die Juristenausbildung der Mitglieder des Hofgerichts in Dorpat (Tartu), 1630–1710, Tartu, 1989, pp. 30–35. 18  Tering, Juristenausbildung, p. 30. 19  Tering, Juristenausbildung, pp. 30–31.

358

H. Pihlajamäki

2. The jurisdiction of the court The geographical jurisdiction of the Court of Appeal of Dorpat consisted of the Province of Livonia, except for Riga, which the local bourgeoisie after serious negotiations managed to have placed under the jurisdiction of the distant Svea Court of Appeal in Stockholm. Skytte was anxious at first to draw the powerful town of Riga into the new jurisdiction. However, these plans not only encountered the opposition of the Riga bourgeois elite, eager to keep its legal affairs out of the Livonian nobility’s reach, but the plans also received little or no support from the king or his politically cautious chancellor Axel Oxenstierna.20 The Estonian nobility was strictly against Skytte’s original plan to include both of the Baltic Sea provinces – Estonia and Livonia – within the jurisdiction of the new appeals court. Careful so as not to endanger their loyalty, the king finally decided not to exclude Estonia.21 The jurisdiction of the new appeals court thus finally emerged considerably curtailed, with both Estonia and Riga under the Svea Court of Appeal. Until 1684, Ingermanland (the area surrounding present-day St. Petersburg) belonged to Dorpat’s jurisdiction. Ingermanland’s legal system was essentially Swedish, and since few of the judges at the Dorpat Court were Swedish, it had turned out to be difficult for the Court to handle affairs coming from that area. Ingermanland was annexed to the jurisdiction of the Turku Court of Appeal, which from the point of view of legal sources was a much more logical choice. Ingermanland was in 1684 taken out of the Court of Appeal of Dorpat’s jurisdiction and added to that of the Court of Appeal of Turku.22 This probably had to do with waning knowledge of Swedish law at the Court of Dorpat. The drawing of the jurisdictional boundaries thus involved problems as far as the city of Riga and the province of Estonia were concerned. Although Estonia and Riga managed to avoid submission to the Dorpat Court, other jurisdictional problems remained. They had to do with private courts, both manorial courts and patrimonial courts. In their own ways, both manorial and patrimonial courts carved out parts of the jurisdiction of the Appeals Court. Manorial courts operated on the estates of noble manor houses. Manorial courts were a European-wide phenomenon, which in many parts of Europe were an aspect of the feudal rights of the landlord. The practical arrange20  R. Liljedahl, Svensk förvaltning i Livland, 1617–1634, Stockholm, 1933, pp. 319,

533.

21  Liljedahl, 22  Tering,

Förvaltning, pp. 310, 318. Juristenausbildung, pp. 34–35.



The Appeals Court of Dorpat in the seventeenth century359

ments in Livonia were similar to those in other parts of Europe. The landlord himself or his steward presided over the court, in which the most respected and trusted peasants acted as ‘law-finders’ (Rechtsfinder in the German-language Livonian court documents). Manorial courts were in charge of petty crimes committed by the peasants and of civil cases between them. Since the proceedings were oral, we know little of the law applied or cases tried in these courts. It is, however, clear that the manorial courts had existed before the Swedish era and that they remained during it. Although manorial courts are not mentioned in the statutes governing the Livonian judiciary in the Swedish era, it does not seem that the existence of these courts was ever seriously questioned. They were, on the contrary, a natural part of a legal order in which many of the legal responsibilities fell on the nobility. In addition to maintaining manorial courts, noblemen were also in charge of organizing pre-trial custody for those suspected of serious crimes, and of the execution of punishments. Yet from the point of view of the Appeals Court, the cases tried in the manorial courts were out of reach because the decisions could not be appealed. In Sweden proper, a much wider range of peasant cases could at least in theory reach the appeals courts. No manorial courts in the Livonian and European meaning of the term existed there; instead, all cases were tried in the general lower courts. Patrimonial courts were a noble prerogative as well. They were different from manorial courts. Whereas manorial courts were composed of peasants and decided their cases only, the patrimonial courts, in the sense meant here, decided all cases (except those belonging to manorial courts) within their jurisdiction. Reflecting a general European phenomenon, noblemen were permitted to operate courts of their own, although the subject-matter jurisdiction differed from region to region. In Sweden proper, these private courts remained a relatively marginal phenomenon, although several emerged during the first half of the sixteenth century. The right to hold court was usually part of the enfeoffment which a nobleman received from the crown. Swedish patrimonial courts were, however, closely linked to the general system of courts. Decisions of patrimonial courts could always be appealed to the crown’s appeals courts, and patrimonial courts were organized in the same way as courts of the crown. The patrimonial nature of the noblemen’s courts in Sweden proper showed through the holder of the enfeoffment being allowed to keep a share of the monies generated by the court fines. In addition, he was allowed to appoint the judge to his court.23

23  See H. Pihlajamäki, The Court of Appeal as Legal Transfer: The Svea and Dorpat Courts Compared, in: Korpiola (ed.), The Svea Court of Appeal in the Early Modern Period, pp. 217–260, 246–255.

360

H. Pihlajamäki

Apart from the four royal courts, two patrimonial courts existed in the district of the Dorpat Court of Appeal, one in Pernau and the other in Wenden. The right to maintain private courts and the income they generated belonged to the privileges of the landlords, in Pernau to those of the counts of Thurn, and in Wenden to Count and Chancellor Axel Oxenstierna.24 In Wenden, Oxenstierna had de facto held court in 1625, although he received the formal privilege only in 1632. The county of Pernau was enfeoffed to Count Frans Bernhard von Thurn, who in 1627 received jurisdiction over all the subjects of the crown in the county.25 When the Count died in 1628, his widow Magdalena von Thurn began administering his assets – the court included – in the name of their young son who was a minor. The jurisdiction of the patrimonial courts included everyone living within the lands of the nobleman. Whether noble estates (belonging to noblemen living on the land but with no feudal relationship to the holder of the patrimonial court jurisdiction) were also included under the patrimonial jurisdiction remained a contested matter practically until the dissolution of the patrimonial courts in 1681. The negative attitude of the Livonian Knighthood in particular persisted.26 Oxenstierna was not at first interested in including noblemen in his jurisdiction. According to Meurling, however, Oxenstierna’s attitude changed. Liljedahl claims that Oxenstierna’s royal letter of privilege later extended his jurisdiction to everyone living within his enfeoffment.27 The interpretation is supported by the fact that by 1638 the royal Land Court of Wenden – previously in charge of those areas in the Wenden district not belonging to Oxenstierna’s court – is no longer mentioned in the accounts of the Baltic provinces.28 The royal court had thus probably fallen out of business. Whether the cases of noblemen now belonged to the jurisdiction of Oxenstierna’s court or the surrounding royal courts is not quite clear. De facto the latter was probably the case at least until 1640, when a royal edict ordered that the cases arising from the lands of free noblemen should not be taken to the count’s private court. Besides, it was ordered that the decisions of the private court would have to be sent to the Dorpat Court of Appeal for approval. In 1649, however, the policy was reversed as Queen Christina now ordered that all the cases from the noble lands situated within the country should also be under the count’s jurisdiction. This was in line with the royal Meurling, Domstolsförvaltning, p. 81. von Thurn, the mother of the Count of Pernau, was ferociously against a royal land court in the area. In 1631, Governor-General Johan Skytte served her with an injunction not to hinder the establishment of a royal land court in the Pernau District: Liljedahl, Förvaltning, pp. 45, 284–285. 26  Meurling, Domstolsförvaltning, pp. 90–91. 27  Liljedahl, Förvaltning, p. 285; cf. Meurling, Domstolsförvaltning, p. 88. 28  Meurling, Domstolsförvaltning, p. 88. 24  See

25  Margareta



The Appeals Court of Dorpat in the seventeenth century361

policy of seeking support from the high nobility for a strong central power. In Oxenstierna’s lands the situation had been de facto the same even without a specific statute regulating the matter. A statute regarding his private court in Wenden was finally issued in 1655.29 The founding of the royal court in the region surrounding the town of Pernau faced even greater challenges, for Countess Magdalena Thurn fiercely opposed any idea of a royal court in her lands. Instead, she wanted to maintain a court of her own. The situations of the countess and Chancellor Oxenstierna were, naturally enough, vastly different. The Thurn family had immigrated to Livonia from Austria in the sixteenth century and had no ties to the Swedish crown and the central power. Oxenstierna, in turn, was the royal chancellor and the most powerful civil servant in the realm – a man of the inner circle par excellence. Oxenstierna could expect large benefits from the crown in the form of privileges and enfeoffments, but declaring an open war vis-à-vis the crown’s intentions of establishing a workable judicial system in Livonia would have been absurd in his case. Seen through the eyes of the countess, however, the plans of the Swedish crown must have looked much more threatening. Keen on securing royal interests in the Pernau region, Governor-General Johan Skytte issued an injunction prohibiting the countess from complicating the establishment of the new royal land court. An edict of 1633 and one of 1640 declared that the free allodial goods of noblemen were excluded from the comital court’s jurisdiction, and thus pertained to that of the royal court.30 The comital court was allowed to function, although with a more limited jurisdiction than the countess had wished. This did not do away with the countess’s resistance, which is demonstrated well in the names used for the comital court. In the minutes of the countess’s court from 1632, the court is not always called land court, but Gräffliches Pernouwsches Obergericht, Gräffliches Thurnisches Obergericht, Gräffliches Landgericht or Gräffliches Schlosgericht.31 Different names are sometimes used even in the same legal case. Not surprisingly, the court proved unreliable where its responsibility for sending its minutes to the Dorpat Court of Appeal for inspection was concerned. If the minutes did nevertheless arrive at the Court of Appeal, it was more ad illusionem, als ad leuterationem, as the Court’s President formulated it.32 In 1644, the Court of Appeal even summoned the countess and her judges to respond to the charges that the comital court had imposed sen29  Meurling,

Domstolsförvaltning, p. 91–94. Domstolsförvaltning, p. 91. 31  Eesti Ajalooarhiiv, Fond 915/1/1; Pärnu maakohtu protokoll (kriminaal) 1632– 1643 [PLG] f. 6, 8 a, 22. 32  Meurling, Domstolsförvaltning, pp. 91–92. 30  Meurling,

362

H. Pihlajamäki

tences without sending them to the Court of Appeal for approval. The countess, however, appealed to the king and managed to have the summons annulled.33 After the Thurn family became extinct in 1661, the county was enfeoffed to Chancellor Magnus De la Gardie, and it was now included in the jurisdiction of the comital court covering all of De la Gardie’s Baltic possessions. In 1681, the enfeoffments of both De la Gardie and Oxenstierna returned to the state as part of the Great Reduction. This meant that the two private land courts ceased to exist, and their jurisdictions were taken over by the royal courts.34 The island of Ösel presented yet another complication to the geographical jurisdiction of the Dorpat Court of Appeal. The island had fallen to Sweden in the Peace of Brömsebro in 1645, and Queen Christina had in 1646 guaranteed the estates of the island their privileges. The main court structure included land courts, town courts (in Arensburg) and an Oberlandgericht as an appeals court. The privilege letter of the Queen had established the Svea Court of Appeal as the appeals court regarding the decisions of the Oberlandgericht. The opinions of the local nobility varied, however, as to whether the Svea or Dorpat Court of Appeal would better correspond to their interests. Probably both appeals courts were used until in 1661, when the Queen established by her resolution that appeals would henceforth go to Dorpat.35 The geographical jurisdiction of the Court was one thing, but the procedure itself also needed to be organized. Again, one cannot understand the Livonian development without placing it in the context of Sweden proper. Swedish legal procedure had been thoroughly reformed through the Judicial Ordinance (Rättegångs-Ordinantie) of 1614 and the Judicial Procedure Ordinance (Rättegångs-Process) of 1615. The Judicial Ordinance reorganized the judicial hierarchy. The procedure at the Svea Court of Appeal was then elaborated further in the Judicial Procedure Ordinance. In addition to the various details of procedure at the Court of Appeal itself, the procedure through which an unsatisfied party could have a court of appeal decision remitted to the king was statutorily confirmed (beneficium revisionis). The Ordinance then later came to govern the procedure in other appeals courts of Sweden proper as well. The Swedish judicial statutes of 1614 and 1615 were, however, not directly applicable in Livonia, which issued regulations of its own. The first of these was the Land Court Order (Landesgerichtsordnung) of 1630. The Or33  Meurling,

Domstolsförvaltning, p. 91. Domstolsförvaltning, p. 87. 35  Meurling, Domstolsförvaltning, pp. 53–57. 34  Meurling,



The Appeals Court of Dorpat in the seventeenth century363

der was based on the Swedish procedural ordinance of 1615 (RättegångsProcess), of which it was largely a translation.36 The Order of 1630 was followed by the Renewed Land Court Order of 1632 and the Court of Appeal Ordinance of 1632.37 European models, such as the Imperial Chamber Court Ordinance (Reichskammergerichtsordnung) of 1495 and other similar enactments modelled on the Ordinance, had heavily influenced the Swedish statutes.38 The Livonian statutes, in turn, were drafted so that they followed the Swedish examples closely. However, the Livonian enactments were not identical to the Swedish ones. We will now see how the Livonian and Swedish statutes differed from one another. The system of legal sources was dealt with differently in Sweden proper and Livonia. The Swedish courts, according to the Judicial Ordinance, were expressly forbidden to use ‘foreign,’ i. e. Roman law. Such a straightforward prohibition would not do in Livonia, however. In the conquered province, Roman law had gained a considerable bridgehead already before the Swedes came, in addition to which the conquerors had to come to terms with the local law as well. As Meurling remarks, the Hofgerichtsinstruktion states that the judge in charge of preparing a case should see whether the decisions of the lower courts were ‘based on Swedish laws, and [whether they] complied with it or not’ (in schwedischen Rechten gegründet, und damit übereinkombt oder nicht).39 However, the Hofgerichtsinstruktion should best be understood in the context of the Verbesserte Landgerichtsinstruktion of 1632, carefully placing the Swedish and Livonian laws in relation to each another, and to the ius commune. Obviously, all levels of the judicial system needed to communicate with each other and preferably apply the same legal sources. In the Verbesserte Landgerichtsinstruktion, the Swedes solved the problem of legal sources with the help of the common European model of legal spheres, the Statutentheorie of the ius commune. In that theory, priority was given to the smallest legal sphere with its laws and legal customs. If the law of that sphere did not provide the answer, the solution to a legal problem was sought in the next largest sphere. This continued until one eventually arrived 36  Liljedahl, Förvaltning, p. 302; J. Buddenbrock, Sammlung der Gesetze, welche das heutige livländische Landrecht enthalten. Vol. 2: Aeltere hinzugekommene Landesrechte. Part 1: Landesordnungen vom Jahr 1621–1680, Riga, 1821, pp. 1, 62–75; Meurling, Domstolsförvaltning, pp. 44–45. 37  All three statutes are printed in Buddenbrock, Sammlung II. 38  See S. Petrén, The Reform of the Swedish Judiciary under Gustavus Adolphus, in: M. D. Forkosch (ed.), Essays in Legal History in Honor of Felix Frankfurter, Indianapolis, 1966. 39  Meurling, Domstolsförvaltning, p. 45.

364

H. Pihlajamäki

at the ius commune, providing the final ‘safety valve’.40 Every major European country had its own variety of the statute theory. The French with their Droit commun, the Spaniards with the derecho común, the Dutch with the Roman-Dutch law, and the Germans with their gemeines Recht are cases in point. These local ‘common laws’ had in principle to yield to town laws and local consuetudines, and these national common laws were primary in relation to the European ius commune.41 The Swedish-Livonian version of the statute theory was incorporated in Article XXIX of the so-called Verbesserte Landgerichtsordnung of 1632, regulating the lower courts in the countryside in the first place. According to this article, Livonian law came first, then Swedish, and then Roman law.42 Regarding the personal and subject-matter jurisdiction of the Livonian courts, Article 5 of the Verbesserte Landgerichtsordnung 1632 stated that ‘each and every person, was directly subject to the Royal Majesty in these lands, that is noble or not noble, ecclesiastical or secular, and soldiers placed in castle camps belong to the jurisdiction of the land court’.43 This seemed to bring everyone residing within the territory into the land court’s jurisdiction. However, as we have seen, most of the peasant cases were tried in manorial courts, and only the serious criminal cases involving peasants were adjucated in the land courts. This affected the docket of the Court of Appeal as well, because manorial court decisions could not be appealed. Article 6 stated that all cases (criminalia und civilia) were included in the jurisdiction of land courts, except for those belonging to the Court of Appeal’s jurisdiction under the Hofgerichtsordnung or ‘the Swedish laws’.44 Section 45, Paragraph 20 of the Hofgerichtsordnung, which was by and large an abbreviation of the Swedish Judicial Procedure Ordinance of 1615, provided the following in40  See W. Wiegand, Studien zur Rechtsanwendungslehre der Rezeptionszeit, Edelsbach, 1977. 41  See H. P. Glenn, On Common Laws, Oxford, 2007. 42  The courts were to judge erstlich nach lieffländischen Rechten löblichen Gewohnheiten, soweit dieselbe dem Worte Gottes oder dem Königl. juri superioritatis nicht entgegen, wo dar aber nicht eine Gewißheit nicht vorhanden, nach Schwedi­ schen Rechten, Constitutionen, Reichs-Abschieden, und Gebräuchen, so mit dem jure saniorum populorum communi einstimmig, sprechen und verabschieden. See Buddenbrock, Sammlung II, pp. 104–105. 43  LGO 1632, Art. V: An diese Land-Gerichte gehörne alle und jede Personen so in diesen Landen der Königl. Majestät immediate unterworffen, sie seyn Adel oder Unable, Geistlich- oder weltlichen Standes, auch im Burglager liegende Reuter und Soldaten. See Buddenbrock, Sammlung II, p. 27. See also LGO 1630, § 20. 44  LGO 1632, Art. VI: Imgleichen gehören zu diesem Gerichte, alle und jede Sachen, criminalia und civilia, die allein ausgenommen, so in der Hofgerichtsordnung excipiret und nach Schwedischen Rechten immediate ans Hoff-Gerichte gehören … See Buddenbrock, Sammlung II, p. 27.



The Appeals Court of Dorpat in the seventeenth century365

structions regarding the Court of Appeal’s jurisdiction: the Court was the appeals instance for all civil cases decided by the lower courts in both the countryside and the towns in the provinces of Livonia, Ingermanland, and Carelia. Cases with an interest of less than 50 dalers, however, were not appealable. As mentioned already, cases emanating from the courts in Ingermanland and Carelia were to be decided according to Swedish law. The Court of Appeal’s jurisdiction consisted of the following types of cases. First, the Court decided at first instance all crimes against the royal majesty (crimina laesae Majestatis), and against the state or state finances (causae fisci). These cases were, however, first to be investigated at the lower courts (although not decided there). Second, the Dorpat Court of Appeal decided at first instance cases of denegatio iustitiae, cases where justice had been denied or delayed, or in which the lower court was suspected of not being objective or being suspect. Third, testamentary cases of the nobility were first-instance cases of the Court of Appeal. Fourth, all cases regarding consistories, the church, gymnasiums, schools, hospitals and the like, as well as cases concerning governors, Stadthalter, or the royal economic interest, which could not be decided elsewhere, belonged directly to the Appeals Court, as well as (fifth) all those cases that the crown itself ordered the Court of Appeal to hear and decide. The Landgerichtsordnung of 1630 contained complementary information on the Court of Appeal’s jurisdiction. According to § 8, all cases concerning land privileges, inheritance, succession, possession of noble goods and serious crimes (nec non atrocissimarum iniuriarum) by noblemen belonged to the Appeals Court jurisdiction as well.45 Article 10, furthermore, stated that if peasants had claims against their lords or stewards, or the like (… Herrschaft, und deren Haupt- und Amptleute oder Arendatoren …), because of excessive workloads or overly harsh treatment (… wegen übermässiger Bedrückung und unträglicher Schärffe …), these claims were to go to the Appeals Court directly. Even if a peasant did not make an official claim, a land court judge finding out about an oppressive situation was obliged to advise the suspect to employ ‘moderate behaviour’ (Moderation). Should he

45  According to § 8 LGO, if a nobleman was caught red-handed committing a crime, he was to be taken into custody and questioned at the local lower court, after which the documents and the suspect were to be delivered to the government in Riga. See also Buddenbrock, Sammlung II, p. 24, who says that at his time (the early nineteenth century) the norm was still in full force, except that the case file was then no longer sent to the governor first but straight to the court of appeal. Interestingly, the Swedish Judicial Ordinance, § 14 (of which § 8 LGO was by and large a compendium) stated that crimes committed by all noblemen, not just those caught in flagrante delicto, were to be considered at lower courts and then decided at appeals courts.

366

H. Pihlajamäki

not comply, the judge was to inform the Court of Appeal.46 The normative content of the paragraph obviously relates to the contemporary German situation. In the German territories, as a result of the sixteenth- and seventeenthcentury peasant uprisings, peasant-lord relations had become a distinctly legal matter. Legal and political literature on the subject, both pro-peasant and pro-landowner, had also emerged.47 The institution of denegatio iustitiae remained foreign to the courts in Sweden proper. Neither the relevant paragraph of the Swedish Judicial Ordinance of 1614 nor the Judicial Procedure Ordinance of 1615 contain a paragraph corresponding to the Livonian LCO 1632 Art. X. The reasons are obvious. The Swedish peasants needed less protection than their Livonian counterparts because their conditions were much better than those of Livonian peasants. Peasant-lord relations had not become a matter of legal discussion to the extent that they had in Germany. In Livonia, the social structure resembled more the German situation. On the other hand, the Swedish peasants had always had a right to ‘go to the king’ directly if they saw their rights violated, and they retained this right even after the founding of the Court of Appeal. Although the statutes governing the procedure at the Swedish and Livonian courts looked rather similar, important differences existed. Contrary to the claims of earlier research, the Livonian statutes were not direct translations of the Swedish ones. Although the Swedish statutes were taken as the basis for the Livonian regulation, important amendments and changes were made. We should, furthermore, be careful to avoid thinking that the statutes offer a complete description of the legal reality. As with statutes generally, the Livonian procedural statutes also left room for manoeuvre in practice. The judges at the Livonian Court of Appeal, following European legal developments more closely than their colleagues in Sweden proper, adopted features of the German gemeines Recht, based on Romano-canonical or ius commune procedure. One such feature of the early modern civil procedure of the gemeines Recht was that the procedure was ‘articulated’. The literature calls this type of procedure ‘articulated procedure’ (Artikelprozess) or ‘positional procedure’ (Positionalverfahren). After litis contestatio, the plaintiff had to present his claim on the merits in ‘articles’ (Artikeln), or, as they were sometimes called, ‘positions’ (Positionen). They usually began with the words ‘true, that’ (wahr, dass …). The answers (Responsionen) of the de1632, Art. X, Buddenbrock, Sammlung II, p. 93. scholarship speaks of Verrechtlichung; see W. Schulze, Die Entwicklung des ‘deutschen Bauernrechts’ in der Frühen Neuzeit, in: Zeitschrift für Neuere Rechtsgeschichte, 12, 1990, pp. 127–163, 133. 46  LGO

47  German



The Appeals Court of Dorpat in the seventeenth century367

fendant then began with the expressions ‘believes to be true’ (glaubt wahr) or ‘believes not to be true’ (glaubt nicht wahr).48 Procedural claims were common in the Livonian courts. They were an essential part of the advocates’ strategy to delay the procedures in order to gain time for negotiations or to tire the other party out. In 1688 Lieutenant Carl Friedrich Lilienfeld, the tenant farmer (arrendator) of the island of Kyhn (Kihnu) was charged by his peasants for causing their mistreatment. The Court dismissed the case because the forum was not appropriate: the right instance for noblemen was the appeals court (weil vermöge Königl. Ordinanzt solche actiones in puncto atrocissimarum injuriarum contra Nobiles immediate ihre primam instantian vor das Königl. Hoff-gericht haben, und dahin remittiret werden sollen).49 The Court’s interpretation is questionable, however, because the Land Court Ordinance actually stated that the cases of the nobility should be examined in a lower court, which then was to send the documents to the appeals court for decision. The question on the forum superioris was discussed also in the case of aggravated assault at the Pernau Lower Court (1690, Johan Christoff Beneck v Lieutenant Caspar Haacken). Advocate Weisensee, on behalf of Haacken asked the Court that ‘Mr. Beneck would let [Weisensee’s client] free from this court, protesting against this semel pro semper, and asked Mr. Beneck to turn to the Court of Appeal with his charge, insofar as he does not wish to give it up’ (… daß Mons. Beneck Ihn alß einen von adell vor dieses preißl. Königl. Landgrt in dieser sache schleppen will, dawieder protestiret Er semel pro semper, und bittet Ihn mit seiner Klage, wo Er nicht acqviesiren will, an das Königl Hoffgericht verweisen …). The Court voted on the matter, with assessor Harnisch stating as his opinion (sentiment): … alß kan solchem nach des H. Lieutn: Haack petitum, daß diese sache anietzo schon nachm Königl. hoffgrt solte remittiret werden, keine statt finden, besondern aller, erst nach geschehener Inqvisition, alß dann die acta ad forum superius zur decision hingehen …

It was thus, for Harnisch, the lower court’s task to inquire (Inquisition) into the case, and then send the file to the appeals court for decision. President von Anrep and Judge von Ceumern, however, thought that the case had

48  P. Oestmann, Artikelprozess, in: Handwörterbuch zur Deutschen Rechtsgeschichte, vol. 1, Berlin, 2005, col. 313–314. For an authority of the gemeines Recht on the procedure by articles, see G. W. Wetzell, System des ordentlichen Zivilprozesses, Leipzig, 1874, pp. 23, 45, 70–71. 49  Pernau 1688, f. 95–109. Actor officiosus Philipp Schirm v Johann Grake, Mortiz Bretholz and their wives. Schirm charged the wives of Grake and Bretholz for fighting in church.

368

H. Pihlajamäki

been brought to court in such an immature phase that it was up to the plaintiff first to specify his claims before the trial could continue.50 In another case at Pernau Lower Court in 1688, actor officiosus Philipp Schirm brought charges against Johann Grake, Mortiz Bretholz and their wives. Schirm charged the wives of Grake and Bretholz with fighting with each other in church. The husbands were summoned only because they were their legal guardians. In his exceptio, Bretholz identified three problems related to the correct forum. First, according to the Consistorial Order § 8, all cases of alleged violence in church belonged to the consistorial courts. Second, the name of his wife had not been mentioned in any of the official court documents (weder in supplica noch Citatione ihren Nahmen benennet …). Bretholz argued that although he should represent his wife as her legal guardian (ehelicher Vormund und Paterfamilias), he ought not to be charged for the crime. And third, were he nevertheless charged for slander, as Graken’s writings to the court seemed to imply, the right forum should then be the appeals court as forum privilegiatum for the nobility. The Court found Bretholz’s exceptio fori declinatoria correct and advised Schirm to redirect his charges to the consistorial court.51 To sum up, questions regarding the correct judicial venue were important all through the Swedish era. This may have been partly because it was not always easy for the different courts to delineate their jurisdiction in relation to each other. After all, the Swedes created the whole judiciary from scratch upon the conquest in the 1620s. The situation of unclear jurisdiction was probably sometimes also exploited by lawyers, although it is difficult to point to clear examples. The argument about forum domicilium also appeared. The advocate of J­ohann Lorentz Hammerin answered the civil charge against his client by claiming that Lorentz ‘did not belong under the Royal Land Court of Pernau’. Therefore the plaintiff had to take the case to the Dorpat Court, which was where Lorentz resided, ‘because the plaintiff has to follow the forum of the defendant’.52 50  … so wohl alß im Klag-Libell selbst Kläger wieder beKlagten keine ordenrl. Klage geführet, noch selbe directè auf Ihn gerichtet, sondern bloß ein Zeugen Verhör, und zwar da noch keine ordentle. Klage angestellet, oder lis contestiret, sie gerichtl. aufnehmen zu laßen intendiret, und solches gantz contra formalitem Processus …, Pernau Land Court 1690, f. 565–566. 51  Pernau Land Court 1688, f. 97–98, 109. 52  Insondertheit aber muß ich meine schutz wehre in vim declinatioria wieder die citation bey bringen, daß ich unter das Königl. Landgrt Pernauschen Creyses nicht gehöre, sondern jure domicili dem Königl. Landgrt.Dorptschen Creyses, dahin auch vermeinte Kläger, dafern sie mir und meinen bruder des anspruchs nicht erlaßen



The Appeals Court of Dorpat in the seventeenth century369

Sometimes the procedural claims were extremely formal in character and clearly intended only to stall the proceedings. In the case of Fiscal Philipp Schirm against Johann Grake and others the defendants claimed that the citation did not mention their names, thus causing ‘a lack of an important prerequisite’. In the same case, the defendants also claimed, in their exceptio, that all iniuria cases against members of the nobility belonged to the Court of Appeal of Dorpat53 – in which of course they were correct. 3. The revision procedure The Swedish crown exercised no systematic control over its appeals courts in the seventeenth century. The only remedy against appeals court decisions in criminal cases was mercy. In civil cases, those involving ‘land, things and money’ (jord, gods och penningar), another extraordinary legal remedy called beneficium revisionis stood nevertheless at the disposal of a party dissatisfied with an appeals court decision. Although the theoretical difference between criminal and civil cases was still in the seventeenth century not always clear,54 as a practical rule the courts held on to the distinction.55 The beneficium was the logical result of a political system, in which the king remained theoretically in possession of all judicial power, although he had delegated substantial parts of it to the appeals courts. Revision was regulated in the Hofgerichtsordnung (§ 35) and the Royal Resolution of 1634 (Königliche Resolution vom 6. August 1634; § 4).56 Revision cases were decided in the Council of the Realm (riksrådet), either in its plenary session or in a special section called the Judicial Revision (justi­ tierevisionnen) or Higher Revision (övre revisionen). The Lower Revision, in turn, consisted of the administrative entity preparing the cases for revision.57 The model for the institution of revision came from Germany, where in the sixteenth century for ‘non-appealable’ cases a ‘supplication’ or ‘revision’ could still be sought from the territorial prince. If revision was granted, it wollen, mit der Klage billig folgen sollen, cum indubitate Iuris sitm qvod actor seqvatur forum Rei … , Pernau Land Court 1688, f. 202. 53  Pernau Land Court 1688, f. 98–99. 54  J. Sundin, För Gud, staten och folket: Brott och rättskipning i Sverige, 1600– 1840, Lund, 1992, pp. 412–413. 55  R. Thunander, Hovrätt i funktion: Göta hovrätt och brottmålen, 1635–1699, Lund, 1993, pp. 280–281. 56  For details of the revision procedure, see Friedrich Georg von Bunge, Geschichte des Gerichtswesens und Gerichtsverfahrens in Liv-, Est- und Curland, Reval, 1874, pp. 245–249. 57  W. Uppström, Öfversigt af den svenska processens historia, Stockholm, 1884, p. 104.

370

H. Pihlajamäki

was based on a review of the acts (Revision der Akten), without a new oral hearing.58 Another variant of the revision procedure emerged as an intermediary phase before the Resolution of 1634. The decisions of the appeals courts operating in the duchies and the provinces (thus, the Courts in Dorpat, Turku and Wismar) could be revised at the Svea Court of Appeal. The court against which the revision was directed would send a delegation to Stockholm in order to defend the appeals court’s decision at the Svea Court. Sometimes members of the Privy Council (riksrådet) could act as arbitrators between the Svea Court of Appeal and the other appeals courts. This procedure seems, however, to have been an intermediary phase only. After the Svea Court of Appeal consolidated its place within the Swedish court hierarchy and the revision as a sort of a highest instance was fixed in the Resolution of 1634, the position of the Svea Court as primus inter pares of the appeals courts began to mean less and less.59 The appeals courts had to be represented at the Revision – a duty about which the Court of Appeal of Dorpat bitterly complained. In a letter to the King in 1636, the Court asked to be excused from the duty of sending its representatives to Stockholm in connection with revision cases. The Court argued that the Appeals Court Ordinance said nothing of such a duty, and it – the appeals court judges allude here clearly to the practice of corresponding appeals courts in other countries – was ‘nowhere in use’ (nirgends bräuchlich). The judges argued that they did enough to fulfill their office, when they heard the case, wrote the judgment and pronounced it; the judges should not be bothered with anything else. Whatever else might be necessary could be taken care of 58  Chr.

Fr. Koch, Preussische Civil-Prozess, Berlin, 1855, p. 66.

59  S. Petrén, Kring Svea hofrätts tillblivelse, in: Svensk Juristtidning, 1945, pp. 171–

184; S. Petrén, Hovrättens uppbyggnad, 1614–1654, in: S. Petrén/S. Jägers­ kiöld/ T. O. Nordberg, Svea hovrätt: studier till 350-minnet, Stockholm, 1964, pp. 3–117, 3–45; R. Tuchtenhagen, Zentralverwaltung, p. 132. Tuchtenhagen claims that this in fact led to a three-tier system of appeals instances (Council of the Realm, Svea Court of Appeal and the other appeals courts) during the second third of the seventeenth century, and this system would have then persisted until the early nineteenth century. This interpretation may go too far, though, and does not get support from what still remains the major archival study on the subject, Petrén, Hovrättens uppbyggnad, 1614–1654. According to Petrén, the Councillors (who often were at the same time appeals court judges) did take part in deciding revision cases, especially during the king’s absences abroad. At times, Svea judges decided, on revision, cases they had previously decided at the appeals court. This, however, came to an end during Axel Oxenstierna’s time in the 1640s. The practice, initially linked to the unclear judicial hierarchy, ended as revision procedures were better organized from the mid-century onwards, culminating in the founding of the Supreme Court in 1789. Thus the fact that the Svea judges took part in revision procedures in some cases did not elevate the court above the others in the hierarchy either de facto, or formally.



The Appeals Court of Dorpat in the seventeenth century371

in writing. The judges of the Court also maintained that the office-holders of the Court lived far apart from each other, many of them having to fulfil more than one office, and besides the Court was far away by both water and land (zu Waszer vnd lande weit entlegen) which made trips to Stockholm expensive. All this tended to diminish the authority of the Court. The Court also reminded the crown that revision procedures should be based on the appeals court case files alone, so that ‘no new allegations, documents and evidence’ be added. If these be allowed, revision would turn into appeal. According to the Court, the reason to ‘cut further appeals from the appeals courts to the crown’ had been precisely this: ‘to amputate the legal cases, liberating the Realm of that dangerous, gloomy plague of commonwealths’.60 The practice of sending appeals court delegates to present revision cases in Stockholm caused, again, a clash between two legal cultures: the European learned ius commune and the Swedish unlearned law. The practice was undoubtedly cumbersome and expensive, but the Dorpat judges seem also genuinely unconvinced about the benefits of the system, the kind of which was ‘nowhere in use’. Parties had no absolute right to have their case reviewed. According to the Legal Procedure Ordinance of 1615 (Rättegångs-Process), the king granted beneficium not ‘through an appeal but through a petition for mercy’ (genom något vädjande utan genom ödmjuk böneskrift). In practice, though, revision gradually came to be understood as more or less a right as the petitions became a mass phenomenon. The increase in their number also gave rise to discussions on how to institutionalize their handling.61 The need to institutionalise the legal institution of revision that had grown in practice led to the Statute on the Revision of Legal Cases of 1662. Even though the procedures were now formalized in the letter of the law, revision was according to the statute still not intended as a regular appeal or ‘some new instance’. Instead, it was only an examen actorum prioris instantiae. No new documentary evidence was allowed, although the statute did allow for a new hearing (afdömda akters öfverseende och nogare förhör). Unlike in appeal, no new arguments were allowed either. If neither of the parties asked for revision, the appeals court decision was left intact. The crown’s control was thus passive, a kind of ‘institutionalized feed-back’.62 60  Damit die lites amputiret, Vund das Reich von denselben alsz einer gefehr­lichen grausamen Peste Rerumpublicarum liberiret werde, letter of the Court of Appeal of Dorpat to the king, 7 July 1636: P. Wieselgren (ed.), Samlade skrifter av Georg Stiern­hielm, 3:2, pp. 372–376. 61  R. Thunander, Den svenska hovrätten i 1600-talets rättsliga system, Scandia, 2008, pp. 21–28, 23. 62  Thunander, Hovrätten, p. 23.

372

H. Pihlajamäki

As the letter of the Court of Appeal of Dorpat, referred to above, suggests, the pressures to treat revision as appeal had been present from early on. In practice and in spite of the 1662 Statute, revision came to resemble a regular Roman-canon appeal more and more as time passed.63 Arguments were even tolerated if the party claimed that they had not been able to present them at an earlier stage – which Almquist calls ‘a Swedish modification of the strict rules of the … Roman-canon procedure’.64 Although a thorough, archive-based study on the seventeenth-century appeals and revision procedures in Sweden is still lacking, Almquist’s characterization sounds intuitively correct. A working Roman-canon appeals system with strictly enforced preclusion rules does not work without a sufficient amount of legal learning at all levels of the judicial system: learned lawyers as judges to enforce the rules and learned advocates as watch-dogs. These were still largely lacking in seventeenth-century Sweden, which probably led to a rather lax attitude towards strict preclusion rules.65 It is also difficult to see whose interest strict rules of preclusion would have served. When the Procedural Rules for the Court of Appeal of 1615 were being drafted, the drafters still thought that the royal appeals court would take most (if not all) of the king’s judicial business. This soon proved far from realistic as revision petitions started to pour into the Royal Chancery. In the second half of the century, it was certainly in the crown’s interest not to be too selective as to the cases allowed for revision, if a realm-wide uniformity of legal practice was to be striven for. A logical step in the development was the requirement of the Form of Government of 1772 that the members of the Higher Revision have judicial experience. In 1789 the Higher Revision was then reorganized and renamed the Supreme Court.66 From the Livonian revision cases little has remained in the Swedish State Archives.

63  Uppström,

Öfversigt, p. 104. kan sägas vara en svensk modifiering av den recipierade tysk-romerska processens stränga regler. See J. E. Almquist, Svensk rättshistoria I. Processrättens historia, Stockholm, 1961, p. 55. 65  J. A. Posse, Bidrag till Svenska lagstiftningens historia från slutet af sextonde århundradet till stadfästelsen af 1734 års lag, Stockholm, 1850. Only from 1772 onwards were the members of the Appeals Revision required to have ‘judicial experience’, and even this did not mean that they needed to have legal education. More than anything, the members were chosen for political reasons. To be sure, by the late eighteenth century the Lower Revision already had legal expertise in its ranks. 66  Uppström, Öfversigt, pp. 104–105. For the practise of the Revision during the two last decades of the seventeenth century, see B. Wedberg, Karl den XII på justi­ tietronen, Stockholm, 1944. 64  Detta



The Appeals Court of Dorpat in the seventeenth century373

From the years 1632–1647, twelve (mostly very incomplete) case files remain. Nine of them have to do with the Court of Appeal at Dorpat and, interestingly, three with Oxenstierna’s private court in Wenden.67 For 1648– 1652 six cases remain,68 and for 1653–1659 also six.69 Supplicants from other Livonian and Baltic jurisdictions were much more active: for instance, we have five cases from Ösel and seven from Riga – neither of which belonged to the jurisdiction of the Dorpat Court of Appeal. These numbers are naturally not statistically reliable, but they indicate the quantity more or less, especially when compared to other material. A register of the Justice Revision for the years 1670–1672 also exists in the archive, and it is probably more reliable as to the quantities of revision cases coming from different appeals courts. Most of the cases came from the Svea Court of Appeal. For the three years in question there are fifty cases from Svea, twenty from Dorpat and two from Turku. For the sake of comparison, eleven cases came from the Göta Court of Appeal and twelve from Riga. In addition to these pieces of information, the collection of royal letters in the archive of the Dorpat Court of Appeal includes the petitions (compulsoriales) by way of which the Revision asked the Court to provide it with the documents of individual cases in which beneficium revisionis had been granted. The amount of these is roughly in line with other information that we have. Thus, in 1680 the Court was asked to send the documents in three cases, in 1681 in one case, in 1683–84 in five cases, and in 1685 in five cases. To sum up, it seems that no more than a few revision cases originated from the Dorpat Court of Appeal each year. Appeals courts were always notified of the decisions in revision cases. It is interesting to note that in several cases the parties reached consensus at the Revision, which then confirmed the agreement. Revision being the last possibility of putting judicial pressure on the opponent and all remedies having been exhausted, both parties probably at least sometimes felt the need to avoid a complete loss of the case, and to reach a settlement instead.70

67  Livländska

hovrätten till K. Maj:t 1630–45 (Liv. II. 101). II: 724, Rättegångshandlingar 1648–1652 (Handlingar tillhörande justitiaerevisionens arkiv). 69  Livonica: II: 725, Rättegångshandlingar 1653–1659 (Handlingar tillhörande justitiaerevisionens arkiv). 70  Fabian Wrangell von Uchteen och Öfverwerstlieutenanten Reinholt Johan von Fersen nu enteligen hafwa sigh förenat uti den långsliga strijdigheet, som de sinsemellan hafwa fördt, så att de derom medh hwarandra för in för Wår Revision hafva ingådt en wänlig förlijkning, som Wij och medh War Nådige Confirmation hafwa bekräft, f. 300: 31.8.1684, LVA, 109/1/13. See also f. 441 (21.4.1686). 68  Livonica:

374

H. Pihlajamäki

Conclusions The founding of the Dorpat Court of Appeal was a conscious step by the Swedish Crown to establish its authority in the new over-seas province, which was in disastrous shape after the many wars preceding Swedish rule. The new appeals court was only part of the whole new design of the judiciary, the basic features of which were roughly copied from Sweden proper. A network of appeals courts was just beginning to be established in Sweden. The Court of Appeal of Svea was the first of these, and others followed in due course. It was only logical that an appeals court was founded in Livonia as well. Without such a court, any attempt effectively to unify or supervise the legal developments in the province would have been futile. The unification also worked in practice. The clearest example of this is how the problems that the Appeals Court faced with the two patrimonial courts of Wenden and Pernau during the first couple of decades of Swedish rule were quite soon overcome. The Dorpat Court of Appeal not only acted as an appeals instance over the local lower courts. Through the extraordinary remedy of beneficium revisionis exercised by the crown, the Court’s decisions could sometimes be changed. Although this remedy was used relatively little because of its costliness, one may think that the mere existence of the remedy caused the Appeals Court to consider the possibility that its decisions could be reviewed in Stockholm. The Court sometimes also actively asked the crown for an interpretative opinion through a kind of a référé legislatif. Although ties to the royal government were thus established, and the formation of the Livonian judiciary followed rather closely the model of Sweden proper, important differences were allowed for from the beginning and persisted until the end of Swedish rule. The different social and economic conditions made it impossible to let the Livonian peasantry take an active part in the lower courts, such as the Swedish peasantry had done for centuries. Instead, the Livonian lower courts were first and foremost courts of the nobility. The judges were noblemen, and peasants only appeared in these courts when charged with serious crimes or as witnesses. The less serious crimes and civil cases of the peasants were handled by manorial courts, which did not exist at all in Sweden proper. A significant difference between Livonia and Sweden proper had to do with the legal sources. Ius commune was slowly making its way into Swedish law through the newly established appeals courts, staffed by trained jurists. The impact of European influences was, however, traditionally much more important in Livonia, where trained lawyers, with cultural ties to Ger-



The Appeals Court of Dorpat in the seventeenth century375

many, dominated the scene. The Swedes took this realistically into account, and they allowed the use of not only local Livonian sources but also the ius commune in the courts, alongside Swedish statutory law. In practical legal life, however, Swedish law never gained an important position in Livonia. The Appeals Court, nevertheless, proved a lasting legal transplant, as it continued its operations as the Livonian Court of Appeal even after the Swedish overlords had given way to the Russian conquerors in the early eighteenth century. Bibliography Almquist, J. E., Svensk rättshistoria. I. Processrättens historia, Stockholm, 1961. Buddenbrock, J., Sammlung der Gesetze, welche das heutige livländische Landrecht enthalten. Zweiter Band: Aeltere hinzugekommene Landesrechte. Erste Abteilung: Landesordnungen vom Jahr 1621–1680, Riga, 1821. Dundorfs, E., Der Grosse Kataster in Livland, 1681–1710, Stockholm, 1950. Glenn, H. P., On Common Laws, Oxford, 2007. Kahk, J., Bauer und Baron im Baltikum: Versuch einer historisch-phänomenologischen Studie zum Thema ‘Gutherrschaft in den Ostseeprovinze’, Tallinn, 1999. Koch, Chr. Fr., Preussische Civil-Prozess, Berlin, 1855. Korpiola, M., ‘A Safe Haven in the Shadow of War? The Founding and the Raison d’être of the New Court, Based on its Early Activity’, in: Korpiola, M. (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Stockholm, 2014, 55–108. Liljedahl, R., Svensk förvaltning i Livland, 1617–1634, Stockholm, 1933. Meurling, A.Chr., Svensk domstolsförvaltning i Livland, 1634–1700, Lund, 1967. Oestmann, P., ‘Artikelprozess’, in: Cordes, A. et al. (eds.), Handwörterbuch zur Deutschen Rechtsgeschichte, Vol. I, Berlin, 2005, cols. 313–314. Palli, H., ‘Miks eestlased jäid püsima’, Keel ja kirjandus, Vol. 7, 1995, 475–483. Petrén, S., ‘Kring Svea hofrätts tillblivelse’, Svensk Juristtidning, 1945. Petrén, S., ‘Hovrättens uppbyggnad, 1614–1654’, in: Petrén, S./Jägerskiöld, S./Nordberg, T. O., Svea hovrätt: studier till 350 – årsminnet, Stockholm, 1964, 3–117. Petrén, S., ‘The Reform of the Swedish Judiciary under Gustavus Adolphus’, in: Forkosch, M. D. (ed.), Essays in Legal History in Honor of Felix Frankfurter, Indianapolis, 1966, 263–274. Pihlajamäki, H., ‘The Court of Appeal as Legal Transfer: The Svea and Dorpat Courts Compared’, in: Korpiola, M. (ed.), The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives, Stockholm, 2014, 217–260. Posse, J. A., Bidrag till Svenska lagstiftningens historia från slutet af sextonde århundradet till stadfästelsen af 1734 års lag, Stockholm, 1850.

376

H. Pihlajamäki

Runeby, N., ‘De fyra stånden’, in: Eriksson, J./Skrutkowski, M. (eds.), Den svenska historien. 4: Gustav Adolfs och Kristinas tid 1611–1654, Stockholm, 1978, 38–44. Schulze, W., ‘Die Entwicklung des “deutschen Bauernrechts” in der Frühen Neuzeit’, Zeitschrift für Neuere Rechtsgeschichte, Vol. 12, 1990, 127–163. Soom, A., Der Herrenhof in Estland in 17. Jahrhundert, Lund, 1954. Sundin, J., För Gud, staten och folket: Brott och rättskipning i Sverige, 1600–1840, Lund, 1992. Tering, A., Über die Juristenausbildung der Mitglieder des Hofgerichts in Dorpat (Tartu), 1630–1710, Tartu, 1989. Thunander, R., Hovrätt i funktion: Göta hovrätt och brottmålen, 1635–1699, Lund, 1993. Thunander, R., ‘Den svenska hovrätten i 1600-talets rättsliga system’, Scandia, Vol. 61(1), 2008, 21–28. Tuchtenhagen, R., Zentralstaat und Provinz im frühneuzeitlichen Nordosteuropa, Wiesbaden, 2008. Uppström, W., Öfversigt af den svenska processens historia, Stockholm, 1884. von Transehe-Roseneck, A., Gutsherr und Bauer in Livland im 17. und 18. Jahrhundert, Straßburg, 1890. Wedberg, B., Karl den XII på justitietronen, Stockholm, 1944. Wetzell, G. W., System des ordentlichen Zivilprozesses, Leipzig, 1874. Wiegand, W., Studien zur Rechtsanwendungslehre der Rezeptionszeit, Edelsbach, 1977. Wieselgren, P. (ed.), Samlade skrifter av Georg Stiernhielm. Tredje delen: Brev och inlagor, Första Bandet, Stockholm, 1937. Wijffels, A./Van Rhee, C. H. (eds.), European Supreme Courts: A Portrait through History, London, 2013.

A. WIJFFELS

The supreme judicature in the Habsburg Netherlands 1. Political context As a historical periodisation, the ‘Habsburg Netherlands’ refers to the political regimes in the personal union of the Low Countries starting in 1477 or 1482. The period of the Spanish Habsburg Netherlands may be understood to begin either in 1506, in 1515, or (the most conventional date) in 1556. For the Northern Netherlands, the Habsburg rule was formally ended in 1581, when those territories became the self-proclaimed Republic of the United (but individually sovereign) Provinces. For the Southern Netherlands, the Spanish rule continued until the aftermath of the Spanish war of Succession, when the Peace Treaty of Utrecht (1713) transferred the territories’ sovereignty to the Austrian Habsburgs. The Southern Netherlands lasted as the ‘Austrian Netherlands’ until 1795–1797, when they were incorporated into the French Republic. In the present contribution, Habsburg Netherlands refers to the territories which were under Habsburg rule from the late fifteenth century until the end of the eighteenth century. The Netherlandish territories under Habsburg rule varied over the centuries. Towards the end of the fifteenth century, they covered a large part of the present-day Benelux countries and part of today’s Northern France. By the end of the sixteenth century, the Northern territories (approximately the present-day Netherlands) had seceded from the personal union. During the seventeenth century, in particular during the wars of ­Louis XIV, the Habsburg Netherlands lost important territories on their southern edge. What remained under Habsburg rule was a prefiguration of the later kingdom of Belgium, although parts of present-day Belgium (most importantly, the ecclesiastical principality of Liège) were not integrated into the Habsburg Netherlands. From the Burgundian regime until the end of the Austrian Netherlands, the Netherlands which were subjected to and stayed under Habsburg rule remained a personal union. However, the Burgundian dukes and Charles V established and developed a number of central institutions with governmental, administrative, judicial and financial tasks for the whole union, most of which lasted until the end of the Ancien Régime.1 The Pragmatic 1  For a general survey, providing reliable separate entries for each central institution: E. Aerts et al. (eds.), Les institutions du gouvernement central des Pays-Bas

378

A. Wijffels

Sanction of 1549 imposed a uniform system of dynastic succession in all the provinces of the union, so as to ensure that these provinces (in so far as they remained under the Habsburg regime) would always be governed by the same ruler. A system of supreme judicature in the Habsburg Netherlands was established under the dukes of Burgundy and developed during the early period of the Habsburg rule. It remained, without too many substantial changes, in place until the end of the Ancien Régime. An attempt to reform the whole system was made in 1787 by Joseph II, but, in the face of political opposition, without success.2 The French revolutionary regime extended its own new courts’ system (which had largely made tabula rasa of the old regime’s system in pre-revolutionary France) as soon as it had annexed the Belgian territories.3 On the eve of the French occupation, the system of higher and supreme courts which had developed and been established during the second half of the fifteenth century and the first half of the sixteenth century could still easily be recognized in the system functioning in the second half of the eighteenth century.4 2. The Ancien Régime’s multi-layered system of public governance and courts As in many other, if not most, European jurisdictions, the organisation of courts before the advent of the modern nation-state did not express a consistHabsbourgeois (1482–1795), 2 vols., Brussels, 1995 (this is the French translation of the original Dutch version). 2  See the entry ‘Conseil Souverain de Justice (1787)’ by K. Van Honacker in: E. Aerts et al. (eds.), Les institutions du gouvernement central, vol. 1, pp. 463–469 (incl. bibliographical references). 3  On that period in general: H. Hasquin (ed.), La Belgique française, 1792– 1815, Brussels, 1993 (also available in a Dutch version); specifically on the courts: Justice et institutions françaises en Belgique (1795–1815), Traditions et innovations autour de l’annexion. Actes du colloque tenu à l’Université de Lille II les 1, 2 et 3 juin 1995, s.l., 1996. 4  A striking example is the eighteenth-century edition of relevant statutes for proceedings before the Great Council of Malines: Ordonnances, statuts, stile, et maniere de proceder, faits et decretez par le roi Don Philippe II. pour son Grand Conseil Le 8. d’Août 1559. Avec les Eclaircissemens sur lesdites Ordonnances émanés du même Conseil. L’Institution d’icelui, par le Duc Charles de Bourgogne en l’an 1473. Celle de l’Archiduc Philippe du 22. Janvier 1503. & l’Ordonnance par l’Empereur Charles V. du 26. Octobre 1531. Nouvelle Edition augmentée de plusieurs Ordonnances & Reglemens jusques à l’An 1719, Brussels, 1721. The title and table of contents show that even eighteenth-century practitioners were deemed to refer to some of the sixteenth-century statutes, in particular the ordinance of 1559 which was never superseded by any later general statute.



The supreme judicature in the Habsburg Netherlands379

ent system of homogeneous courts. Before the development, during the early modern period, of a paradigm of exclusive sovereignty, several centres of power within a polity or territory enjoyed their own legitimacy in the exercise of public governance. Under this regime of competing sovereignties, various social groups could act as lawmakers in their own right. Local and regional customs, or statutes, are the prime examples of the effects of such a multi-layered public governance. These local and regional laws were not only buttressed by particular local and regional authorities acting as lawmaking and executive bodies, the administration of justice was also their prerogative and arguably the main instrument in ensuring that the particular law was implemented and further developed through legal practice. This was particularly true in the late-medieval Low Countries, which, as regards the general features of legal pluralism, show many similarities with the situation in the northern French pays de coutumes.5 Thus, the Netherlandish territories were characterized by a multitude – at least several hundred – of local and regional customs,6 mostly defined ratione loci (and sometimes overlapping), but also ratione rei (the same real property, for example, could be governed by different legal principles depending on whether it was envisaged as a fief, a tenure or an allod), ratione personae, and so on. At each level of that legal fragmentation, the specific custom would normally be applied by a corresponding specific judicial authority (which, at a time when police and justice were not subject to an institutional separation, was often also an executive agent): the Ancien Régime’s legal complexity was matched by a correlative jurisdictional complexity. Because the local and regional authorities in many cases represented what were to a large extent self-governing communities, their decisions were originally most often given in first and last instance. In this state of development of adjudication, the notion of supreme or sovereign courts did not arise. The ecclesiastical system of courts, which also covered the Low Countries and added to the jurisdictional pluralism, was different, since it had a hierarchical structure with appeal proceedings borrowed from the procedural models found in Justinian’s compilations. In the Netherlands, in contrast to the otherwise similar French pays de coutumes, until the ascendancy of the Burgundian rule, there was no political force comparable to that of the king of France and his gradual control over local and regional administration of justice. In the late-me5  For the Southern Low Countries, the standard work is Ph. Godding, Le droit privé dans les Pays-Bas méridionaux du 12e au 18e siècle, Brussels, 1987. 6  J. Gillissen, La rédaction des coutumes en Belgique aux XVIe et XVIIe siècles, in: J. Gilissen (ed.), La rédaction des coutumes dans le passé et dans le présent, Brussels, 1962, pp. 87–111; idem, Les phases de la codification et de l’homologation des coutumes dans les XVII Provinces des Pays-Bas, in: Tijdschrift voor rechtsgeschiedenis, 18, 1950, pp. 36–67 and 239–290.

380

A. Wijffels

dieval principalities of the Netherlands which were in theory or effectively subjected to the French Crown (the counties of Flanders and Artois, and the Tournaisis), appeals from the local and regional courts to the Parliament in Paris were precisely one of the distinctive expressions of the French king’s political suzerainty.7 In the late Middle Ages, most of the courts in the Low Countries which the majority of people might have been acquainted with were therefore linked to particular, especially local, communities and were staffed by laymen who were also the day-to-day administrators of those communities, whether rural or urban. In addition, various special interests courts existed, with their own particular jurisdiction. Only the ecclesiastical courts had a developed hierarchy and were staffed by professional judges, who were trained in law. These various networks of particular courts remained on the whole in place until the French annexation brought the era of the Habsburg Netherlands to an end. 3. The territorial prince’s higher courts As in other countries, the last centuries of the Middle Ages saw the development of the administration of justice by the territorial princes who had succeeded in establishing a stable principality. The most important of those principalities in the core area of the Low Countries were the duchies of Brabant and Luxemburg, the counties of Artois, Flanders, Hainaut, Namur, Zeeland and Holland, and the ecclesiastical principalities of Liège, Tournai and Utrecht. Malines was a small enclave in the duchy of Brabant. Other territories, more peripheral to these core principalities, were joined to the personal union of the Netherlands, especially during Charles V’s reign, building the largely notional complex unity often referred to as the ‘XVII Provinces’,8 and occasionally represented by cartographers as a Leo Belgicus. Cartographers would routinely refer in Latin to that complex unity (and adjacent territories) as Belgium, or Germania inferior.9 7  R. C. van Caenegem, Les arrêts et jugés du parlement de Paris sur appels flamands conservés dans les registres du parlement, Brussels, 1986; S. Dauchy, De processen in beroep uit Vlaanderen bij het Parlement van Parijs (1320–1521): een rechtshistorisch onderzoek naar de wording van staat en souvereiniteit in de Bourgondisch-Habsburgse periode, Brussels, 1995. 8  Not only represented on maps or referred to in various publications, but occasionally also in the pictural arts, e. g. Pieter Claeissens the Younger (ca. 1540–1623), ‘Allegory of the 1577 Peace in the Low Countries’ (1577 Oil on oak panel, 159 x 198cm, Groeninge Museum, Brugge). 9  H. de Schepper, Belgium Nostrum, 1500–1650: over integratie en desintegratie van het Nederland, Antwerp, 1987.



The supreme judicature in the Habsburg Netherlands381

The dukes of Burgundy, and later the first Habsburg rulers, inherited and developed in the Netherlandish territories they acquired a more or less established administration of the prince’s (i. e., mostly, the duke’s or count’s) governance in his principality, which would entail a court and a network of agents. By that time, most principalities had their distinct princely court of justice. These courts administered justice in the name of the duke or count, were increasingly staffed by university-educated lawyers,10 and exercised their jurisdiction for the whole principality both in first-instance proceedings (usually as a privileged forum – see below) and in appeal proceedings. The emergence and further development of princely courts in the different principalities would remain an important feature of the early modern Habsburg public governance in the Low Countries. Usually, these courts were also associated with other, executive tasks, such as the publication of the prince’s ordinances. They became increasingly professional bodies where lawyers with a university law degree prevailed: not only among the judges, but also among the auxiliaries such as the advocates, and sometimes also the proctors.11 For several of these courts, the organisation and procedures were governed by more or less elaborate ordinances (specific to each court), but each court was keen to develop and retain its own unwritten ‘style’ of procedure. Although the statutes and style differed from court to court, their procedural law was essentially based on late-medieval and early modern principles and learning of the general model of Roman-canonical procedure. The learned and professional legal culture of the princely courts presented therefore, certainly during the first centuries, a stark contrast with the legal culture in the local courts of closest local proximity, with their lay administrators acting in a judicial capacity, their oral proceedings in the local vernacular, focused on local particular statute and customary laws, and practitioners who had not been trained in a law faculty. When the appellate jurisdiction of the princes’ courts developed, appeal procedures reflected the contrast of legal cultures, as, while pursuing an appeal in the same case, the litigants were 10  The first university in the Low Countries was a comparatively late foundation, viz. Leuven in 1425. The university included from the start a faculty in civil law and a faculty in canon law, see L. Waelkens et al., The History of Leuven’s Faculty of Law, Bruges, 2014. The foundation was an important factor in training law students who after graduation held posts in the administration of justice and public governance. Before (and for several more generations afterwards), aspiring law students went on a peregrinatio academica abroad, especially in France and Italy. 11  A. Wijffels, Procureurs et avocats au Grand Conseil de Malines, in: L’assistance dans la résolution des conflits, Recueils de la Société Jean Bodin pour l’histoire comparative des institutions, 64, 3e partie, 1997, pp. 163–187; for Flanders: G. Martyn, De advocatuur in het oude graafschap Vlaanderen, in: G. Martyn/G. Donker/S. Faber/ D. Heirbaut (eds.), Geschiedenis van de advocatuur in de Lage Landen, Hilversum, 2009, pp. 13–36.

382

A. Wijffels

henceforth confronted at the appeal stage with a written procedure, administered by practitioners and councillors with an academic legal background, increasingly referring to the technicalities of ius commune authorities and learning.12 With the passing of time, the legal-cultural gap between lower courts and appellate courts may have been attenuated (as more practitioners who had had some experience of a university legal education were seeking occupations in the lower courts), probably at a quicker pace and more intensively in urban than rural jurisdictions, but the different layers of courts continued nonetheless to reflect different cultures, interests and political models of governance. In any case, a two-tier system of courts within each principality, with a local first-instance court and a provincial appellate court, had become an established feature of the administration of justice by the end of medieval times.13 The relative importance of those provincial courts differed from one province to another. The Council of Brabant’s jurisdiction covered (even when the northern part of the duchy was permanently occupied and severed under the military and administrative rule of the United Provinces’ Estates General) a comparatively densely populated and economically significant territory, and that was reflected in its self-conscious assertiveness as both a judicial body and political actor, a position strengthened by its strong particular constitutional status and tradition, and the presence of the central government’s palace and administrative offices in Brussels.14 Namur, by contrast, was a much smaller territory, with a smaller population including no comparably large cities such as Antwerp and Brussels in Brabant, and with much less economic and political clout.15 These differences are still reflected today in the surviving historical records of the provincial courts, 12  A. Wijffels, Qui millies allegatur, Les allégations du droit savant dans les dossiers du Grand Conseil de Malines (causes septentrionales, ca. 1460–1580), Rechtshistorische Studies, XI, 2 vols., Leiden, 1985. 13  A. Wijffels, Höchste Gerichtsbarkeit als Instrument der Friedenserhaltung in interterritorialen Konflikten: Der Große Rat von Mechelen in den burgundisch-habsburgischen Niederlanden, in: B. Diestelkamp/I. Scheurmann (eds.), Friedenssicherung und Rechtsgewährung. Sechs Beiträge zur Geschichte des Reichskammergerichts und der obersten Gerichtsbarkeit im alten Europa, Bonn, 1997, pp. 83–102. 14  R. Van Uytven et al. (eds.), De gewestelijke en lokale overheidsinstellingen in Brabant en Mechelen tot 1795, 2 vols., Brussels, 2000. On the Council of Brabant, see, in vol. 1 of that publication, pp. 147–161, the entry ‘Raad van Brabant’ by E. Put (incl. further bibliographical references). The standard work of reference, although dated, is A. Gaillard, Le Conseil de Brabant. Histoire – organisation – procédure, 3 vols., Brussels, 1898–1902. 15  C. Hénin/C. de Moreau de Gerbehaye (eds.), Les pouvoirs politiques du comté de Namur. Répertoire des institutions publiques centrales, régionales et locales, de l’an mil à 1795, vol. 2, Brussels, 2013, pp. 217–260.



The supreme judicature in the Habsburg Netherlands383

or through the legal literature the practice of those courts inspired during the Ancien Régime. 4. The Great Council of Malines Under the Burgundian rule, a third, superior, layer of judicature was developed.16 The ducal court, which was the overarching political body of the dukes’ personal union, was an itinerant body. It dealt with issues concerning the union as a whole, but also with matters specific to one or a few territories of the union. It was a governing body which supported the duke in his legislative, executive and judicial tasks. Gradually, during the first half of the fifteenth century, carrying out the judicial work within the court became the special business of councillors who were law graduates. Between 1435 and 1445, that specialised group evolved into a distinct institution from the court, referred to as the Great Council. Membership of the court and of the Great Council remained flexible, so that some office-holders could be found in both. The Great Council remained a satellite of the ducal court, and therefore itinerant, following the duke on his constant travels in his dominions. In 1473, the specific political situation and the ambitions of Duke Charles the Bold were decisive in establishing the Great Council as a ‘Parliament’ (in the sense that term was used in France, e. g. for the Parliament of Paris), i. e. a sovereign court, with a permanent seat in Malines. The institution was shortlived. In 1477, after Charles’s death at the siege of Nancy, many parts of the Low Countries threatened revolt and called for the restoration of their old liberties and privileges. The duke’s successor, Mary of Burgundy, was compelled that same year to accept the Great Privilege and the abolition of the Parliament, perceived as an instrument of the dukes’ centralizing policies.17 Thus, the judicial tasks of what remained of the personal union (Louis  XI had immediately occupied and taken control over the duchy of Burgundy upon Charles the Bold’s death) reverted to the pre-1473 situation, with an itinerant Great Council tagging along behind the court. The 1480s were a troubled period. Mary of Burgundy, in an attempt to regain control over the seditious situation on the domestic front and to mus16  On the early developments of the Great Council: J. Van Rompaey, De Grote Raad van de hertogen van Boergondië en het parlement van Mechelen, Brussels, 1973. For a general outline of the court’s history and its records: D. Leyder, Les archives du Grand Conseil des Pays-Bas à Malines (vers 1445–1797), Brussels, 2010 (including further bibliographical references). 17  W. P. Blockmans (ed.), Le privilège général et les privilèges régionaux de Marie de Bourgogne pour les Pays-Bas 1477. Het algemene en de gewestelijke privilegiën van Maria van Bourgondië voor de Nederlanden 1477, Kortrijk, 1985.

384

A. Wijffels

ter support against the threats of the king of France, had married Maximilian of Austria. She died in a hunting accident in 1482. The transition to Maximilian’s rule was overshadowed by civil strife and a perilous challenge to the prince’s authority. Habsburg rule was only firmly consolidated during the 1490s. The uncertain political situation during that transitional period was not favourable for the working of a court of justice and the business of the Great Council during those years seems to have been at low ebb.18 The consolidation of the regime, as well as practical considerations, may explain why in 1504, the Great Council was given a permanent seat, again in Malines. Except for periods of political insecurity and wars, the Council would remain in Malines until the end of the Austrian regime.19 The Great Council had a jurisdiction in original proceedings, as an appellate court, and as a court hearing cases on extraordinary procedural remedies. Its first-instance jurisdiction was applicable to various persons who could claim a privilegium fori, such as members and auxiliaries of the court, and several other privileged categories. First-instance proceedings20 could also be brought before the Council on various grounds related to the sovereign’s interests and public policy: for example, in cases involving a dispute around a statute or other official act issued by the sovereign, the sovereign’s property or public domain, some possessory actions. There was no clear-cut or comprehensive catalogue of cases which could be brought before the Council in original proceedings. The appellate jurisdiction21 mostly served to challenge the decisions of the provincial courts. This meant either second-instance proceedings (if the original proceedings had been pursued before the provincial court, or third-instance (i. e. second-appeal) proceedings, if the provincial court’s decision had been given in appeal proceedings against the judgment of a lower court. Inevitably, there were exceptions: for some lower courts, e. g. in some areas where the jurisdiction of the province (and hence that province’s appellate court) was disputed by another province, appeals 18  A. J. M. Kerckhoffs-de Heij, De Grote Raad en zijn functionarissen, 1477– 1531, Amsterdam, 1980; to which is added a twin volume: De Grote Raad en zijn functionarissen, 1477–1531, Biografieën van raadsheren, Amsterdam, 1980. 19  The eighteenth-century history of the court has recently been thoroughly researched by A. Verscuren, The Great Council of Malines in the 18th century. An Aging Court in a Changing World?, Studies in the History of Law and Justice, 3, Cham etc., 2015, who also offers the best reconstitution of the court’s final years during the French revolutionary wars. 20  C. H. van Rhee, Litigation and Legislation: Civil Procedure at First Instance in the Great Council for the Netherlands in Malines (1522–1559), Brussels, 1997. 21  A. Wijffels, Appellationen am Großen Rat von Mecheln, in: BRGÖ Beiträge zur Rechtsgeschichte Österreichs, 2013, pp. 211–229 (with further bibliographical references).



The supreme judicature in the Habsburg Netherlands385

could be brought directly before the Great Council.22 Even in cases where such a direct appeal was not the accepted practice (or even prohibited), some litigants nevertheless tried to ‘leap-frog’ the provincial court by appealing directly (omisso medio) to the Great Council – which then could commit the case back to the provincial court. The procedural remedy of ‘reformation’ was in some respect comparable to an appeal, but entailing several differences (in theory or in practice) with an appeal in the strict sense. Among the extraordinary procedural remedies, which appear to have been used comparatively exceptionally, the revision proceedings (originally, in the fifteenth century, styled after the French nomenclature as proposition d’erreur) against decisions of the Great Council, and in some cases the decision of another appellate court, were the most important.23 At certain times in the Council’s history, a case pending before another court could be taken away from that court and then heard and judged by the Great Council (a procedural device known as ‘evocation’).24 Over the centuries, the territorial jurisdiction of the Great Council changed dramatically.25 For the first half-century after its final establishment in Malines, the Great Council lost some essential provinces, and these losses were only partly compensated by Charles V’s incorporation of other provinces into the personal union. The major loss, during the first half of the sixteenth century, was the duchy of Brabant. The Brabant States, referring to the ‘Joy22  See for example J.-M. Cauchies, Le Grand Conseil des ducs de Bourgogne, le Parlement de Malines et les ‘terres de débat’ (Lessines-Flobecq): à propos de publications récentes, in: Bulletin du cercle royal d’histoire et d’archéologie d’Ath et de la région et musée athois, 8, 1974, pp. 346–350. 23  A. Wijffels, Les procédures en révision au Grand Conseil de Malines (1473– 1580), in: Publication du Centre Européen d’Etudes bourguignonnes (XIVe–XVIe s.), 30, 1990, pp. 67–97; idem, Revisie en rechtsdwaling, in: R. van den Bergh/G. van Niekerk/P. Pichonnaz/Ph. Thomas/D. Kleyn/F. Lucrezi/J. Mutton (eds.), Meditationes de iure et historia. Essays in honour of Laurens Winkel, Fundamina 20, 1–2, 2014, pp. 1034–1042; of which a revised French version appeared as: L’argumentation dans les recours en révision au Grand Conseil de Malines: une distinction estompée entre ‘fait’ et ‘droit’?, in: Clio & Themis, Revue électronique d’histoire du droit, 8, 2015. 24  C. L. Verkerk, Evocatie in de Landen van Herwaarts-over tussen 1470 en 1540, in: Consilium Magnum 1473–1973, Herdenking van de 500e verjaardag van de oprichting van het Parlement en de Grote Raad van Mechelen, Colloquium 8–9. XII.1973, Brussels, 1977, pp. 419–448. 25  A general outline in: J. Gilissen, De Grote Raad van Mechelen, historisch overzicht, in: Miscellanea Consilii Magni. Ter gelegenheid van twintig jaar Werkgroep Grote Raad van Mechelen, Amsterdam, 1980, pp. 13–43. See also L. Th. Maes, Het Parlement en de Grote Raad van Mechelen, 1473–1797 (bewerkt en drukrijp gemaakt door Marcel Kocken en Jozef Nalewajski), Antwerp/Rotterdam, 2009, including reproductions of the maps first shown at the Malines exhibition of 1973, showing the changes in the court’s territorial jurisdiction.

386

A. Wijffels

ous Entry’ of 1356,26 argued that Brabant denizens enjoyed the privilege of not having to answer actions before courts outside the duchy – which precluded the Great Council’s jurisdiction, because Malines was an autonomous enclave, distinct from the duchy. The States of the county of Hainaut made a similar claim. The powerful provincial Council of Brabant claimed therefore that, for the duchy, it was a sovereign court, and the council of Hainaut in Mons argued along the same lines. These claims seem to have effectively succeeded by the time Charles V inherited the duchy. Proceedings from Brabant and Hainaut before the Great Council had not been frequent in earlier times, but they all but vanished after around 1515. The second wave of territorial losses was a result of the religious-political civil war and the proclamation of independence of the northern provinces in 1581. From that time onwards, it became impossible to appeal from the sovereign provinces (Holland and Zeeland, Utrecht, Friesland, Groningen, Overijssel) to Malines.27 In large territories which were occupied and administered by the States-General, such as the northern part of the county of Flanders (State Flanders)28 and of the duchy of Brabant (State Brabant, which, however, for the reasons already mentioned, had since the beginning of the century escaped the jurisdiction of the Great Council)29 or State Gelderland,30 litigants could no longer bring their action or appeal to a court in the Southern Netherlands under Habsburg rule. During the seventeenth century, especially during Louis XIV’s wars, whole parts of the southern edge of the Habsburg Nether26  See G. van Dievoet, De Blijde Inkomst. De geschreven grondwet van Brabant (1356–1794), in: Van Uytven et al. (eds.), De gewestelijke en lokale overheidsinstellingen in Brabant, pp. 19–31 (with further bibliographical references). 27  An attempt was made, in 1582, to replace the Great Council as supra-provincial appellate court by a High Council (Hoge Raad) for the whole of the Northern provinces. The project was opposed by most of the provinces, and as a result, the High Council’s jurisdiction was limited to Holland and (a few years later) Zeeland. C. Verhas, De beginjaren van de Hoge Raad van Holland, Zeeland en West-Friesland … tot onderhoudinge van de Politique ordre, ende staet der Landen van Hollandt, Zeelandt, Vrieslandt …, The Hague, 1997; M.-Ch. Le Bailly/C. Verhas, Procesgids Hoge Raad van Holland, Zeeland en West-Friesland (1582–1795). De hoofdlijnen van het procederen in civiele zaken voor de Hoge Raad zowel in eerste instantie als in hoger beroep, Hilversum, 2006. 28  M.-Ch. Le Bailly, Procesgids Staatse Raad van Vlaanderen te Middelburg (1599–1795). De hoofdlijnen van het procederen in civiele zaken voor de Staatse Raad van Vlaanderen zowel in eerste instantie als in hoger beroep, Hilversum, 2007. 29  E. J. M. F. C. Broers/B. C. M. Jacobs, Procesgids Staatse Raad van Brabant, Hilversum, 2000 (including a bibliography on both the ‘royal’ and the ‘states’’ councils of Brabant). 30  A. M. J. A. Berkvens, Procesgids Soevereine raad te Roermond, Justiz-collegium te Geldern en Staats Hof van Gelre te Venlo: De hoofdlijnen van het procederen in civiele zaken in Spaans en nadien Oostenrijks, Pruisisch en Staats (Opper-)Gelre in eerste aanleg en in hoger beroep 1580–1795, Hilversum, 2010.



The supreme judicature in the Habsburg Netherlands387

lands, after changing fortunes of war, were lost to France: for the jurisdiction of the Great Council, the losses affected mostly (in addition to the Artois)31 the whole southern part of the county of Flanders,32 and the southern territories of the duchy of Luxemburg. During the period of the Austrian Netherlands, reforms resulted in establishing the provincial court of Hainaut as the appellate court for the territory of Tournai (which had until then been subjected to the Malines appellate jurisdiction),33 whereas the provincial court of Luxemburg was given the status of sovereign court. By the end of the Ancien Régime, only what was left of the county of Flanders,34 the relatively small county of Namur, the Habsburg part of Gelderland and the enclaves of Malines remained under the Great Council’s jurisdiction.35 Within the Habsburg Netherlands, the Great Council of Malines competed, as a sovereign court, with the provincial courts of Brabant in Brussels, of Hainaut in Mons, and of Luxemburg. 5. The Privy Council The Privy Council of the Habsburg Netherlands was institutionalised during the first decades of the sixteenth century, but its origins may be traced in 31  The council of the county of Artois had been subjected to appeals to the Great Council; after the French conquest, it was maintained, but increasingly in the mould of the French realm: Ph. Sueur, Le Conseil Provincial d’Artois (1640–1790): une cour provinciale à la recherche de sa souveraineté, Arras, 1982. 32  Louis XIV established a court for the conquered territories in Flanders, which may well have been intended to extend its jurisdiction over the whole county and beyond if the French military and political efforts had been more successful. The French court was maintained in those parts of Flanders which remained French after the wars. It first had its seat in Tournai, and eventually in Douai, and it acquired the status of sovereign court and Parlement de Flandre. Cf. J. Lorgnier, Le Conseil Souverain et Parlement (1668–1709), in: B. Desmaele/J.-M. Cauchies (eds.), Les institutions publiques régionales et locales en Hainaut et Tournai/Tournaisis sous l’Ancien Régime, Brussels, 2009, pp. 433–437; and V. Demars-Sion, Le parlement de Flandre: une institution originale dans le paysage judiciaire français de l’Ancien Régime, in: Revue du Nord, 91, 2009, pp. 687–726. 33  B. Desmaele/J.-M. Cauchies (eds.), Les institutions publiques régionales et locales en Hainaut et Tournai/Tournaisis sous l’Ancien Régime, Brussels, 2009, esp. pp. 123–136 on the sovereign council of Hainaut, and pp. 425–432 on the Council of Tournai. 34  A. Verscuren, The interactions between the Council of Flanders and the Great Council of Malines in the eighteenth century, in: G. Martyn et al. (eds.), Intermediate institutions in the County of Flanders in the Late Middle Ages and the Early Modern Era, Brussels, 2012, pp. 139–153. 35  Verscuren, The Great Council of Malines in the 18th century, shows that the Great Council, under the Austrian rule, was unable to press its arguments for retaining existing or acquiring new territories under its jurisdiction.

388

A. Wijffels

the court of the dukes of Burgundy and in the political governance of the first Habsburg rulers during the last decades of the fifteenth century.36 By the second half of the fifteenth century, the Great Council as the ruler’s supreme appellate court and court for privileged first-instance cases had become a distinct body from the ruler’s political council, sometimes referred to as the Grand Conseil lez le prince. The term ‘secret and privy council’ occasionally occurs during the reign of Philip the Good, and it seems that it then refers to meetings of ad hoc selected councillors called to advise the duke on key political issues which were associated with the arcana of the polity. During the regency of Philip the Fair while he was still a minor, and later when Margaret of Austria was entrusted with the government of the Netherlands, and again on several occasions during the first years of Charles V’s reign, the device of a Privy Council was used as a restricted advising body at the very heart of the central government of the personal union in the Netherlands. By that time, the need to reorganise that central government on a more stable footing prompted a number of reforms. In 1517, and later on during Charles V’s reign, ordinances consolidated some features of the earlier practice and established the Privy Council as a permanent institution. A milestone in that policy was the 1531 ordinance which organised the three central joint governmental councils of the Netherlands (conseils collatéraux, collaterale raden),37 viz. the Council of State, the Privy Council and the Financial Council. Originally, the first of these councils, where the high nobility was represented, was the most important and called to advise the ruler on the main political issues, on foreign policy and on military matters.38 The Financial Council was the most specialised body, entrusted with the administration of the sovereign’s revenues and expenditures. The Privy Council was mainly responsible for advising the ruler on domestic issues, and for implementing his policies by preparing the sovereign’s legislation and by acting as a general and supervisory executive body in the government of the personal union. At the beginning of the sixteenth century, the office of Chan36  See the entry ‘Conseil Privé (1504–1794)’ by H. de Schepper in: Aerts et al. (eds.), Les institutions du gouvernement central, vol. 1, pp. 287–317 (including an extensive bibliography); at the time when the present contribution was being written, the Royal Academy was preparing the publication of a monograph by the same author on the Privy Council, based on his (unpublished) doctoral dissertation (De Kollaterale Raden in de Katholieke Nederlanden van 1579 tot 1609: Studie van leden, instellingen en algemene politiek, Leuven, 1972) and life-long research on the subject. 37  On the early years of the Privy Council and the other ‘collateral’ councils, M. Baelde, De collaterale raden onder Karel V en Filips II (1531–1578). Bijdrage tot de geschiedenis van de centrale instellingen in de zestiende eeuw, Brussels, 1965. 38  M. Baelde/R. Vermeir, entry ‘Conseil d’État’ (with further bibliographical references) in: Aerts et al. (eds.), Les institutions du gouvernement central, vol. 1, pp. 257–274.



The supreme judicature in the Habsburg Netherlands389

cellor lost much of its significance and eventually disappeared altogether.39 The head of the Privy Council, styled chief president, became a pivotal figure in the relations between the joint councils and between the central executive offices and the governor-general. The chief president became the minister who held the most important position of influence. His position and that of the Privy Council seem to have mutually reinforced each other. In the course of the Ancien Régime, the weight of the nobility in the public governance of the Habsburg Netherlands receded and the prominence of the State Council declined. The Privy Council became in the long term the main and most influential central governmental body in the Habsburg Netherlands. Under the Austrian Habsburgs, the future of the joint councils seemed at first uncertain, and in the late 1780s again, Joseph II attempted to introduce a whole new system of government (including a new system of courts),40 but each time, the old system was restored, and the Privy Council’s progressive ascendancy reinforced. The system finally disappeared when the Austrian Netherlands were annexed by the French Republic in 1795. As a core political body close to the sovereign and a select committee of the sovereign’s larger council, the Privy Council was originally staffed by the nobility, clergymen and university-trained jurists. The latter’s tasks were specifically issues of grace and justice. By 1531, when the main political tasks devolved to the Council of State, the jurists remained as the councillors running the Privy Council in its new form. Because of their expertise, they also retained, besides their administrative tasks, that part of the former council’s business related to grace and justice. At the beginning of the sixteenth century, the Habsburg central government for the Netherlands settled in Brussels, and that became also the permanent seat of the Privy Council. The position of privy councillor was for a jurist the crowning of a career which often started as an advocate or as a legal counsel of a city, and at a later stage an appointment at a provincial court or at the Great Council in Malines.41 In 39  M. Boone, ‘Chancelier de Flandre et de Bourgogne’, in: Aerts et al. (eds.), Les institutions du gouvernement central, vol. 1, pp. 209–225. 40  R. Warlomont, Les idées modernes de Joseph II sur l’organisation judiciaire dans les Pays-Bas autrichiens, in: Tijdschrift voor rechtsgeschiedenis, 27, 1959, pp. 269–289; Ph. Van Hille, De gerechtelijke hervorming van keizer Jozef II, Tielt, 1973. Joseph II’s reform should moreover be viewed in the context of his reforms of governance and justice in various other Habsburg-ruled territories. 41  C. Thomas, Hommes d’État, hommes de loi. Les conseillers du Grand Conseil de Malines au XVIIe siècle, in: C. de Morbeau de Gerbehaye et al. (eds.), Gouvernance et administration dans les provinces belges (XVIe–XVIIIe siècles), Brussels, 2013, pp. 155–177; idem, Le visage humain de l’administration: les grands commis du gouvernement central des Pays-Bas espagnols (1598–1700), Brussels, 2014. For the situation in central government during the Austrian Netherlands: C. Bruneel, Les grands commis du gouvernement des Pays-Bas autrichiens: dictionnaire biographique

390

A. Wijffels

some cases, academics who had held a chair in a law faculty were appointed. The legal training was regarded as the most adequate for councillors who had to prepare, whether or not at their own initiative, the sovereign’s legislation, to exercise many executive tasks (both in secular and ecclesiastical affairs) and, in addition, adjudicate in litigation. The Privy Council was also directly involved in the appointments of judicial officials in both higher courts and many lower courts. Under Charles V, several ordinances (1517, 1531, 1540) suggest that the ruler’s policy may have been to stem the tide of ordinary proceedings which took up a substantial part of the privy councillors’ business. It may also have reflected a concern for rationalising public governance by ensuring that ordinary legal proceedings would be dealt with mostly, if not exclusively, by the ordinary courts of law.42 The Privy Council’s administration of justice remains to a large extent terra incognita in historical research. In recent times, the importance of the Council as a (quasi-)judicial body has, however, been highlighted by the Belgian historian Hugo de Schepper.43 In a most general sense, the Privy Council’s jurisdiction may be regarded as the expression of the supreme and residual jurisdictional powers associated with the early modern sovereign’s du personnel des institutions centrales, Brussels, 2001; M. Galand, Gages, honneurs, mérites: les hauts fonctionnaires dans les Pays-Bas autrichiens, in: Revue belge de philologie et d’histoire, 73, 2001, pp. 557–580; F. Alix, Les critères de sélection des hauts fonctionnaires des Pays-Bas méridionaux (1700–1725), in: Revue belge de philologie et d’histoire, 87, 2009, pp. 297–348. 42  H. de Schepper, Rechter en administratie in de Nederlanden tijdens de zestiende eeuw, Alphen aan den Rijn, 1981, highlights the importance of administrative litigation during the sixteenth century, which he sees as distinct from civil and criminal litigation (p. 16). Substantially, De Schepper’s remark is correct, but it is somewhat anachronistic to such extent as, at the time, ‘civil proceedings’ usually referred to any non-criminal proceedings. Litigation pertaining to what our modern legal taxonomy would qualify as ‘administrative’ law occurred both in the provincial appellate courts, at the Great Council and at the Privy Council. 43  H. de Schepper, De Grote Raad van Mechelen, hoogste rechtscollege in de Nederlanden?, in: Bijdragen en mededelingen betreffende de geschiedenis der Nederlanden, 93, 1978, pp. 389–411, has been a seminal article as regards the concept of a supreme court in the early modern Low Countries. It has contributed to breaking away from a modern ultra-positivistic notion of a supreme court as the exclusive and ultimate tribunal in a jurisdiction. At the same time, the author may have failed to emphasize sufficiently that the Great Council would have to be regarded – and was probably regarded as such by contemporaries – as the highest court in an ordinary sense (even though the Council’s tasks were not exclusively of an adjudicating nature), whereas the Privy Council, in spite of its adjudicating powers, would mainly have to be regarded as a political body. Both institutions illustrate the fleeting boundaries, in early modern times, between ‘police and justice’, while both had not yet been separated.



The supreme judicature in the Habsburg Netherlands391

prerogative. That was a prerogative inherited from the medieval concept of public governance, which regarded justice as an inherent component of that political governance, and which therefore ignored separation of powers as a fundamental principle of state organisation. In that sense, there was no strict limit to the potential jurisdiction of the Privy Council – whether in terms of procedural remedies or in terms of issues or interests. In practice, however, one may surmise – without the benefit, so far, of any reliable overview of the cases effectively dealt with by the council – that one filter which may have been applied (with due flexibility) was the interest at stake for the polity. It is, admittedly, a vague criterion, but it may help to understand why the Privy Council’s jurisdiction was meant to interfere only exceptionally with the course of the ordinary courts of law (including the provincial appellate courts and the Great Council in Malines), and, in addition, why many of the cases dealt with by the Privy Council may have been perceived as presenting politically sensitive features. What was perceived to be politically sensitive may have been determined by the status or position of the litigants, by considerations of public policy, by the financial and economic interests at stake, by reasons of political strategy in domestic and foreign affairs, and also on the grounds of legal categories.44 Again, none of these slightly more specific criteria would have laid down a strict demarcation between the council’s powers to adjudicate on a particular case and the jurisdiction of the ordinary courts of law of the sovereign. Opportunistic considerations by both the privy councillors (or their political masters) and private litigants, and in the course of time, procedural practice and habits, may even have contributed to extend on a regular basis the effective case-load of the Privy Council to litigation which would normally have devolved to the ordinary (higher) courts. In accordance with such flexible guiding principles, it is understandable that the Privy Council could not be regarded as an ordinary appellate court, but that it admitted to review cases on the basis of a range of extraordinary procedural remedies developed in Roman-canonical procedure and the practice of sovereign justice, and that it could even also hear cases in original proceedings. Whereas appeals in criminal cases were exceptional in the 44  One striking example that comes to mind is a mid-sixteenth century case about wine import in the Netherlands and trade navigation on the Scheldt estuary, which pitted Middelburg in Zeeland against Antwerp in Brabant, but which had further implications on international and inter-regional maritime trade. It was eventually dealt with by the Great Council, but the sources show that the central government was closely watching and monitoring the case (A. Wijffels, A Consultancy on Wine Imports, in: Tijdschrift voor rechtsgeschiedenis, 73, 2005, pp. 321–355; idem, Ius commune and International Wine Trade, A Revision (Middelburg c. Antwerp, 1548– 1559), in: Tijdschrift voor rechtsgeschiedenis, 71, 2003, pp. 289–317).

392

A. Wijffels

Southern Netherlands, and therefore rare in the business of provincial courts,45 it seems that the defence of the sovereign’s interests, understood in a broad sense, including, for instance economic and financial interests, was a cause for criminal prosecutions before the Privy Council, for which from the mid-sixteenth century onwards a ‘councillor-fiscal’ was in charge. In many of the areas and issues in civil law (i. e. non-criminal cases, and thus including the wide spectrum of private law, public law, economic and trade law, feudal law etc.) to which the Privy Council’s jurisdiction extended, the superior provincial courts and the Great Council had a concurrent jurisdiction. The Privy Council could therefore also, and regularly did, commit a case which had been brought before its jurisdiction to one of these courts to be dealt with and decided. Conversely, the Privy Council could also decide to take a case pending before one of these courts to its own jurisdiction and decide it (évocation). As already noted, the Council would not take on a case formally as an appeal, but it was open to extraordinary procedural forms which could be served to challenge a (final) judicial decision. Here, too, some concurrent jurisdiction with the Great Council may be recognised, for the latter could also hear and decide extraordinary ‘reviews’ (revision) against its own (and in some cases, another court’s) judgments. These review proceedings were brought before the Great Council, but the court’s bench was then extended ad hoc by including judges from other provincial courts, and occasionally also privy councillors.46 The Privy Council’s status also implied that it could hear cases challenging decisions of the sovereign courts of Brabant and Hainaut (though, for the former, one may speculate what the Council of Brabant’s position might have been if the seat of the Privy Council had not been in Brussels). Similarly, the Privy Council’s judicial and quasi-judicial business also included non-contentious jurisdiction, such as the court decisions giving executory force to agreed settlements between parties (condamnation volontaire), a practice also encountered in ordinary courts. Perhaps the most distinctive jurisdiction of the Privy Council, illustrating the institution’s proximity to the sovereign or his deputy, in contrast to the higher courts, was the part it played in handling acts of grace of the sovereign (e. g. pardons or remissions of 45  In criminal cases, appeal was only allowed in exceptional circumstances: J. Monballyu, Zes eeuwen strafrecht. De geschiedenis van het Belgische strafrecht (1400– 2000), Leuven/Voorburg, 2006, p. 363; for the situation in the county of Flanders: idem, De Raad van Vlaanderen, een soevereine justitieraad in strafzaken?, in: R. Huijbrecht (ed.), Handelingen van het tweede Hof van Holland Symposium gehouden op 14 November 1997 in de Trêveszaal te Den Haag, The Hague, 1998, pp. 77–90. 46  Wijffels, Les procédures en révision au Grand Conseil de Malines (1473– 1580), pp. 67–97.



The supreme judicature in the Habsburg Netherlands393

sentences).47 A degree of the Council’s discretionary leeway may also be seen in the option it had between conducting either standard proceedings following the ordinary process of law, or more informal proceedings (procédure communicatoire, sans figure de procès).48 6. Supreme judicature and the law-making process Paulus Christinaeus’s law reports (ed. pr. 1626–1633)49 start in the first volume with a series of entries discussing the position of the (Belgian) supreme courts and the authority of their decisions. Although the notion of case law in a modern sense had not yet been developed, Christinaeus makes it clear that a sovereign court’s judicial decision, in the name of the sovereign, may be considered as an authority. At a more practical level, early modern legal opinions by practitioners and scholars in the Netherlands – as in other civil law jurisdictions – grew into the habit of referring to judicial decisions (from Belgian or foreign higher courts) as legal authorities, at least through the intermediary of law reports. Printed Belgian law reports appeared comparatively late:50 Christinaeus’s were the first to be published in the Southern Netherlands. In the absence of a strong policy towards building a common law of the Habsburg provinces, and because of the fragmenting particularistic tendencies in many provinces, the number of printed law reports re-

47  M. Vrolijk, Recht door gratie. Gratie bij doodslagen en andere delicten in Vlaan­ deren, Holland en Zeeland (1531–1567), Hilversum, 2004; idem, Gratie als hoge rechtspraak. Het belang van het vorstelijk gratierecht in de vroegmoderne Nederlandse samenleving, in: H. de Schepper/R. Vermeir (eds.), Hoge rechtspraak in de oude Nederlanden, Maastricht, 2006, pp. 79–92; H. de Schepper, Het gratierecht in het Bourgondisch-Habsburgse Nederland, 1384–1633, vorstelijk prerogatief en machtsmiddel, in: H. Coppens/K. Van Honacker (eds.), Tien bijdragen over de staat, de regering en de ambtenaren van de 16de tot 18de eeuw. Symposium over de centrale overheidsinstellingen van de Habsburgse Nederlanden, Brussels, 1995, pp. 43– 87. 48  H. de Schepper, Ein Überblick auf die gerichtliche Kontrolle über Verwaltungshandlungen in den Niederlanden im 16. Jahrhundert, in: W. Sellert (ed.), Rechtsbehelfe, Beweis und Stellung des Richters im Spätmittelalter, Cologne/Vienna, 1985, pp. 55–71. 49  A. Wijffels, Christinaeus, Decisions, in: S.  Dauchy/G.  Martyn/A.  Musson/ H. Pihlajamäki/A. Wijffels (eds.), The Formation and Transmission of Western Legal Culture. 150 Books that Made the Law in the Age of Printing, Cham, 2016, pp. 177– 180. 50  U. Wagner, Rechtsprechungs- und Konsiliensammlungen, Niederlande, in: H. Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte. Vol. 2: Neuere Zeit (1500–1800). Das Zeitalter des Gemeinen Rechts. 2nd part: Gesetzgebung und Rechtsprechung, Munich, 1976, pp. 1399–1430.

394

A. Wijffels

mained comparatively small.51 Even adding the known manuscript reports, the literary genre in the Belgian territories remained modest. The failure of the Great Council to impose itself as a supreme appellate court for all the provinces to some extent restricted even further the potential of its decisions as general, trans-regional authorities. Nevertheless, a handful of such reports were printed, particularly relating to the Great Council, the Council of Brabant, the Council of Flanders, and of the Privy Council. Some reports reflect, in chronological order, the reporter’s judicial career: Nicolas du Fief’s (1578–1651) unpublished reports, for example, of which several handwritten copies survive, trace his career from its beginning at a local court in Tournai, then as a councillor at the Great Council, and subsequently his long tenure as an ecclesiastical councillor at the Privy Council.52 The reports are not only testimonies to the emergence, albeit indirectly, of case law as a law-building authority. They also show how the early modern superior courts’ had a deep influence on the interpretation and implementation of statute law and customary law – authorities which (except for the prince’s statutes) had before the development of appellate courts in the Netherlands mainly been the preserve of local (lay) courts. The reports may have reinforced the influence of the learned legal culture of the higher courts’ legal professionals on the scope of local customs and statutes.53 Conclusion – a tentative comparative outlook54 For a relatively small territory, the Habsburg Netherlands presents some striking resemblances in the general development of the early modern su51  Ph. Godding, L’origine et l’autorité des recueils de jurisprudence dans les PaysBas méridionaux (13e–18e siècles), in: Rapports belges au VIIIe Congrès international de droit comparé – Pescara 1970, Brussels, 1970, pp. 1–37; A. Wijffels, Legal Records and Reports in the Great Council of Malines (15th to 18th Centuries), in: J. H. Baker (ed.), Judicial Records, Law Reports, and the Growth of Case Law, Comparative Studies in Continental and Anglo-American Legal History, 5, Berlin, 1989, pp. 181– 206. 52  A. Wijffels, Höchstgerichtsbarkeit in den südlichen Niederlanden (16./17. Jahrhundert): Nicolas du Fief und die Praxis des Großen und des Geheimen Rates, in: R. Lieberwirth/H. Lück (eds.), Akten des 36. Deutschen Rechtshistorikertages, Halle an der Saale, 10.–14. September 2006, Baden-Baden, 2008, pp. 626–647. 53  A. Wijffels, La coutume dans les consultations de Wamèse, in: B. Coppein/ F. Stevens/L. Waelkens (eds.), Modernisme, tradition et acculturation juridique. Actes des Journées internationales de la Société d’Histoire du Droit tenues à Louvain, 28 mai–1 juin 2008, Iuris Scripta Historica XXVII, Brussels, 2011, pp. 107–124. 54  For an earlier version of these findings: Introduction: European Legal History and the Diversity of Supreme Judicatures, in: A. Wijffels/C. H. van Rhee (eds.), European Supreme Courts. A Portrait Through History, London, 2013, pp. 14–37.



The supreme judicature in the Habsburg Netherlands395

preme judicature with contemporary tendencies in larger polities, some major constitutional differences between all those polities notwithstanding. As, for example, in France and in the Holy Roman Empire, but also in the Republic of the United Provinces, not a single ordinary court was able to impose its full jurisdiction throughout the whole territory. In France, provincial Parliaments and cours souveraines were the supreme courts in their province, without being subjected to the appellate jurisdiction of the Parliament of Paris; in the Holy Roman Empire, the imperial courts’ appellate jurisdiction was thwarted in many principalities and cities because of a privilege de non appellando; in the United Provinces, the Hoge Raad, initially established to be a general appellate court for all the provinces, only fulfilled that function for the counties of Holland and Zeeland. In the Habsburg Netherlands also, several sovereign courts coexisted, and the Great Council was only able to maintain its appellate jurisdiction for some, but not all, provinces. In the Habsburg Netherlands as in some other polities, the lack of a general supreme ordinary court was to some degree compensated by the development of the extraordinary jurisdiction of a governmental body, close to the supreme political authority. In France, this was the so-called justice retenue of the King’s Council, in the Holy Roman Empire, that role was somehow fulfilled – though in the context of a fundamentally different constitution and of entirely different power relations – by the Reichshofrat, in contrast to the ordinary supreme judicature of the Reichskammergericht. Inevitably, because in each polity the sovereign’s position and powers developed distinctly, the role of that sovereign’s prerogative court differed from one polity to the other. In England, the courts associated with the royal prerogative disappeared during the civil war. The position of the higher and sovereign courts in the Habsburg Netherlands may contribute to explain some distinctive features of early-legal developments in those territories. Unlike the situation in France, where the growing royal authority was a powerful institutional and ideological factor favouring the growth of a French common law, the sovereign in Madrid or Vienna did not inspire a comparable formation of a Belgian common law. During the last centuries of the Ancien Régime, the Habsburg rulers did not implement a legislative agenda in their Belgian territories as the French kings did in their realm. Neither the Great Council nor the Council of Brabant yielded the same influence outside their jurisdiction as the Parliament of Paris (which, moreover, could rely on the elaborate custom of Paris) in the other provinces of the kingdom. Nor were the supreme courts in the Habsburg Netherlands a decisive factor of political opposition as the Parliaments in eighteenth-century France. The Council of Brabant prevailed through a droit de représentation somehow similar to the droit de remontrances of the French Parliaments, but (except for the latter years of Joseph II’s reign) it

396

A. Wijffels

was never an instrument strong enough to block the princes’ legislation. Nor did Roman law play in the Habsburg Netherlands the same role of a gemeines Recht as a tool for developing the law in the hands of the imperial and territorial courts.55 Here, the difference may be one of intensity of ‘reception’ rather than a complete contrast, and the part played by Roman law in the Belgian courts’ practice is perhaps more comparable to that in (northern) France. Overall, the legal developments in the Southern Netherlands showed some analogies with the situation in the Northern Netherlands, with their particularistic provincial developments, though no Belgian province, not even Brabant, developed anything comparable to the doctrinal and practical development of the Roman-Dutch law in Holland. In the end, the higher and sovereign courts in the Habsburg Netherlands were overall conservative institutions in the sense that they were factors of gradual change with a great sense of continuity. The Privy Council’s judicial role may have been mainly one of maintaining the ruler’s peace on issues of public policy, and of implementing the ruler’s legislation, but neither under the Spanish nor under the Austrian rule (except, again, for the ill-fated attempts of Joseph II) were those rulers bent on radical reforms, so that, in the Privy Council’s practice, too, continuity may have prevailed over change. Bibliography Aerts, E. et al. (eds.), Les institutions du gouvernement central des Pays-Bas Habsbourgeois (1482–1795), Brussels, 1995. Alix, F., ‘Les critères de sélection des hauts fonctionnaires des Pays-Bas méridionaux (1700–1725)’, Revue belge de philologie et d’histoire, Vol. 87, 2009, 297–348. Baelde, M., De collaterale raden onder Karel V en Filips II (1531–1578). Bijdrage tot de geschiedenis van de centrale instellingen in de zestiende eeuw, Brussels, 1965. Baelde, M./Vermeir, R., ‘Conseil d’État’, in: Aerts, E. et al. (eds.), Les institutions du gouvernement central des Pays-Bas Habsbourgeois (1482–1795), Vol. 1, Brussels, 1995, 257–274. Berkvens, A. M. J. A., Procesgids Soevereine raad te Roermond, Justiz-collegium te Geldern en Staats Hof van Gelre te Venlo: hoofdlijnen van het procederen in civiele zaken in Spaans en nadien Oostenrijks, Pruisisch en Staats (Opper-)Gelre in eerste aanleg en in hoger beroep, 1580–1795, Hilversum, 2010. Blockmans, W. P. (ed.), Le privilège général et les privilèges régionaux de Marie de Bourgogne pour les Pays-Bas 1477. Het algemene en de gewestelijke privilegiën van Maria van Bourgondië voor de Nederlanden 1477, Kortrijk, 1985.

55  Ph. Godding, Peut-on déceler un droit commun dans l’histoire du droit privé belge?, in: Sartoniana, 16, 2003, pp. 125–156.



The supreme judicature in the Habsburg Netherlands397

Boers, E. J. M. F. C./Jacobs, B. C. M., Procesgids Staatse Raad van Brabant, Hilversum, 2000. Boone, M., ‘Chancelier de Flandre et de Bourgogne’, in: Aerts, E. et al. (eds.), Les institutions du gouvernement central des Pays-Bas Habsbourgeois (1482–1795), Brussels, Vol. 1, 1995, 209–225. Bruneel, C., Les grands commis du gouvernement des Pays-Bas autrichiens: dictionnaire biographique du personnel des institutions centrales, Brussels, 2001. Cauchies, J.-M., ‘Le Grand Conseil des ducs de Bourgogne, le Parlement de Malines et les ‘terres de débat’ (Lessines-Flobecq): à propos de publications récentes’, Bulletin du cercle royal d’histoire et d’archéologie d’Ath et de la région et musée athois, 1974, 346–350. Dauchy, S., De processen in beroep uit Vlaanderen bij het Parlement van Parijs (1320–1521): een rechtshistorisch onderzoek naar de wording van staat en souvereiniteit in de Bourgondisch-Habsburgse periode, Brussels, 1995. Demars-Sion, V., ‘Le parlement de Flandre: une institution originale dans le paysage judiciaire français de l’Ancien Régime’, Revue du Nord, Vol. 91, 2009, 687–726. De Schepper, H., De Kollaterale Raden in de Katholieke Nederlanden van 1579 tot 1609, studie van leden, instellingen en algemene politiek, PhD thesis, Catholic University of Leuven, 1972. De Schepper, H., ‘De Grote Raad van Mechelen, hoogste rechtscollege in de Nederlanden?’, Bijdragen en mededelingen betreffende de geschiedenis der Nederlanden, Vol. 93, 1978, 389–411. De Schepper, H., Rechter en administratie in de Nederlanden tijdens de zestiende eeuw, Alphen aan den Rijn, 1981. De Schepper, H., ‘Ein Überblick auf die gerichtliche Kontrolle über Verwaltungshandlungen in den Niederlanden im 16. Jahrhundert’, in: Sellert, W. (ed.), Rechtsbehelfe, Beweis und Stellung des Richters im Spätmittelalter, Cologne/Vienna, 1985, 55–71. De Schepper, H., Belgium Nostrum 1500–1650: over integratie en desintegratie van het Nederland, Antwerp, 1987. De Schepper, H., ‘Le Conseil Privé (1504–1794)’, in: Aerts, E. et al. (eds.), Les institutions du gouvernement central des Pays-Bas Habsbourgeois (1482–1795), Brussels, Vol. 1, 1995, 287–317. De Schepper, H., ‘Het gratierecht in het Bourgondisch-Habsburgse Nederland, 1384– 1633, vorstelijk prerogatief en machtsmiddel’, in: Coppens, H./Van Honacker, K. (eds.), Tien bijdragen over de staat, de regering en de ambtenaren van de 16de tot 18de eeuw. Symposium over de centrale overheidsinstellingen van de Habsburgse Nederlanden, Brussels, 1995, 43–87. Desmaele, B./Cauchies, J.-M. (eds.), Les institutions publiques régionales et locales en Hainaut et Tournai/Tournaisis sous l’Ancien Régime, Brussels, 2009, 123–136. Gaillard, A., Le Conseil de Brabant. Histoire – organisation – procédure, Brussels, 1898–1902.

398

A. Wijffels

Galand, M., ‘Gages, honneurs, mérites: les hauts fonctionnaires dans les Pays-Bas autrichiens’, Revue belge de philologie et d’histoire, Vol. 73, 2001, 557–580. Gilissen, J., ‘Les phases de la codification et de l’homologation des coutumes dans les XVII Provinces des Pays-Bas’, Tijdschrift voor rechtsgeschiedenis, Vol. 18(1), 1950, 36–67 and 239–290. Gilissen, J., ‘La rédaction des coutumes en Belgique aux XVIe et XVIIe siècles’, in: Gilissen, J. (ed.), La rédaction des coutumes dans le passé et dans le présent, Brussels, 1962, 87–111. Gilissen, J., ‘De Grote Raad van Mechelen, historisch overzicht’, in: Miscellanea Consilii Magni. Ter gelegenheid van twintig jaar Werkgroep Grote Raad van Mechelen, Amsterdam, 1980, 13–43. Godding, Ph., ‘L’origine et l’autorité des recueils de jurisprudence dans les Pays-Bas méridionaux (13e–18e siècles)’, in: Rapports belges au VIIIe Congrès international de droit comparé – Pescara 1970, Brussels, 1970, 1–37. Godding, Ph., Le droit privé dans les Pays-Bas méridionaux du 12e au 18e siècle, Brussels, 1987. Godding, Ph., ‘Peut-on déceler un droit commun dans l’histoire du droit privé belge?’, Sartoniana, Vol. 16, 2003, 125–156. Great Council of Malines, Ordonnances, statuts, stile, et maniere de proceder, faits et decretez par le roi Don Philippe II. pour son Grand Conseil Le 8. d’Août 1559. Avec les Eclaircissemens sur lesdites Ordonnances émanés du même Conseil. L’Institution d’icelui, par le Duc Charles de Bourgogne en l’an 1473. Celle de l’Archiduc Philippe du 22. Janvier 1503. & l’Ordonnance par l’Empereur Charles V. du 26. Octobre 1531. Nouvelle Edition augmentée de plusieurs Ordonnances & Reglemens jusques à l’An 1719, Brussels, 1721. Hasquin, H. (ed.), La Belgique française 1792–1815, Brussels, 1993. Hénin, C./de Moreau de Gerbehaye, C. (eds.), Les pouvoirs politiques du comté de Namur. Répertoire des institutions publiques centrales, régionales et locales, de l’an mil à 1795, Vol. 2, Brussels, 2013, 217–260. Justice et institutions françaises en Belgique (1795–1815), Traditions et innovations autour de l’annexion. Actes du colloque tenu à l’Université de Lille II les 1, 2 et 3 juin 1995, Hellemmes, 1996. Kerckhoffs-de Heij, A. J. M., De Grote Raad en zijn functionarissen, 1477–1531, Amsterdam, 1980. Kerckhoffs-de Heij, A. J. M., De Grote Raad en zijn functionarissen, 1477–1531. Biografieën van raadsheren, Amsterdam, 1980. Le Bailly, M.-Ch., Procesgids Staatse Raad van Vlaanderen te Middelburg (1599– 1795). De hoofdlijnen van het procederen in civiele zaken voor de Staatse Raad van Vlaanderen zowel in eerste instantie als in hoger beroep, Hilversum, 2007. Le Bailly, M.-Ch./Verhas, C., Procesgids Hoge Raad van Holland, Zeeland en West-Friesland (1582–1795). De hoofdlijnen van het procederen in civiele zaken voor de Hoge Raad zowel in eerste instantie als in hoger beroep, Hilversum, 2006.



The supreme judicature in the Habsburg Netherlands399

Leyder, D., Les archives du Grand Conseil des Pays-Bas à Malines (vers 1445–1797), Brussels, 2010. Lorgnier, J., ‘Le Conseil Souverain et Parlement (1668–1709)’, in: Desmaele, B./ Cauchies, J.-M. (eds.), Les institutions publiques régionales et locales en Hainaut et Tournai/Tournaisis sous l’Ancien Régime, Brussels, 2009, 433–437. Maes, L. Th., Het Parlement en de Grote Raad van Mechelen, 1473–1797, ed. by Marcel Kocken/Jozef Nalewajski, Antwerp/Rotterdam, 2009. Martyn, G., ‘De advocatuur in het oude graafschap Vlaanderen’, in: Martyn, G./Donker, G./Faber, S./Heirbaut, D. (eds.), Geschiedenis van de advocatuur in de Lage Landen, Hilversum, 2009, 13–36. Monballyu, J., ‘De Raad van Vlaanderen, een soevereine justitieraad in strafzaken?’, in: Huijbrecht, R. (ed.), Handelingen van het tweede Hof van Holland Symposium gehouden op 14 November 1997 in de Trêveszaal te Den Haag, The Hague, 1998, 77–90. Monballyu, J., Zes eeuwen strafrecht. De geschiedenis van het Belgische strafrecht (1400–2000), Leuven/Voorburg, 2006. Put, E., ‘Raad van Brabant’, in: Van Uytven, R. et al. (eds.), De gewestelijke en lokale overheidsinstellingen in Brabant en Mechelen tot 1795, Brussels, 2000, 147–161. Sueur, Ph., Le Conseil Provincial d’Artois (1640–1790): une cour provinciale à la recherche de sa souveraineté, Arras, 1982. Thomas, C., ‘Hommes d’État, hommes de loi. Les conseillers du Grand Conseil de Malines au XVIIe siècle’, in: de Morbeau de Gerbehaye, C. et al. (eds.), Gouvernance et administration dans les provinces belges (XVIe–XVIIIe siècles), Brussels, 2013, 155–177. Thomas, C., Le visage humain de l’administration: les grands commis du gouvernement central des Pays-Bas espagnols (1598–1700), Brussels, 2014. Van Caenegem, R. C., Les arrêts et jugés du parlement de Paris sur appels flamands conservés dans les registres du parlement, Brussels, 1986. Van Dievoet, G., ‘De Blijde Inkomst. De geschreven grondwet van Brabant (1356– 1794)’, in: Van Uytven, R. et al. (eds.), De gewestelijke en lokale overheidsinstellingen in Brabant en Mechelen tot 1795, Brussels, 2000, 19–31. Van Hille, Ph., De gerechtelijke hervorming van keizer Jozef II, Tielt, 1973. Van Honacker, K., ‘Conseil Souverain de Justice (1787)’, in: Aerts, E. et al. (eds.), Les institutions du gouvernement central des Pays-Bas Habsbourgeois (1482– 1795), Vol. 1, Brussels, 1995, 463–469. Van Rhee, C. H., Litigation and legislation: civil procedure at first instance in the Great Council for the Netherlands in Malines (1522–1559), Brussels, 1997. Van Rompaey, J., De Grote Raad van de hertogen van Boergondië en het parlement van Mechelen, Brussels, 1973. Van Uytven, R. et al. (eds.), De gewestelijke en lokale overheidsinstellingen in Brabant en Mechelen tot 1795, Brussels, 2000.

400

A. Wijffels

Verhas, C., De beginjaren van de Hoge Raad van Holland, Zeeland en West-Friesland … tot onderhoudinge van de Politique ordre, ende staet der Landen van Hollandt, Zeelandt, Vrieslandt …, The Hague, 1997. Verkerk, C. L., ‘Evocatie in de Landen van Herwaarts-over tussen 1470 en 1540’, in: Consilium Magnum 1473–1973, Herdenking van de 500e verjaardag van de oprichting van het Parlement en Grote Raad van Mechelen, Colloquium 8–9. XII.1973, Brussels, 1977, 419–448. Verscuren, A., ‘The interactions between the Council of Flanders and the Great Council of Malines in the eighteenth century’, in: Martyn, G. et al. (eds.), Intermediate institutions in the County of Flanders in the Late Middle Ages and the Early Modern Era, Brussels, 2012, 139–153. Verscuren, A., The Great Council of Malines in the 18th century. An Aging Court in a Changing World?, Studies in the History of Law and Justice, 3, Cham etc., 2015. Vrolijk, M., Recht door gratie. Gratie bij doodslagen en andere delicten in Vlaanderen, Holland en Zeeland (1531–1567), Hilversum, 2004. Vrolijk, M., ‘Gratie als hoge rechtspraak. Het belang van het vorstelijk gratierecht in de vroegmoderne Nederlandse samenleving’, in: De Schepper, H./Vermeir, R. (eds.), Hoge rechtspraak in de oude Nederlanden, Maastricht, 2006, 79–92. Waelkens, L. et al., The History of Leuven’s Faculty of Law, Bruges, 2014. Wagner, U., ‘Rechtsprechungs- und Konsiliensammlungen, Niederlande’, in: Coing,  H. (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, Part II: Neuere Zeit (1500–1800): Das Zeitalter des gemeinen ­Rechts. Vol. 2: Gesetzgebung und Rechtsprechung, Munich, 1976, 1399–1430. Warlomont, R., ‘Les idées modernes de Joseph II sur l’organisation judiciaire dans les Pays-Bas autrichiens’, Tijdschrift voor rechtsgeschiedenis, Vol. 27, 1959, 269–289. Wijffels, A., Qui millies allegatur, Les allégations du droit savant dans les dossiers du Grand Conseil de Malines (causes septentrionales, ca. 1460–1580), Rechtshistorische Studies, XI, Leiden, 1985. Wijffels, A., ‘Legal Records and Reports in the Great Council of Malines (15th to 18th Centuries)’, in: Baker, J. H. (ed.), Judicial Records, Law Reports, and the Growth of Case Law, Comparative Studies in Continental and Anglo-American Legal History, 5, Berlin, 1989, 181–206. Wijffels, A., ‘Les procédures en révision au Grand Conseil de Malines (1473–1580)’, Publication du Centre Européen d’Etudes bourguignonnes (XIVe–XVIe s.), Vol. 30, 1990, 67–97. Wijffels, A., ‘Procureurs et avocats au Grand Conseil de Malines’, in: L’assistance dans la résolution des conflits, Recueils de la Société Jean Bodin pour l’histoire comparative des institutions 64, 3e partie, Brussels, 1997, 163–187. Wijffels, A., ‘Höchste Gerichtsbarkeit als Instrument der Friedenserhaltung in interterritorialen Konflikten: Der Große Rat von Mechelen in den burgundisch-habsburgischen Niederlanden’, in: Diestelkamp, B./Scheurmann, I. (eds.), Friedenssiche-



The supreme judicature in the Habsburg Netherlands401 rung und Rechtsgewährung. Sechs Beiträge zur Geschichte des Reichskammergerichts und der obersten Gerichtsbarkeit im alten Europa, Bonn, 1997, 83–102.

Wijffels, A., ‘Ius commune and International Wine Trade, A Revision (Middelburg c. Antwerp, 1548–1559)’, Tijdschrift voor rechtsgeschiedenis, Vol. 71, 2003, 289–317. Wijffels, A., ‘Consultancy on Wine Imports’, Tijdschrift voor rechtsgeschiedenis, Vol. 73, 2005, 321–355. Wijffels, A., ‘Höchstgerichtsbarkeit in den südlichen Niederlanden (16./17. Jahrhundert): Nicolas du Fief und die Praxis des Großen und des Geheimen Rates’, in: Lieberwirth, R./Lück, H. (eds.), Akten des 36. Deutschen Rechtshistorikertages, Halle an der Saale, 10.–14. September 2006, Baden-Baden/Bern/Stuttgart, 2008, 626–647. Wijffels, A., ‘La coutume dans les consultations de Wamèse’, in: Coppein, B./Stevens, F./Waelkens, L. (eds.), Modernisme, tradition et acculturation juridique. Actes des Journées internationales de la Société d’Histoire du Droit tenues à Louvain, 28 mai–1 juin 2008, Iuris Scripta Historica, XXVII, Brussels, 2011, 107–124. Wijffels, A., ‘Appellationen am Großen Rat von Mecheln’, BRGÖ Beiträge zur Rechtsgeschichte Österreichs, 2013, 211–229. Wijffels, A., ‘Introduction: European Legal History and the Diversity of Supreme Judicatures’, in: Wijffels, A./Van Rhee, C. H. (eds.), European Supreme Courts. A Portrait Through History, London, 2013, 14–37. Wijffels, A., ‘Revisie en rechtsdwaling’, in: Van den Bergh, R./Van Niekerk, G./Pichonnaz, P./Thomas, Ph./Kleyn, D./Lucrezi, F./Mutton, J. (eds.), Meditationes de iure et historia. Essays in honour of Laurens Winkel, Pretoria, 2014, 1034–1042. Wijffels, A., ‘L’argumentation dans les recours en révision au Grand Conseil de Malines: une distinction estompée entre ‘fait’ et ‘droit’?’, Clio & Themis, Revue électronique d’histoire du droit, Vol. 8, 2015, https://www.cliothemis.com/L-argu mentation-dans-les-recours#page. Wijffels, A., ‘Christinaeus, Decisions’, in: Dauchy, S./Martyn, G./Musson, A./Pihla­ jamäki, H./Wijffels, A. (eds.), The Formation and Transmission of Western Legal Culture. 150 Books that Made the Law in the Age of Printing, Cham, 2016, 177–180.

C. H. VAN RHEE

Supreme judicature in Holland, Zeeland and West-Friesland after the Dutch Revolt, 1582–1795 Introduction The Revolt of the Netherlands, the conventional starting date of which is 1568, had far-reaching consequences for the Low Countries – which at the time consisted of territory covering most parts of modern-day Belgium, Luxemburg, northern France and the Netherlands – not least in the area of justice.1 As a result of the Revolt, the institutions which had previously been entrusted with the administration of justice at the highest level, such as the Great Council of Malines2 and the Privy Council in Brussels,3 became unacceptable fora and out of reach for litigants living in the Northern provinces,4 which would become Calvinist states. The changes were originally not obvious, since for some time after the start of the Revolt the Great Council of Malines continued to hear cases from the North. In actual fact, it has been established that litigants from the province of Holland continued to litigate before the Great Council until 1579.5 However, on 26 July 1581, the 1  On the Dutch Revolt in English, see e. g. G. Parker, The Dutch Revolt, London, 1977. 2  In Dutch: Grote Raad van Mechelen, in French: Grand Conseil de Malines. See also the contribution of Wijffels in the present volume. On the early history of the Great Council, see J. van Rompaey, De Grote Raad van de Hertogen van Boergondië en het parlement van Mechelen, Brussels, 1973. On the later history of this court, see A. Verscuren, The Great Council of Malines in the 18th century. An Aging Court in a Changing World?, Studies in the History of Law and Justice, 3, Cham etc., 2015. See also C. H. van Rhee, The Low Countries until 1800, in: A. Wijffels/C. H. van Rhee (eds.), European Supreme Courts. A Portrait through History, London, 2013, pp. 204 ff. 3  In Dutch: Geheime Raad, in French: Conseil privé. On the Privy Council, see e. g. H. de Schepper, De Geheime Raad, in: E. Aerts et al. (eds.), De centrale overheids­ instellingen van de Habsburgse Nederlanden, vol. 1, Brussels, 1994, pp. 295–324. 4  Holland including West-Friesland (West-Frisia), Zeeland, Gelderland, Utrecht, Friesland, Overijssel and the town of Groningen and neighbouring territories. 5  C. Verhas, De beginjaren van de Hoge Raad van Holland, Zeeland en WestFriesland … tot onderhoudinge van de Politique ordre, ende staet der Landen van Hollandt, Zeelandt, Vrieslandt …, The Hague, 1997, p. 32.

404

C. H. van Rhee

Estates General of the Northern provinces officially decided to stop recognising the Spanish King Philip II, son and successor of the Habsburg emperor Charles V, as their lord and legitimate ruler, and passed the Act of Abjuration.6 From that moment, the Great Council, which continued to administer justice in the name of King Philip II, and also the Privy Council, became unacceptable fora. In practice, the political situation was even more complicated than just mentioned. The sovereign authority of the seven Northern provinces was not so much the Estates General, but the various estates of these provinces themselves. The Estates General were only competent in relation to certain specific types of subject-matter which was relevant for all of the seven provinces, and in matters relating to the East and West India Companies (founded in the 17th century), whereas the bulk of matters of government remained with the provincial estates. Obviously, therefore, the United Provinces (Dutch Republic) was not a unitary state, but a confederation of smaller states.7 1. Two superior courts Already at the end of 1577, temporary measures had been implemented to replace the Great Council of Malines as the superior court of justice. This had resulted in the creation of the so-called ‘College of Revisors’,8 a body of judges competent to hear appeals from judgments of the provincial Court of Holland, Zeeland and West-Friesland (referred to as the Court of Holland in the rest of this contribution),9 situated at the administrative and judicial centre of Holland (and to a certain extent also of the United Provinces), the Binnenhof in the Hague.10 The Court of Holland was a provincial court that had formerly been subject to the Great Council of Malines.11 This ‘College 6  In Dutch: Plakkaat van Verlatinghe or Acte van Verlatinghe. For a modern edition, see A. S. de Blécourt/N. Japikse (eds.), Klein Plakkaatboek van Nederland, Groningen, The Hague, 1919, pp. 137–144. 7  J. Ph. De Monté ver Looren/J. E. Spruit, Hoofdlijnen uit de Ontwikkeling der Rechterlijke Organisatie in de Noordelijke Nederlanden tot de Bataafse Omwenteling, Deventer, 2000, pp. 249 ff. 8  In Dutch: College van Reviseurs. 9  In Dutch: Hof van Holland, Zeeland en West-Friesland. 10  On this court, see M.-C. le Bailly, Recht voor de Raad. Rechtspraak voor het Hof van Holland, Zeeland en West-Friesland in het midden van de 15e eeuw, PhD thesis, University of Leiden, 2001, and M.-C. le Bailly, Procesgids Hof van Holland, Zeeland en West-Friesland, Hilversum, 2008. See also Van Rhee, The Low Countries until 1800, pp. 215 ff. 11  Verhas, De Beginjaren van de Hoge Raad, p. 33. See also J. van der Linden, Verhandeling over de Judicieele Practijcq of Form van Procedeeren, vol. 1, Leiden, 1794, pp.  42 ff.



Supreme judicature in Holland405

of Revisors’ was replaced by a permanent institution in 1582: the newly established High Council,12 which also found its seat at the Binnenhof in the Hague.13 After the murder of William I of Orange (William the Silent) in Delft in 1584, the High Council would administer justice in the name of the ‘Public Authorities’14 as the sovereign authority of the United Provinces.15 Although attempts were made to make the High Council the superior court for all of the Northern provinces, these attempts were unsuccessful. The court was originally only competent for the province of Holland and for a formerly independent area in the northern part of Holland known as WestFriesland (West Frisia).16 In 1587, the province of Zeeland subjected itself to the jurisdiction of the High Council,17 but the other territories never did so. Later, cases from the overseas territories could also be brought before the highest court in the Hague.18 However, the fact that the court was not competent for all provinces meant that the provincial courts of the various other provinces gained in power, since they had become the highest courts within their respective jurisdictions, even though in the past a number of them had been subject to the Great Council of Malines. This had important consequences for the development of the law in the various Netherlandish provinces, where the unifying role of the Great Council disappeared. As a result, the law applied within each province showed a different mix of Roman and indigenous elements, giving rise to, for example, Roman-Frisian Law in the province of Frisia (Friesland)19 alongside the Roman-Dutch Law of the provinces of Holland, Zeeland and West-Friesland.20 It was mainly the RomanDutch Law that was exported to the overseas territories such as the Cape Colony, Ceylon (Sri Lanka) and the Dutch East Indies (Indonesia) by the

Dutch: Hoge Raad. this court, see Verhas, De Beginjaren van de Hoge Raad, and M.-Ch. Le Bailly/C. Verhas, Procesgids Hoge Raad van Holland, Zeeland en West-Friesland (1582–1795). De hoofdlijnen van het procederen in civiele zaken voor de Hoge Raad zowel in eerste instantie als in hoger beroep, Hilversum, 2006, pp. 215 ff. 14  In Dutch: Hoge Overicheyt. 15  Verhas, De Beginjaren van de Hoge Raad, p. 33. See also Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 38 ff. 16  See on this territory and its judical organization: Le Bailly, Recht voor de Raad, p. 71. 17  De Monté ver Looren and Spruit, Hoofdlijnen uit de Ontwikkeling der Rechterlijke Organisatie, p. 169. 18  Verhas, De Beginjaren van de Hoge Raad, p. 68. 19  E. g. F. Brandsma/J. H. A. Lokin/C. J. H. Jansen, Het Rooms-Friese recht. De civiele rechtspraktijk van het Hof van Friesland in de 17e en 18e eeuw, Hilversum, 1999. 20  S. van Leeuwen, Het Rooms-Hollands Regt, 1st ed., Leiden/Rotterdam, 1664. 12  In

13  On

406

C. H. van Rhee

Dutch East India Company, i. e. not a general law of the United Provinces but only the law of its politically and economically most powerful provinces. The new High Council obtained its first organisational and procedural legislation in 1582. This so-called ‘Instruction’21 was to a large extent based on the 1559 Ordinance of the Great Council of Malines.22 The court, however, differed from its predecessor in various ways. First because it had not come into being as a result of organic growth within the curia of the sovereign, but due to a deliberate act of creation. It was conceived as a court of law; governmental tasks were entrusted to other bodies in the new Republic (in contemporary Dutch, these tasks were referred to as policie as opposed to justitie which concerned the administration of justice). In the late 16th century this was different at the much older Court of Holland, which also exercised powers in the area of the administration of the realm. The latter court started to lose governmental tasks from the 15th century. However, it still exercised some up to the 18th century.23 The High Council was also different from the Great Council because it developed a different stilus curiae, i. e. customary rules on procedure and court organisation. These customary rules in the area of procedure and court organisation can only be ascertained by studying the court records. Legislation such as the 1582 Instruction did not aim at regulating procedure and court organization exhaustively; much was left to court practice and it seems that often only problematic and contested issues were regulated by way of rules (as was the case at other courts at the time). As regards the High Council’s first instance jurisdiction,24 groups that had traditionally been brought under the jurisdiction of the Great Council, such as the high nobility and personae miserabiles, were now excluded from litigating at first instance before the High Council. They had to bring their cases before the Court of Holland.25 The High Council was, however, the court where foreign merchants and the staff of the High Council itself could bring their legal actions at first instance. It was thought that foreign merchants would prefer this fo21  In Dutch: Instructie. For a modern edition of this instruction, see De Blécourt/ Japikse, Klein Plakkaatboek van Nederland, pp. 144–175. 22  A. S. de Blécourt, De Geboorte van de Hoge Raad van Holland en Zeeland, in: Tijdschrift voor rechtsgeschiedenis, 2/4, 1920, pp. 428–459; Verhas, De Beginjaren van de Hoge Raad, p. 37. 23  Le Bailly, Recht voor de Raad, p. 329. See also Le Bailly, Procesgids Hof van Holland, Zeeland en West-Friesland, p. 11. 24  On the first instance jurisdiction of the court, see Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 80 ff. See also Le Bailly/Verhas, Procesgids Hoge Raad van Holland, Zeeland en West-Friesland, pp. 20–21. 25  See on the first instance jurisdiction of the Court of Holland, Le Bailly, Procesgids Hof van Holland, Zeeland en West-Friesland, pp. 23 ff.



Supreme judicature in Holland407

rum since they would be able to obtain a judgment there without the possibility of further delays due to an appeal.26 The High Council had to function within a completely different political and economic context than its predecessor. Especially problematic was its relationship with the Court of Holland. This was due to the fact that attempts to create a High Council competent for all provinces had not been successful. As a result, within the province of Holland, two superior courts had come into existence: the Court of Holland, which had traditionally been the highest court in the province (albeit subject to the Great Council of Malines), and the new High Council. It is probably not without good cause that the legislation governing the High Council is relatively vague about its subject-matter jurisdiction, something that had also been the case in legislation governing the Great Council of Malines (jurisdiction being a politically sensitive issue).27 Apparently, it was deemed safer to leave this matter as much as possible to practice and pragmatic solutions since both courts were extremely jealous to protect their interests (this was also the case for courts lower in the hierarchy). The situation frequently gave rise to jurisdictional conflicts – an example being in possessory actions concerning immovables. Such actions were traditionally the prerogative of the highest provincial courts, where these actions could be brought at first instance as they were related to keeping the peace of the land. Now both the Court of Holland and the High Council claimed to be competent to entertain these matters, and it took considerable time to find a compromise to govern this situation. The compromise was that the first court entertaining the possessory action would be the competent court (i. e. applying the canon law principle of praeventio).28 What was clear from the beginning, however, is that from the moment of the High Council’s creation in 1582, most judgments of the Court of Holland were subject to final appeal before the High Council,29 and in this sense the Council functioned as a real successor to the Great Council of Malines.30 It should, however, be remembered that even though the High Council was competent as a last resort on appeal, this did not necessarily mean that its judgments were final. This was due to the existence of a further, rather expensive means of recourse known as 26  Verhas, De Beginjaren van de Hoge Raad, p. 66. See also Van der Linden, Verhandeling over de Judicieele Practijcq, p. 81. 27  See Arts. 18–23 of the 1582 Instruction. For a modern edition of this instruction, see De Blécourt/Japikse, Klein Plakkaatboek van Nederland, pp. 144–175. 28  Verhas, De Beginjaren van de Hoge Raad, p. 127 and Le Bailly/Verhas, Procesgids Hoge Raad van Holland, Zeeland en West-Friesland, p. 14. See also Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 81, 342. 29  Van der Linden, Verhandeling over de Judicieele Practijcq, p. 42. 30  Verhas, De Beginjaren van de Hoge Raad.

408

C. H. van Rhee

revision.31 Revision proceedings could be initiated if it was held that a judgment issued at the highest instance contained errors. Revision meant that the highest court would be reinforced with additional judges chosen by the ‘executive’32 to review the matter decided at last instance. According to Van der Linden (about whom see below), revision originated in the idea of recursus ad principem in the sense of an appeal to the sovereign himself to deal with the matter at hand.33 As a result, final decisions of the High Council were not necessarily final in the modern sense. At the time of the creation of the High Council in 1582, the Court of Holland could look back on a long history. It was not created deliberately at a certain moment in time such as the High Council, but it was the result of an evolution which can be observed in most European territories in the High and especially later Middle Ages. The court found its origin in the council of the counts of Holland, the curia comitis, and was not only involved in the administration of justice, but also in the government of the realm. Only after 1445–1446 would its core task become the administration of justice, and from these years onwards the institution became known by its name ‘Court of Holland’ (beforehand we also find ‘Council of Holland’ and other names).34 Its position in West-Frisia, a territory that had been acquired by the Counts of Holland in 1289, was roughly the same as in the rest of Holland. Zeeland, however, posed a problem, since the judicial organization of that territory was different from that in Holland. In Zeeland, the highest court was the so-called Hoge Vierschaar of the Count, which was not a permanent body but a body that was convened by the Count when needed, and this happened rather seldom in the 15th century. Most legal cases were therefore de31  On revision, see also the contributions of Korpiola and Pihlajamäki in this volume. 32  I will use this slightly anachronistic terminology in order to refer to bodies that mainly executed tasks related to governance even though they may also have been involved in the administration of justice. 33  Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 372 ff. Van der Linden states that revision is the same as proposition d’erreur. The author holds that it originates in the idea of recursus as principem in the sense that it allows dissatisfied parties to file a complaint about a judgment against which no means of recourse are available (judgments in highest resort) with the sovereign (the political authorities). It meant that the case would be reconsidered by the same body that rendered the original judgment. However, the judges that would hear the case would be supplemented with a certain number of judges designated by the political authorities (the ‘executive’). See Instructie 1582, Arts. 279–289. For a modern edition of this instruction, see De Blécourt/Japikse, Klein Plakkaatboek van Nederland, pp. 144–175. On proposition d’erreur, see S. Dauchy, Les voies de recours extraordinaires: proposition d’erreur et requéte civile, Paris, 1988. 34  Le Bailly, Recht voor de Raad, pp. 74 ff., and Le Bailly, Procesgids Hof van Holland, Zeeland en West-Friesland, p. 11.



Supreme judicature in Holland409

cided elsewhere at the highest instance, often within the county of Zeeland, but sometimes also directly at the Great Council of Malines. Only a small number of cases reached the Court of Holland, especially on appeal, since the inhabitants of Zeeland enjoyed the privilege to be judged at first instance within their county. It also appears that often in this period defendants from Zeeland, when summoned before the Court of Holland, tried to escape its jurisdiction by submitting a so-called declinatory exception, in which they stated that they should be summoned before a court within their own county. When the Court of Holland rejected their pleas, they would immediately file an appeal against this decision at the Great Council of Malines.35 The judges at both superior courts were, from the foundation of the High Council in 1582, mostly professional lawyers. Several of them were academics and men of letters too.36 At the High Council the judges were appointed by the ‘Public Authorities’ (i. e. the sovereign authority) from a list of three candidates nominated by the Estates of Holland.37 When Zeeland submitted itself to the jurisdiction of the court, the Estates of Zeeland would be entitled to nominate two, and from 1596 three judges.38 The High Council terminated its existence on 18 September 1795, when the United Provinces became the Batavian Republic, a vassal state of France,39 i. e. around the same time as the abolition of the Great Council of Malines in the south.40 A commission was appointed to terminate the cases that at that time were still pending. In 1802, a new superior court (‘National Court of Law’ or, in Dutch, Nationaal Gerechtshof) was created, this time for the whole territory of the Batavian Republic, which was conceived as a unitary state.41 The Court of Holland continued its existence slightly longer. It was discontinued on 1 March 1811, with the introduction of the Napoleonic court organisation in the northern Netherlands as part of the annexation of these territories by France.42 The southern Netherlands had preceded the north in this respect, since they were annexed to France in 1795. 35  Le

Bailly, Recht voor de Raad, pp. 64 ff. De Beginjaren van de Hoge Raad, pp. 34 ff. 37  Instructie 1582, Art. 16. For a modern edition of this instruction, see De Blécourt/Japikse, Klein Plakkaatboek van Nederland, pp. 144–175. 38  Verhas, De Beginjaren van de Hoge Raad, pp. 38–39; Le Bailly/Verhas, Procesgids Hoge Raad van Holland, Zeeland en West-Friesland, p. 16. 39  De Monté ver Looren/Spruit, Hoofdlijnen uit de Ontwikkeling der Rechterlijke Organisatie, p. 169. The current Dutch High Council (Hoge Raad) only has its name in common with the ancient High Council. The current court is a cassation court. 40  Verscuren, The Great Council of Malines in the 18th century, pp. 281 ff. 41  E. C. G. Bauwens, Het Nationaal Gerechtshof, 1802–1811, Amsterdam, 1997. 42  Le Bailly, Procesgids Hof van Holland, Zeeland en West-Friesland, p. 12. 36  Verhas,

410

C. H. van Rhee

2. Other bodies exercising superior justice in Holland, Zeeland and West-Friesland: A patchwork of competences The High Council of Holland, Zeeland and West-Friesland and the Court of Holland, Zeeland and West-Friesland cannot be studied independently if a clear picture of supreme judicature in the territories for which these courts were competent is to be formed. Their relationship with other executive and judicial bodies in the provinces should also be taken into consideration. Uncovering this relationship is not an easy task. It appears – as might be expected – that the dividing lines between executive and judicial bodies was blurred at the time, and that various ‘executive’ bodies were also involved in the administration of justice (or at least in deciding disputes) at the highest level, although often the final judgment was officially issued by a court of law, usually the High Council (albeit after the case had been ‘heard’ before an ‘executive’ body). Especially informative on this issue is the handbook written by the practising lawyer Joannes van der Linden (1756–1835), the first part of which was published in 1794 as Verhandeling over de Judicieele Practijcq of Form van Procedeeren (Treatise on Judicial Practice and Manner of Litigating). One of his sources, the Staatkundige Geschriften (Political Writings) of Simon van Slingelandt (1664–1736), written at the end of the 17th and beginning of the 18th century,43 is also useful (Van Slingelandt served as raadspensionaris of Holland from 1727–1736, i. e. a position that is roughly comparable to that of head of government). The general rule seems to have been that ‘political’ issues should not be brought before the courts of law, but it was often not clear which issues should be classified as ‘political’ (as stated before, they were referred to as ‘police matters’ or politie in the (Dutch) terminology of the period). In 1674 it was decided that a commission should be appointed which had to determine which issues qualified as ‘political’ and which could be considered judicial in nature (‘justice’ or justitie in the Dutch terminology of the period). The commission, however, never came into operation.44 Van der Linden starts his sketch of the various executive and judicial bodies in the territories under consideration by explaining that in certain ecclesiastical matters the secular authorities were not competent (unless the church needed the assistance of the secular authorities in terminating an abuse, or an ecclesiastical dispute threatened public order).45 He categorises these matters 43  Publication of Van Slingelandt’s Political Writings had to wait until the end of the 18th century: S. van Slingelandt, Staatkundige geschriften, 4 vols., Amsterdam, 1784–1785. 44  Van der Linden, Verhandeling over de Judicieele Practijcq, p. 88. 45  Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 3 ff.



Supreme judicature in Holland411

as ‘pure ecclesiastical matters’, which belong to the jurisdiction of the local church councils,46 the rulings of which were subject to appeal at the classis (i. e. presbytery) of the territory where the church was situated. Appeals against decisions of the classis could be lodged at the synod of the area as a final resort. One of the members of the synod had to be a member of the courts of justice and he acted in the synod as ‘political commissioner’47 of the executive. It was therefore only at the highest level of ecclesiastical jurisdiction that a representative of the secular authorities was involved. These authorities were, however, involved at all levels when it concerned church matters other than purely ecclesiastical ones, i. e. matters concerning ‘ecclesiastical police’ (i. e. matters that were administrative in nature and did not concern issues of faith). These matters were subject to the jurisdiction of the ‘Assigned Councillors’ or Gecommitteerde Raden of Holland (i. e. a body of officials whose main tasks lay in the administration of the realm). This was not only true for the official Church, but for all protestants and catholics in the territories under consideration. Ecclesiastical goods and goods of the poor were also – with exceptions – subject to the Assigned Councillors; the provincial courts were forbidden to provide possessory relief as regards these goods, even though possessory claims could as a rule be brought before these courts at first and last instance. Matters concerning the right of patronage (ius patronatus) did, however, belong to the jurisdiction of the secular courts. After having discussed jurisdiction regarding ecclesiastical matters (and military matters,48 about which see below), Van der Linden treats the various supra-provincial executive and judicial bodies of the United Provinces (i. e., in Dutch, the Generaliteitscollegiën). These bodies need to be taken into consideration since obviously they were also competent for Holland, Zeeland and West-Friesland. The first body Van der Linden mentions is the Estates General, whose members were referred to as Hoog Mogende Heeren (‘High and Powerful Lords’).49 This body consisted of representatives of the Seven United Provinces and within it each province had one vote only. Although the Estates General should be considered as an executive or ‘political’ body, some matters concerning the administration of justice also fell within its competences. It heard cases on appeal originating from the Council of Flanders residing in the town of Middelburg50 (this Council of Flanders Dutch: kerkenraden. Dutch: commissaris politicq. 48  Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 8–9. 49  Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 9  ff. On the Estates General, see Van Slingelandt, Staatkundige Geschriften, vol. 2, pp. 125 ff. 50  Originally, the High Council had been competent to hear appeals from the Council of Flanders in Middelburg. Since 1661, appeals could also be lodged with the 46  In 47  In

412

C. H. van Rhee

had jurisdiction as regards the parts of Flanders that had been conquered by the northern military forces; these parts of Flanders were governed directly by the Estates General).51 Appeal to the Estates General was possible if the judgment was valued at more than 30 Pounds Flemish.52 Even though on appeal cases were heard by the Estates General, they were usually referred to the Council of Brabant residing in the Hague53 in order to be decided by way of a judgment (the Council of Brabant in the Hague was a court competent for the parts of the Duchy of Brabant that had been conquered by the United Provinces; it issued judgments at the highest level for these parts of Brabant and now also for a part of Flanders). Additionally, the Estates General was competent in allowing revision proceedings to be started against judgments in civil matters of more than 600 guilders in value that had been pronounced by the admiralty courts (the Estates General issued the necessary form or mandement to initiate proceedings).54 In these revision proceedings, the Estates General would appoint additional ‘revisors’ (judges) next to the revisors of the admiralty court itself (the revisors appointed by the Estates General were representatives of the Estates General and were chosen from the members of the provincial courts). Similar powers were exercised as regards final judgments issued by the Council of Brabant in the Hague, mentioned above.55 Furthermore, the Estates General exercised judicial powers as regards the revision of judgments issued at last instance by the courts in the overseas territories. In these cases they would also decide whether revision proceedings could be commenced (they issued the necessary mandement) and they would hear the case, but when the case was ready to be deEstates General. In 1676 the Estates General terminated the possibility of an appeal from the Council of Flanders to the High Council, since the High Council had appeared to be unwilling to take the opinion of the Estates General into consideration when deciding a case (this is obviously proof of the executive interfering with the administration of justice). It was laid down that from now on appeals should be lodged with the Council of Brabant in the Hague (see M.-Ch. Le Bailly, Procesgids Staatse Raad van Vlaanderen te Middelburg (1599–1795). De hoofdlijnen van het procederen in civiele zaken voor de Staatse Raad van Vlaanderen zowel in eerste instantie als in hoger beroep, Hilversum, 2007, p. 12). According to Van der Linden, the Estates General and the Council of Brabant cooperated in hearing these appeals in the manner described above: Van der Linden, Verhandeling over de Judicieele ­Prac­tijcq, p.  25. 51  On the Council of Flanders in Middelburg, see Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 25 ff. See also Le Bailly, Procesgids Staatse Raad. 52  Van der Linden, Verhandeling over de Judicieele Practijcq, p. 25. 53  On the Council of Brabant in the Hague, see Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 23 ff. See also E. J. M. F. C. Broers/B. C. M. Jacobs, Procesgids Staatse Raad van Brabant, Hilversum 2000. 54  Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 13, 22–23. 55  Van der Linden, Verhandeling over de Judicieele Practijcq, p. 13.



Supreme judicature in Holland413

cided it was sent to a court of justice for judgment, and this court was usually the High Council.56 Finally, the Estates General would appoint two commissioners on a biannual basis for deciding appeals in the town of Maastricht, together with two commissioners appointed by the Prince-Bishop of Liège (Maastricht was administered jointly by the Estates General and the Prince Bishop and, therefore, the way the administration of justice was organized in this town was complicated).57 The second supra-provincial body discussed by Van der Linden is the Council of State or, in Dutch, Raad van State.58 It was established in 1583 for the North as a general executive body and consisted of the stadtholder of the United Provinces and 12 ordinary members (councillors). Holland could nominate the largest number of councillors, i. e. three in total. In judicial matters, the Council of State functioned as the highest criminal appellate court for the Military (a High Military Council with jurisdiction in these matters had been established but was later abolished)59 and as the highest tax court for supra-provincial taxes. The Council of State was also the competent court for its staff (suppoosten), goods arrested by the Military that were exported to or imported from enemy territory, and persons who committed war and general defence-related crimes against the interests of the United Provinces.60 Even the Mint (which was also a supra-provincial body) was involved in the administration of justice in matters concerning precious metals at the highest resort.61 It had jurisdiction in cases concerning the weight and quality of coinage. Corporal crimes as regards precious metals were, however dealt with by the Council of State, apart from the crime of counterfeiting, which was dealt with at the provincial level. After discussing the various supra-provincial bodies, van der Linden continues with providing information on the provincial executive and judicial bodies in Holland. He starts by mentioning that the provincial estates of Holland was not a judicial body.62 Whenever they were addressed in legal disputes by way of a petition (in line with petitions to the princeps in territories ruled by a monarch), they would send the petitioner to the ordinary courts. When they were addressed in non-contentious judicial matters (e. g. sureté de 56  Ibid. 57  Ibid.

58  Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 14 ff. On this body, see Van Slingelandt, Staatkundige Geschriften, vol. 3. 59  Van Slingelandt, Staatkundige Geschriften, vol. 4, pp. 220 ff. 60  Van Slingelandt, Staatkundige Geschriften, vol. 3, pp. 226 ff. 61  Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 19–20. 62  Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 26 ff.

414

C. H. van Rhee

corps (safe conduct), venia aetatis (privilege granted by a prince or sovereign, by virtue of which a person is entitled to act as if he were of full age) and the dissolution of a fideicommis), they would, however, decide themselves, but usually not until after having requested the advice of the provincial court. The provincial court would give its advice after hearing the interested parties. Another provincial body was the Assigned Councillors (Gecommitteerde Raden). Although in Holland it was not first and foremost a judicial body, we have already noted that the Councillors would administer justice in some ecclesiastical matters. They would also exercise jurisdiction regarding crimes of the Military insofar as they were on the payroll of Holland, other matters of war, and counterfeiting. They were equally competent in tax disputes where the taxes concerned were levied for the province of Holland (usually as an appellate court, but sometimes also at first instance). Their judgments at last resort were subject to revision.63 There was a special court dealing with disputes related to hunting (College van Houtvester en Meesterknapen). Any of its judgments valued at 100 guilders or less were only subject to reformation at the Court of Holland,64 and those valued at more than 100 guilders were subject to appeal (first appeal to the Court of Holland and second appeal to the High Council).65 This means that in a number of cases originating from this specialized court, though not all, the High Council acted as judge of last resort. Conclusion Supreme judicature covering the whole territory of the Dutch Republic has never existed. Each province possessed its own judicial hierarchy, even though originally attempts were made to create a supra-provincial court that could serve as a successor to the Great Council of Malines. These attempts were not successful, however. The newly created High Council, which it was hoped could serve as a supra-provincial court for all the provinces of the Republic, would only become the highest appellate body for the provinces of 63  See fn. 33 and Van der Linden, Verhandeling over de Judicieele Practijcq, pp.  29 ff. 64  According to Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 358 ff., reformation did not differ much from appeal. The most important differences were: (1) unlike appeal, reformation did not have suspensive effect where it concerned enforcement of the judgment a quo, and (2) the time available for bringing proceedings in reformation was much longer than the time available for lodging an appeal (1 year as opposed to 20 days after the judgment a quo had been pronounced). 65  Van der Linden, Verhandeling over de Judicieele Practijcq, pp. 35 ff., p. 339.



Supreme judicature in Holland415

Holland and Zeeland (West-Frisia being part of Holland). This meant that most judgments of the Court of Holland and Zeeland, the provincial court which had been competent for the two provinces since the late Middle Ages, could be contested at the High Council. The same, however, was not true for the other provincial courts of the Republic. The High Council was different from many of the supreme courts discussed in the present volume since it was the result of a deliberate act of creation. It did not grow out of a princely council involved in the administration of the realm. It was from the beginning conceived as a court of law. This was different from the Court of Holland and Zeeland. This court had grown organically within the curia comitis and in this court a strict division between the administration of the realm and the administration of justice was not made. However, from the 15th century tasks of an administrative nature would slowly be reduced at this court, and, at the time of the creation of the High Council in 1582, the Court of Holland and Zeeland mainly (if not only) functioned as a court of law in the modern sense. When we limit our discussion to the provinces of Holland and Zeeland, it appears that the power to take final decisions at the highest level was not concentrated at the High Council. Various matters, including some in the area of private law, were decided elsewhere at the highest level. In certain of these matters, for example in the area of possessory actions, decisions of the Court of Holland and Zeeland could be final without the possibility of appeal to the High Council. At the supra-provincial level, executive bodies such as the Estates General were involved in the administration of justice. An example (but at the same time an exception) is appeals from the part of Flanders that had become part of the United Provinces and that was directly governed by the Estates General. Appeals from the Council of Flanders in Middelburg had to be brought before the Estates General itself. Usually, however, the Estates referred these matters to a court of law in order to be decided at the highest instance (usually it would be to the Council of Brabant, a court that, like the Estates General, was located in the Hague). The Council of State was also involved in the administration of justice at the highest level in the sense that it functioned as the highest criminal military tribunal and as the highest tax court. And even the Mint was competent as a court of law of last resort where it concerned judgments in matters concerning precious metals. The same involvement of executive bodies in the administration of justice could be witnessed at the provincial level in Holland and Zeeland. The provincial Estates were competent at the highest level in non-contentious matters such as the dissolution of a fideicommis (in these cases the preliminary advice of the Court of Holland would be requested and this court would hear

416

C. H. van Rhee

the parties before providing its advice). The Assigned Councillors were competent in some ecclesiastical matters (ecclesiastical goods and goods of the poor), several tax disputes and certain crimes of the Military. Even if the High Council was competent at highest instance, this did not necessarily mean that its judgments were final. This was due to the existence of a means of recourse known as revision. As a result, final decisions of the High Council were not necessarily final in the modern sense of being completely determinative. Whether or not a decision was final depended (at least to a certain extent) on the executive and not on the courts of law. The involvement of the executive in the administration of justice may have been guided by the idea that some matters were politically sensitive and could therefore not be left to the ordinary courts of law (this had, obviously, not yet resulted in administrative courts in the modern sense). Whether this is true needs to be investigated and is beyond the scope of the present contribution. However, it is perhaps not too bold a statement to say that in the period considered in the present contribution supreme judicature may be situated at the crossroads or interface between the courts and the executive. Given that a normative concept of separation of powers was absent during the ancien régime, this conclusion should not come as a surprise. Bibliography Bauwens, E. C. G., Het Nationaal Gerechtshof, 1802–1811, Amsterdam, 1997. Brandsma, F./Lokin, J. H. A./Jansen, C. J. H., Het Rooms-Friese recht. De civiele rechtspraktijk van het Hof van Friesland in de 17e en 18e eeuw, Hilversum, 1999. Broers, E. J. M. F. C./Jacobs, B. C. M., Procesgids Staatse Raad van Brabant, Hilversum, 2000. Dauchy, S., Les voies de recours extraordinaires: proposition d’erreur et requéte civile, Paris, 1988. De Blécourt, A. S./Japikse, N. (eds.), Klein Plakkaatboek van Nederland, Groningen/ The Hague, 1919. De Blécourt, A. S., ‘De Geboorte van de Hoge Raad van Holland en Zeeland’, Tijdschrift voor rechtsgeschiedenis, Vol. 2(4), 1920, 428–459. De Monté ver Looren, J. Ph./Spruit, J. E., Hoofdlijnen uit de Ontwikkeling der Rechterlijke Organisatie in de Noordelijke Nederlanden tot de Bataafse Omwenteling, Deventer, 2000. De Schepper, H., ‘De Geheime Raad’, in: Aerts, E. et al. (eds.), De centrale overheidsinstellingen van de Habsburgse Nederlanden, Vol. 1, Brussels, 1994, 295– 324. Le Bailly, M.-C., Procesgids Hof van Holland, Zeeland en West-Friesland, Hilversum, 2008.



Supreme judicature in Holland417

Le Bailly, M.-C., Recht voor de Raad. Rechtspraak voor het Hof van Holland, Zeeland en West-Friesland in het midden van de 15e eeuw, PhD thesis, University of Leiden, 2001. Le Bailly, M.-Ch./Verhas, C., Procesgids Hoge Raad van Holland, Zeeland en WestFriesland (1582–1795). De hoofdlijnen van het procederen in civiele zaken voor de Hoge Raad zowel in eerste instantie als in hoger beroep, Hilversum, 2006. Le Bailly, M.-Ch., Procesgids Staatse Raad van Vlaanderen te Middelburg (1599– 1795). De hoofdlijnen van het procederen in civiele zaken voor de Staatse Raad van Vlaanderen zowel in eerste instantie als in hoger beroep, Hilversum, 2007. Parker, G., The Dutch Revolt, London, 1977. Van der Linden, J., Verhandeling over de Judicieele Practijcq of Form van Proce­ deeren, Vol. 1, Leiden, 1794. Van Leeuwen, S., Het Rooms-Hollands Regt, 1st ed., Leiden/Rotterdam, 1664. Van Rhee, C. H., ‘The Low Countries until 1800’, in: Wijffels, A. A./Rhee, C. H. van (eds.), European Supreme Courts. A Portrait through History, London, 2013, 204–217. Van Rompaey, J., De Grote Raad van de Hertogen van Boergondië en het parlement van Mechelen, Brussels, 1973. Van Slingelandt, S., Staatkundige geschriften, 4 vols., Amsterdam, 1784–1785. Verhas, C., De beginjaren van de Hoge Raad van Holland, Zeeland en West-Friesland … tot onderhoudinge van de Politique ordre, ende staet der Landen van Hollandt, Zeelandt, Vrieslandt …, The Hague, 1997. Verscuren, A., The Great Council of Malines in the 18th century. An Aging Court in a Changing World?, Studies in the History of Law and Justice, 3, Cham etc., 2015.

D. FREDA

The Sacro Regio Consiglio of Naples, 15th–17th century 1. The reorganization of the courts of the Kingdom of Naples: the Sacro Regio Consiglio The centralization of the administration of justice in the Kingdom of Naples had ancient roots: the Sacro Regio Consiglio, the Gran Corte della Vicarìa and the Regia Camera della Sommaria were established by the Aragonese in the mid-15th century following a political process of centralization of government and jurisdiction started by the Normans in the 12th century and followed first by the Swabians and then by the Angevins in the following centuries. Such superior courts – together with the Consiglio Collaterale, created during the Spanish Viceroyalty at the beginning of the 16th century – attended by trained, professional judges, extremely powerful and often in conflict with each other in a complicated and often contradictory relationship, were destined to survive until mid-18th century.1 In the twelve provinces of the Neapolitan Kingdom (Terra di Lavoro, Principato Citra and Principato Ultra, Basilicata, Calabria Citra and Calabria Ultra, Terra di Bari, Terra d’Otranto, Capitanata, Contado di Molise, Abruzzo Citra and Abruzzo Ultra) there were also some inferior courts: the provincial Udienze and the Courts of Barons. The Udienze were ordinary courts, derived from the provincial Giustizierati of the Norman Period and established by the Aragonese, endowed with the power of jurisdiction in civil and crimi1  This contribution is an extended version of D. Freda, Rise and Fall of a Superior Court: the Sacro Regio Consiglio v the Consiglio Collaterale (12 September 2016), in: Forum historiae iuris, at https://forhistiur.de/2016-09-freda/. For a reconstruction of the development of the administration of justice in the Kingdom of Naples from the Norman age until the 18th century, see R. Colussi, Diritto, istituzioni, amministrazione della giustizia nel Mezzogiorno vicereale. La struttura regalistica, in: Storia del Mezzogiorno. Vol. XI: Aspetti e problemi del medioevo e dell’età moderna, Naples, 1993, pp. 19–98. See also the classic treatment in: R. Pescione, Corti di giustizia nell’Italia meridionale, Milan, Rome, Naples, 1924; and V. I. Comparato, Uffici e società a Napoli, 1600–1647. Aspetti dell’ideologia del magistrato nell’età moderna, Florence, 1974. A more synthetic portrait of the administration of justice limited to the reign of Alfonso of Aragon is offered in: A. Ryder, The Kingdom of Naples under Alfonso the Magnanimo. The Making of a Modern State, Oxford, 1976, pp. 136–168.

420

D. Freda

nal matters and hierarchically superior to any other provincial court. They exercised control as appellate courts (except that in important cases the competence in appeal rested with the Regia Gran Corte della Vicarìa or the ­Sacro Regio Consiglio) over the Courts of Barons, special courts which had received the merum et mixtum imperium cum gladii potestate, i. e. the jurisdiction over their tenants, since 1443 (reaffirmed in 1449) by Alfonso of Aragon, who aimed to balance his policy of centralization and control of the administration of justice with the judicial powers traditionally recognized as belonging to the powerful barons of the provinces.2 Beside these courts, there were the ecclesiastical courts: the Tribunali Vescovili and the Corte del Cappellano Maggiore, frequently interfering and conflicting with the ordinary courts. The Sacro Regio Consiglio was the most powerful and authoritative court of the Neapolitan Kingdom. Although the exact date of its foundation and the beginning of its activity is uncertain, legal historians agree that this supreme court was established between 1444 and 1449 by Alfonso the Magnanimous, who wanted to reorganise the tribunals of the Kingdom hierarchically.3 Hence the foundation of the Sacro Regio Consiglio and the merger, around 1450, of the previously existing Gran Corte or Corte del Gran Gius­ tiziere, of Norman origins, on which the Giustizierati of the provinces depended, and the Corte Vicària or Corte del Vicario, established by the Angevins in the late thirteenth century (created by Charles I, appointing his son Charles II as his ‘vicario’: hence the name of the court) as the supreme court of the Regia Gran Corte della Vicarìa. 2  On the complicated relationship between feudal and central courts, on its fragile institutional balance, and on the contribution of contemporary doctrine in the matter (with particular reference to the attempt to connect the judicial powers of the barons to the policy of centralization of the king), see the profound analysis by A. Cernigliaro, Sovranità e feudo nel Regno di Napoli, 1505–1557, vol. 1, Naples, 1983. On the origins and development of the judicial officium of the barons, on the relationship between the Sacro Regio Consiglio and feudal courts and on the criticism by Matthaeus de Afflictis of the concession to the barons of the merum et mixtum imperium by the king, see G. Vallone, Iurisdictio domini, Lecce, 1985. 3  According to Pescione, Corti di giustizia, p. 196, ‘models’ for the supreme court had been either the Supremo Consiglio of Valentia or the Roman Sacra Rota. See, for a more detailed discussion on the time of foundation of the great tribunal and for a profound analysis of the sources of the period, G. Cassandro, Sulle origini del Sacro Regio Consiglio napoletano, in: Studi in onore di Riccardo Filangieri, vol. 2, Naples, 1959. Cf. also Pescione, Corti di giustizia, pp. 198 ff.; and, for an accurate reconstruction of legal historians’ and lawyers’ opinions on the uncertainties about the date of the creation of the supreme court, Colussi, Diritto, istituzioni, amministrazione della giustizia, pp. 34–5, concluding that the great tribunal developed through a long and slow process destined to last until the beginning of the 16th century. On this point see also G. Vallone, Le ‘decisiones’ di Matteo d’Afflitto, Lecce, 1988, pp. 9–10.



The Sacro Regio Consiglio of Naples, 15th–17th century

421

The Sacro Regio Consiglio probably originated from an ancient Consi­ lium Principis, initially formed by lawyers and members of the aristocracy close to the king and endowed with advisory and judicial powers. It then became more specialized, thanks to the refinement of its judicial powers and to a slow process of exclusion of noblemen which occurred during the 15th and 16th centuries,4 developing into a real court of justice attended by trained, professional judges. The closeness of the Neapolitan great tribunal to royal administration is also witnessed by the itinerant nature of the court, whose location ‘followed’ the person of the king. This was also the reason why the supreme court moved many times to many different places in Naples and nearby: first of all, the Hospice of Santa Maria Incoronata, then to Castel Capuano, then again to the church of San Domenico, to the Curia Arcivescovile (1466–67), to the Monastery of Monte Vergine, the Monastery of Santa Chiara (1474) and finally, since 1540, to Castel Capuano again. From 1533 the supreme court, presided over by a President (Praeses), was divided into two Aulae (chambers), each formed by four legum doctores, chosen from the most learned and well-regarded lawyers of the Kingdom. Decisions in the most difficult cases were taken iunctis Aulis (i. e. in joint sitting). Two doctors of the tribunal exercised their functions also at the Gran Corte della Vicarìa. The number of members of each Aula increased, between the 16th and 17th centuries, to five members (all legal experts), while the number of the Aulae was raised first to three and then to four, creating a total of twenty members.5 The President had a wide power to steer the activity of the court6 and was able to assign the cases to the judges, after a preliminary and summary examination of their content. Each judge signed the pronouncement of its decisions ‘nomine SRC’. In addition to the President and the other judges, a Secretary, five Officers and a Porter of the Secretary’s Office were also part of the court. Thirteen Mastrodatti, sixteen Examiners of cases, nine Tavolari, one Affittatore del 4  Further, on the crisis of the aristocracy and the strenghtening of the letrados (lawyers and officiales) within the institutions of the Kingdom, see R. Ajello, Il problema storico del Mezzogiorno. L’anomalia socioistituzionale napoletana dal Cinquecento al Settecento, Naples, 1994, who talks of a real hegemony of lawyers in Naples since the 16th century. On the streamlining of feudality in the Kingdom see also Cernigliaro, Sovranità e feudo. 5  Colussi, Diritto, istituzioni, amministrazione della giustizia, p. 36. M. N. Miletti, Tra equità e dottrina. Il Sacro Regio Consiglio e le ‘decisiones’ di V. De Franchis, Naples, 1995, pp. 143–144, highlights that sources show some inconsistencies in the matter. 6  Further, on the arbitrariness of the procedure followed by the Sacro Regio Consiglio, see Miletti, Tra equità e dottrina, pp. 143–166.

422

D. Freda

Sigillo, fourteen Porters, one Capitano and twenty-four soldiers completed the picture.7 The Sacro Regio Consiglio had a wide competence in first instance in civil matters: it judged all cases concerning feudal questions and all difficult cases. The remaining cases were decided by the inferior courts of the Kingdom (the provincial Udienze and the Courts of Barons) and by the Regia Gran Corte della Vicarìa as a court of appeal. Thereafter it was possible to resort to the Sacro Regio Consiglio only as a further and final degree of jurisdiction. The supreme court could not judge cases concerning political matters, normally decided by the Consiglio Collaterale, and cases concerning financial and fiscal interests, judged by the Regia Camera della Sommaria. For criminal matters, the Regia Gran Corte della Vicarìa had a general competence in first and second instance, so it was possible to resort to the Sacro Regio Consiglio only after a decision on its part. Nevertheless, should any trial concern the crimen lesae majestatis or be particularly serious, the Sacro Regio Consiglio had direct jurisdiction over it. 2. ‘Ista est nova decisio Sacri Consilii, quae habet vim legis, et sic facit ius’8 The decisions of the Sacro Regio Consiglio, formed by expert legum doctores, enjoyed a jurisdictional praeminentia (pre-eminence) over every other court of the Kingdom. The supreme court had, in fact, wide powers of interpretation, since it represented the sovereign, gave judgment nomine regio. Consequently, its authority was considered equal only to the authority of the monarch, while its decisions were regarded as an authentic interpretation of law. The title ‘Sacro’ referred to the tradition of the direct administration of justice in court by the sovereign ex divina potestate: hence the sacredness of the judges who judged ‘tanquam Deus’. The ‘sacredness’ of the court referred also to the informality of the procedure followed by the great tribunal, which had to be guided exclusively by veritas, aequitas and conscientia. Owing to the large discretionary and equitable powers delegated to it by the monarch, which allowed the Sacro Regio Consiglio not to strictly observe the ius commune, the supreme court was able to administer justice ‘de plano, sola facti veritate inspecta’ (directly, according to the facts

7  The mastrodatti, from the latin ‘Magister actorum’, were officers in charge of writing and the custody of public and private deeds; the Tavolari registered deeds concerning real estate; the Affittatori del sigillo kept the royal seal. 8  ‘This is a new decision of the Sacro Regio Consiglio, which has legal force, and consequently makes law’.



The Sacro Regio Consiglio of Naples, 15th–17th century

423

alone)9, without any strict observance of the ius commune and the statute law. The decisiones of the Sacro Regio Consiglio, as pronounced by the court ‘sub nomine Regiae Majestatis’,10 were considered final and incontrovertible, i. e. they could not be challenged through ordinary remedies.11 Against a decisio of the court it was only possible to resort to the extraordinary remedy of reclamatio, in order to claim the revision of the judgment on the part of the same judges who had pronounced it (although the revision process did not stop the enforcement of the decision itself). In particular, the decreta delivered by the Sacro Regio Consiglio ‘junctis Aulis’ (i. e. by the two Aulae joined together in cases of ‘maxima causae cognitio’) were regarded as legally binding. Besides, the authority of the supreme court’s judgments was further increased in the case of analogous decisions in similar matters. The usus fori of the court was regarded as directly legally binding: according to the common practice of the binae iudicaturae, two identical decisions of the Sacro Regio Consiglio would lead to the creation of a consuetudo iudicandi, bringing about the consolidation of a coherent and standard jurisprudential trend or stylus curiae within the Reign. In fact, the decisions delivered by the Sacro Regio Consiglio were considered legally binding not only for the great tribunal itself, but also for all the inferior courts of the Kingdom, which were bound to make their judgments in conformity with the decisiones of the supreme court (even if contra legem), because such decisions were pronounced by technically and professionally superior doctores iuris.12 Should the inferior courts not adhere to 9  T. Grammatico, Decisiones Sacri Regii Consilii Neapolitani, Venice, 1588, affirmed that ‘Sacrum Regium Consilium debet ministrare justitiam facti veritate inspecta, et juris solemnitatibus omissis. … Domini Consiliarii de Sacro Consilio sunt judices superiores … et possunt judicare secundum conscientiam’, dec. [decisio] 19, 89; ‘quod potest Sacrum Consilium judicare secundum conscientiam … quod debet attendere ad veritatem principaliter potius quam ad subtilitatem … in curiis parlamenti procedatur juris solemnitatibus non servatis, sed sola facti veritate inspecta’, dec. 63, 353; ‘Sacrum Consilium consuevit judicare secundum veritatem et aequitatem naturalem, et habet supremam jurisdictionem, et principem repraesentat’, dec. 76, 477. 10  M. de Afflictis, Decisiones Sacri Regii Consilii Neapolitani, Venice, 1584, dec. 383, para. 8; ‘Sacrum consilium repraesentat personam Regiam’, dec. 120, para. 6. 11  De Afflictis, Decisiones: ‘Sententiae … habent vim generalis legis in Regno’, dec. 383, para. 8; ‘ista est nova decisio Sacri Consilii, quae habet vim legis, et sic facit jus’, dec. 169, para. 9; ‘nunc est decisus per sententiam regis cum Consilio, quae facit jus universale in Regno’, dec. 190, para. 7. 12  ‘Decreta Sacri Consilii ut leges habendae sunt’, L. Giustiniani, Nuova colle­ zione delle prammatiche del Regno di Napoli, vol. 11, Naples, 1805, tit. CCIX, pramm. LXII, pp. 83–4.

424

D. Freda

the decisiones of the Sacro Regio Consiglio, the latter could issue a summons and decide the case per saltus (i. e. directly, without a previous pronouncement of an inferior court) or, alternatively, it could resort to the ius corrigendi, acting as in appeal against their judgments or, finally, it could declare the iniustitia or nullitas ipso iure of a decision pronounced by an inferior court ‘contra stylum’ or even ‘contra jus commune’.13 In fact, although no rule of stare decisis had been formally affirmed, and although the decisiones of the Sacro Regio Consiglio were not officially regarded as sources of law, the court tended to consider them as bearing vis legis (the force of law) in practice and, consequently, as being binding for the future. In conclusion, the decisions of the Sacro Regio Consiglio played the role of effective sources of law: the jurisdiction of the supreme court theoretically included the potestas condendi leges (the power to make law). The theory of the vis legis of the decisiones of the Sacro Regio Consiglio − which were published in numerous collections widely circulating inside and outside the Neapolitan Kingdom14 − reflected a topos in the juridical culture destined to be adopted by most of the European superior courts of the 16th century. Nevertheless, and although there is general agreement as to the undisputed jurisprudential character of the ius commune, the binding vis legis of the decisiones of the Sacro Regio Consiglio in practice has been recently questioned by legal historians, who have noted the distance between the theoretical authority of judicial precedents affirmed by the Neapolitan judges and advocates (as, e. g., Matthaeus de Afflictis in primis) and the real judicial practice of the court, and the presence of a gap between lawyers’ theories and real legal practice. In particular, scholars have highlighted the ideological character of the Neapolitan lawyers’ insistence on the binding authority of the judicial precedents of the Sacro Regio Consiglio, aimed at celebrating and increasing the powers of the superior court and of the corporation of lawyers. To such a theoretical affirmation by the lawyers corresponded, in practice, the absence of any official theory of the vis legis of judgments of the Sacro Regio Consiglio, the private and unofficial status of the collections of decisiones, their doctrinal character (sometimes they resembled more a tractatus than reports 13  On the relationship between the Sacro Regio Consiglio and the inferior courts of the Kingdom see, further, M. N. Miletti, Stylus judicandi. Le raccolte di ‘decisiones’ del Regno di Napoli in età moderna, Naples, 1998, pp. 195–215. 14  The most important collections between the second half of the 15th and the first half of the 17th centuries are De Afflictis, Capece, Grammatico, Minadoi, De Franchis and Tapia. The decisiones of the Sacro Regio Consiglio have been studied by Miletti, Stylus judicandi, and idem, Tra equità e dottrina. See, for the various editions of the extant collections, M. Ascheri, Tribunali, giuristi e istituzioni dal medioevo all’età moderna, Bologna 1995, pp. 211 ff.

The Sacro Regio Consiglio of Naples, 15th–17th century



425

of cases, with a prevailing attention on the part of their authors to the abstract and theoretical aspects of cases rather than to the decision itself, very often not mentioned), the frequently contradictory content of the supreme tribunal’s decisions, and the usual recourse by the superior court to the practice of the révirement (i. e. the faculty to change its judicial approach and contradict its previous decisions, reflecting its sovereign powers).15 For the same reasons, notwithstanding the recognized existence of the obligation to adhere to the stylus of the Sacro Regio Consiglio on the part of the inferior courts, the difficulty of applying this rule in practice has been noted by legal historians, who tend to believe that such a rule was applied only approximately. In conclusion, it seems that the Neapolitan lawyers’ theories corresponded more to an ambition of the doctores than to forensic reality: in fact, such theories appear to be abstract, self-reinforcing and continuously contradicted by judicial practice, while the decisiones of the Sacro Regio Consiglio appear to enjoy only a limited authority in practice.16 It is also necessary to take into consideration the absence of any duty to express the reasons (i. e. the ratio decidendi or legal grounds) for its judgments – the vota expressed by the judges of the Sacro Regio Consiglio were, in fact, required to remain secret −, and the consequent difficulty in holding its decisiones as judicial precedents binding for the future. The great tribunal (together with the Senati of Northern Italy), was not required to give reasons for its judgments: being a ‘sovereign’ court, it asserted that it was not bound to give account for its judgments, formally because it boasted of administering justice in nomine principis, who kept the law in scrinio pectoris (in his heart) – hence, again, the sacredness of its decisions – but, as a matter of fact, to preserve its power and autonomy in order to be able to escape, in this way, from the monarch’s control.17 The duty to express the reasons for its this sense, see Miletti, Tra equità e dottrina, pp. 53–81. Stylus judicandi, pp. 100–215. Vallone, Le ‘Decisiones’, pp. 58 ff., attributed only ‘persuasive’ authority to the Neapolitan decisiones because of their unofficial status; while G. P. Massetto, ‘Sentenza’ (diritto intermedio), in: Enciclopedia del diritto, 41, Milan, 1989, pp. 1203 ff.; and R. Savelli, Tribunali, ‘decisiones’ e giuristi. Una proposta di ritorno alle fonti, in: G. Chittolini/A. Molho/P. Schiera (eds.), Origini dello Stato. Processi di formazione statale in Italia tra medioevo ed età moderna, Bologna, 1994, p. 441, similarly noted the contradictory character of the lawyers’ theories in the matter of vis legis of the decisions of the other supreme courts. 17  According to M. Taruffo, L’obbligo di motivazione della sentenza civile tra diritto comune e Illuminismo, in: La formazione storica del diritto moderno in Europa, Atti del III Congresso internazionale della Società italiana di Storia del diritto, vol. 2, Florence, 1977, pp. 598–633, the duty of some of the great tribunals to express the reasons for their judgments was an instrument of control by the monarchs of the European states; while V. Piano Mortari, Gli inizi del diritto moderno in Europa, Naples, 1980, pp. 427–430, regarded it as a sign of the enforcement of political 15  In

16  Miletti,

426

D. Freda

decisions was imposed upon the Neapolitan great tribunal in 1774, but in fact it was only in force for fifteen years and then abrogated.18 3. The other great tribunals of the Neapolitan Kingdom The Regia Gran Corte della Vicarìa was formed by five judges (a President or Reggente, usually chosen from amongst noblemen, and four iuris­ periti), but with time their number was destined to increase, first to six, then to twelve members. The superior court was divided into two ‘Udientiae’: a civil chamber and a criminal chamber, but the number of sections increased to four between the end of the 16th and the beginning of the 17th centuries. The Gran Corte della Vicarìa had, in addition to its previously mentioned general competence at first instance in criminal matters, an exclusive jurisdiction over crimes committed by public officers.19 Besides this, it judged in matters of imprisonment, revolts and atrocious crimes (e. g. murder). The supreme court was also endowed with extraordinary powers: it could use torture and the death sentence. For civil matters, the great tribunal had a concurrent competence with the Sacro Regio Consiglio as a court of first instance for the city of Naples and for the province of Terra di Lavoro and, at the same time, as an appellate court for the decisions of the provincial Udienze. Furthermore, all kinds of miserabiles personae (e. g. widows, orphans and paupers) could resort to the Corte della Vicarìa per saltus (i. e. directly, without previous recourse to an inferior court).20 Against the decisions of the court it was possible to resort to the Sacro Regio Consiglio. But, although the Regia Gran Corte della Vicarìa was hierarchically subordinate to the Sacro Regio Consiglio – at least theoretically – and was subjected to the Regia Camera della Sommaria and to the Consiglio power in the hands of the European absolute monarchs. See further, on this theme, Massetto, Sentenza, pp. 1224–1245. 18  R. Ajello, Il tempo storico delle ‘riflessioni’, nota critica alle Riflessioni poli­ tiche di Gaetano Filangieri, Naples, 1982, highlighted that, still in the 18th century, the Sacro Regio Consiglio reaffirmed that the court must answer only to the king, while the subjects had the duty to blindly trust the decisions of the great tribunal. 19  ‘Causas inter criminales, praesertim in quibus vel de capite, vel membri abscissione agitur, tractari, decernique Magna in Vicariae Curia jubemus, ad quam proprie criminalium causarum cognitio spectat, non autem in Consilio, ubi de causis civilibus, non de criminalibus cognosci solitum est, nisi forte de lesae Majestatis crimine ageretur, vel aliud urgenti ex causa, eidem Consilio visum fuerit. Criminis lesae Majestatis cognitio nobis vel judicibus per nos delegatis, sive delegandis, reservatur’: Giustiniani, Nuova collezione, vol. 11, tit. CC, Pramm. XXXVII, p. 68. 20  See, for further details on the structure and competences of the great tribunal, Colussi, Diritto, istituzioni, amministrazione della giustizia, pp. 53–8.



The Sacro Regio Consiglio of Naples, 15th–17th century

427

Collaterale too, there were frequent conflicts of jurisdiction between the two superior courts in practice as their competences were often overlapping. The Gran Corte della Vicarìa was also able to impose its stylus on the inferior courts, which had a ‘deminuta potestas’ (inferior power) only: nevertheless, they also elaborated their own local styli or usus fori, binding only upon themselves but subject, in any case, to the norms of the ius commune and statute law. The Regia Camera della Sommaria, derived from the office of the Gran Camerario, was of Norman origin (an officer who had the duty to administer the finances of the Kingdom and who acquired with time jurisdiction in matters of public finance), and was established by King Alfonso in the mid15th century. It had an exclusive jurisdiction in administrative and financial matters: it seems that the name itself of the court derived from the fact that it examined the private interests of the king (‘camera’), and the way accounts were heard (‘summariae’). The great tribunal was presided over by a Luogotenente (lieutenant to the Gran Camerario) and formed by lawyers and accountants (the Razionali). There were two categories of judges: the presidenti and the giudici di cappa corta or idioti (as they were not expert in law). In 1596 the superior court was divided into two sections or rotae, each formed by three legisperiti and one ‘idiot’: one of the sections had financial competences, the other one exercised jurisdiction. In 1637 a third rota was added, and the number of the judges of the court was brought to a total of twelve members, eight lawyers and four ‘idiots’. The Regia Camera della Sommaria exercised a broad power of control over the activity of the other courts in the financial field, extended to civil and criminal matters: when the Internal Revenue acted as plaintiff or defendant in a case discussed in any other court, this case had to be referred to the Regia Camera della Sommaria. Besides, a prammatica (i. e. a statute) enacted in 1595 established that in the event of a financial interest (however slight) on the part of the Internal Revenue in a case discussed at the Sacro Regio Consiglio, the Regia Camera had the right to send the Avvocato fiscale or one of its procurators to take part in the hearings: without the presence of such a magistrate, no effective decision could be taken by the superior court.21 Last but not least, the Regia Camera della Sommaria was an appel21  ‘… sancimus in posterum perpetuo, ut nullius judex cujuscumque fori extiterit, in causa quae directe, vel indirecte, vel quocumque modo Fisci interesse agatur, sive ea civilis, seu criminalis, vel mixta fuerit, ad definitionem, prolationemque sententiae, vel ad aliquos actus, Fisci, juribus praejudicantes, procedere valeat nisi prius Advocatum, Procuratoremque Fiscales, jura fisci proponentes audieri. Cui sanctioni, si judex non potuerit, ejus sententiam ipso jure nullam, processosque, et acta causae ejusmodi nullius momenti, roborisque esse statuimus. Insuperque judice ipsum in multa, nostrae Majestatis arbitrio reservatam incidisse declaramus’: Giustiniani, Nuova colle­

428

D. Freda

late court for the decisions of all the inferior courts in matters of public finance, while against its decisions it was possible to resort to the Sacro Regio Consiglio. The limits of the competences of the Sacro Regio Consiglio and of the Regia Camera della Sommaria – which were often concurrent − were not entirely clear, so clashes of jurisdiction were frequent between them.22 Finally the Consiglio Collaterale, a king’s council formed by some of the best lawyers of the Neapolitan Kingdom and endowed with judicial and advisory powers, was established during the Spanish Viceroyalty in 1504.23 The Vicerè, usually a member of the Spanish aristocracy, represented the persona principis − he was to be the alter ego of the monarch − and was consequently endowed with supreme authority and extremely wide powers not only in civil but also in military matters. He was regarded as the supreme jurisdictional organ of the Kingdom, above the observance of the ordo iudiciarius itself and superior to every other judge: he was able to create law and to control its exact application, to decide according to conscience and to derogate from the judicial powers of every other superior or ordinary court. As the power of the Vicerè was basically unlimited, a council was established in order to balance it: the Consiglio Collaterale (i. e. a Council a ­latere of the Vicerè).24 The Consiglio Collaterale was composed by two ‘sections’: the Colla­ terale ‘di cappa corta’, formed by noblemen, and the Cancelleria, formed by lawyers, the powerful Reggenti, who exercised jurisdiction. The powers and the functions of the superior court, initially formed by three judges (called Consiglieri Collaterali, Regi Auditori or Reggenti di Cancelleria), later by four, then by five legisperiti, increased so much during the first half of the century (also in correspondence to the gradual decline of the Regia Gran Corte della Vicarìa) that in practice the tribunal became the supreme politizione, vol. 11, tit. CC, De officio Sacri Regii Consilii, pramm. XXXV, 67; ‘… causae inter privatos, Fiscumque nostro in Consilio, sive aliis in tribunalibus, curiisve pendentes, eandem ad Cameram originalibus suis cum processibus devolutas haberi mandamus’, Pramm. XXXVII, p. 68. 22  Cf., for a more detailed description of the origins, competences and evolution of the great tribunal, Colussi, Diritto, istituzioni, amministrazione della giustizia, pp. 41–9. 23  According to Pescione, Corti di giustizia, pp.  229–230, the council was formed by lawyers (Auditori) who counselled the king in legislative and judicial activity by the 15th century. 24  See, for a more detailed history of the Consiglio Collaterale, M. L. Capograssi Barbini, Note sul Consiglio Collaterale del Regno di Napoli, in: Samnium, 38, 1965, pp. 202–231; Colussi, Diritto, istituzioni, amministrazione della giustizia, pp. 24–33. For some critical notes on the great tribunal and its relationships with the other Neapolitan superior courts, cf. also G. Galasso, Storia d’Italia. Vol. 15/2: Il Regno di Napoli. Il Mezzogiorno spagnolo (1494–1622), Turin, 2005.



The Sacro Regio Consiglio of Naples, 15th–17th century

429

cal, legislative, jurisdictional, military, financial and administrative authority of the Neapolitan Kingdom. In 1593 it would even be formally enacted that the Vicerè could not quash the decisions of the Consiglio Collaterale and that every communication on his part would be submitted for approbation to the Cancelleria. In practice, the supreme court came to appropriate the initial functions and powers of the Vicerè himself. The Consiglio Collaterale exercised judicial, consulting, and chancery functions – it issued prammatiche (statutes), appointed local officers, exercised control over the provinces, was in charge of financial and military policy, and exercised jurisdiction controlling the other superior courts of the Kingdom. It was consequently destined to ‘fight’ against the Sacro Regio Consiglio for the exercise of jurisdiction. In particular, with time (since the beginning of the 17th century) the Consiglio Collaterale tended to become a sort of superior court of appeal for all the decisions of the Sacro Regio Consiglio − despite the formal supremacy and independence of the latter from any other court − and of all the other great tribunals of the Kingdom, whose judgments were subjected to its control. So conflicts of jurisdiction become very frequent between the two superior courts, each willing to affirm its own praeminentia (pre-eminence) in the Neapolitan legal system. 4. The normative chaos: the prammatiche Such a complicated relationship between the supreme courts of the Neapolitan Kingdom was possible since in the Kingdom many sources of law, various and overlapping, coexisted: roman-canon law, iura propria, ius Regni, custom (consolidations of norms of various origins, the so called ritus followed by the courts, regarded as ratified and collected by the sovereign himself, and consequently considered equal to leges),25 together with doctrinal opinions and judicial precedents of all ages and provenances.26 Each of these normative sources could govern actual cases discussed in court within 25  The ritus of the Regia Gran Corte della Vicarìa were published and commented by P. Caravita, Super ritibus Magnae Curiae Vicariae Regni Neapolis, Venice, 1586, and by C. Petra, Commentaria luculenta et absoluta in universos ritus Magnae Curiae Vicariae Regni Neapolitani, Naples, 1664–1693; the ritus of the Regia Camera della Sommaria by G. de Gaeta, Ritus Regiae Camerae Summariae Regni Neapolis, Naples, 1689; the ritus of the Sacro Regio Consiglio, apart from an attempt by Moscatello, were never collected. According to Vallone, Le ‘decisiones’, pp. 74 ff., in addition to the prammatiche and the ritus, the stylus curiae of the Sacro Regio Consiglio produced limited effects on the procedure followed by the court itself. 26  Miletti, Tra equità e dottrina, p. 105, refers to the existence of a legislative mixtura.

430

D. Freda

a complicated, overabundant, chaotic, overgrown and unknowable (because overgrown) system, which allowed a large use of discretion on the part of the great tribunals. With regard to legislation, in addition to the Liber Augustalis and the capitula and ritus of Angevin origins (sources concerning procedural rules), a huge number of statutes (the so called prammatiche) were in force, added cumulatively over time to form an ever-increasing body of legal rules. And the most recent prammatiche were regarded as possessing more vis coactiva (legal force) than older ones. In any case, the superior courts would not permit the imposition of an established hierarchy of legal sources by any external authority: being the supreme representatives of the monarch, they considered themselves as implicitly legitimized to pronounce a form of permanent and authentic interpretation of law.27 It should not be forgotten that the decisiones of the great tribunals of the Neapolitan Kingdom were also called constitutiones Regni Neapolis, which clearly demonstrates that the decisions of the superior courts (with particular reference to the Sacro Regio Consiglio) were considered as being a fundamental and constituent part of the ius Regni.28 The most ancient collection of prammatiche of the Kingdom of Naples was printed in 1531 by Giovannantonio de Canero. A new collection was published in Naples in 1533 and reprinted in 1545. Two more collections, containing the prammatiche concerning the Sacro Regio Consiglio, the Consiglio Collaterale, the Regia Gran Corte della Vicarìa and the Regia Camera della Sommaria, were subsequently printed in 1556 and reprinted in 1559. The first important collections were edited by Prospero Caravita (1566), whose work was reprinted after his death with the addition of some new statutes, by Fabio d’Anna (1587), and by Scipione Rovito (1590). The collection by Rovito had many further editions in the following years and was completed by Michelangelo Gizio, whose work was printed in 1665. The collection by Biagio Altimari was then published, drafted with the assistance and revised by Carlo Calà, Reggente of the Collaterale (1682), a collection which was followed by a further work supplementing its contents. The most recent and important collections are the ones by Domenico Alfeno Vario, published in 1772, and by Lorenzo Giustiniani, published in the years 1803–1805. The first collection is, in comparison with the older ones, much better organized for what concerns the order of the titles of the differ27  While according to Rovito the prammatiche were to be considered part of the ius Regni, De Franchis believed that only the Sacro Regio Consiglio could interpret them with certainty: there was a ‘legislative absolutism tempered by the courts’, Miletti, Tra equità e dottrina, pp. 105–121. 28  Miletti, Stylus judicandi, 24.



The Sacro Regio Consiglio of Naples, 15th–17th century

431

ent subjects: nevertheless, it was subsequently supplemented by a work by Francesco Leggio, published in 1790, adding the prammatiche issued after its publication. The collection by Lorenzo Giustiniani was meant to be a new, complete and exhaustive work, containing all the extant prammatiche: the past ones, already inserted in the existing collections, together with the new ones, issued after the publication of the previous works. Giustiniani put the statutes in alphabetical order, ordered them by title and listed their dates. Then he added a chronological table of contents and an index of the different matters there examined.29 For what particularly concerns the Sacro Regio Consiglio, the most interesting prammatiche are contained in the titles de officio iudicum (et aliorum officialium) and de officio Sacri Regii Consilii. The first title mainly refers to the competence and duties of the judges of the superior courts of the Kingdom of Naples, Sacro Regio Consiglio included; the second one concerns the procedure followed by the Sacro Regio Consiglio, with particular reference to the times and modes of voting by the judges, the drafting of legal deeds and the execution of the decisions of the great tribunal. In relation to the voting process, as we have seen, the judges of the Sacro Regio Consiglio were bound not to disclose the content of their votes: the Prammatica V de officio iudicum established that the vota ‘tam ante, quam post latam sententiam arcane velari silentio’, prohibiting the judges ‘votorum sententiam, vel ante, vel post decisionem causarum revelare’, and threatening them ‘ultra irae, et indignationis nostrae gravissimae, et privationis officiorum poenas, alias nostro arbitrio reservatas, exequi’.30 This rule was probably aimed at avoiding the recusatio of the judges of the court, who had already expressed the reason of their votes in a previous judgment, in case a reclamatio was brought against the final decision of the great tribunal. The decisions of the Sacro Regio Consiglio could have the form of a sententia or of a decretum, but the difference between these is not entirely clear: it seems that exact definitions were missing, although the decretum generally 29  An attempt to arrange (and translate into Italian) the huge number of the extant prammatiche has been made by F. de Jorio, Introduzione allo studio delle Prammatiche del Regno di Napoli, Naples, 1777. The situation was such that the author could write in the Preface that ‘there are many statutes fallen into disuse, many norms repeated one thousand times, some of them controversial because of the extant doubts, and almost all written with nauseating verbosity and accompanied by long prologues, so that young students are dismayed, and feel little or, better, no pleasure in managing them’. See finally, for a comment of the prammatiche, G. Grimaldi, Istoria delle leggi e magistrati del Regno di Napoli, Naples, 1770. 30  The judges must not reveal their decision, either before or after giving it; at the same time they were prohibited to reveal their votes. Otherwise they would have risked being deprived of their office: Giustiniani, Nuova collezione, Vol. IX, Tit. CXCIX, De officio judicum, Pramm. V, § 10, 350.

432

D. Freda

concluded a summaria cognitio (summary hearing) and had an interlocutory character, while the sententia was final. For what particularly concerns the procedure followed by the Sacro Regio Consiglio when in camera consilii, the Prammatica XIII established that it consisted of five different stages: 1) the relatio causae, i. e. the exposition of the case by one of the judges appointed by the President of the superior court; 2) the voting on the part of every judge of the great tribunal, who could orally express the reasons of their own votes; 3) the discussion, which ended with the conclusio by the President who, after considering the votes given by the judges, announced the verdict; 4) the drafting of the conclusion on a notula which, once approved by the court, was signed by the President and transmitted to the Secretary; 5) finally, the annotation in registro by the Secretary of the vota expressed by the judges, together with the conclusion contained in the notula, followed by the publication of the decision.31 5. Rise and fall of a superior court: the Sacro Regio Consiglio and the Consiglio Collaterale The great power and authority of the Sacro Regio Consiglio were destined to be rescaled between the 16th and the 17th centuries. As we have seen, the Regia Gran Corte della Vicarìa, notwithstanding the strong powers exercised and the large number of cases managed, was regarded as subject to the Sacro Regio Consiglio (although such a subjection expressed, at the same time, a functional dialectic between the two great tribunals). The fact that two out of the five judges of the superior court were to be members of the Sacro Regio Consiglio contributed as well to giving credit to the decisions of the great tribunal. Besides, before deciding in matters of perjury, the Regia Gran Corte della Vicarìa had to wait for a special licentia by the Sacro Regio Consiglio; furthermore, when the Sacro Regio Consiglio sent to the Gran Corte della Vicarìa the file of a case so that the court could act on appeal, it specified in detail all the future legal deeds that the great tribunal had to carry out. Finally, if it is true that the ritus of the Regia Gran Corte della Vicarìa applied to all the inferior courts of the Neapolitan Kingdom. This represented the heritage of an old pre-eminence, more formal than substantial: in fact, the supreme court, which could theoretically impose its stylus on the inferior courts, was not able to exercise control over their activity in practice. Things were different for what concerns the relationships between the Sacro Regio Consiglio and the Regia Camera della Sommaria. As we have pre31  Giustiniani, Nuova collezione, Pramm. XIII, § 15, 365. See, for further details on the procedure followed by the Sacro Regio Consiglio, Vallone, Le ‘decisiones’, pp.  9 ff.



The Sacro Regio Consiglio of Naples, 15th–17th century

433

viously seen, already in the mid-16th century Kingdom of Naples there was in practice a double apex within the administration of justice: the Sacro Regio Consiglio on one hand, the Regia Camera della Sommaria on the other. The relationship between the two superior courts was almost equal as the Regia Camera della Sommaria, thanks to its peculiar competences in financial matters, was more autonomous than the other great tribunals and exempt from any procedural subjection to them.32 Its decisions, differently from the decisiones of the Regia Gran Corte della Vicarìa, were more rarely subjected to revision by the Sacro Regio Consiglio, while only the Consiglio Colla­ terale could address directives to it. Besides, as we have already seen, the Sacro Regio Consiglio was bound, in the case of an interest on the part of the Internal Revenue, to adjourn the examination of the cases in court in order to wait for a pronouncement by the Regia Camera della Sommaria over prejudicial matters. Furthermore, both the great tribunals exercised the jurisdiction ‘coram Rege’; both enjoyed the privilege of an immediate execution of their decisions; both had to transmit to each other the original copy of the legal deeds concerning any trial in a matter of finance. Interference in their activities was obviously unavoidable: sometimes the same cases were contemporaneously discussed in both of the great tribunals (while one court judged in matters of private law, the other one dealt with all the aspects connected to the interests of the Internal Revenue); at the same time, the Avvocato fiscale had the right to take part in every trial pending in every other superior court, in the event that prejudice to the Internal Revenue could derive from the judgment (although, in fact, the Sacro Regio Consiglio admitted the presence of the Avvocato fiscale only to avoid remission of the case itself to the Regia Camera della Sommaria). Nevertheless, the two superior courts were competent and acted within two separated spheres of interest, each autonomous and fundamental. The Sacro Regio Consiglio, superior to the Regia Gran Corte della Vicarìa (which was destined to decline during the 16th century) and – at least theoretically − equal to the Regia Camera della Sommaria, was in fact, during the 16th century, the fulcrum of the Neapolitan legal system. And the great tribunal considered itself such a fundamental jurisdictional organ of the Kingdom that it claimed to exercise the function of arbiter super partes during the frequent conflicts occurring between the different superior courts, affirming in this way the substantial unity of jurisdiction within the Kingdom of Naples.33 The situ32  G. Muto, Magistrature finanziarie e potere ministeriale a Napoli alla metà del Cinquecento, in: Diritto e potere nella storia europea, Atti in onore di Bruno Paradisi, Florence, 1982, p. 500; Comparato, Uffici e società, pp. 65–6. 33  See, further, on the relationships between the Sacro Regio Consiglio and the other ordinary or special courts of the Neapolitan Kingdom, with particular reference

434

D. Freda

ation was destined to change with the establishment of the Consiglio Colla­ terale at the beginning of the 16th century. Conflicts between the superior courts of the Neapolitan Kingdom appear to be more frequent between the end of the 16th and the beginning of the 17th centuries in accordance with the will of the Spanish to take advantage of the existing competition between the great tribunals of the Kingdom in order to increase, in this way, their own political and economic power in Naples. In fact, the creation of the Consiglio Collaterale, a council separated from and prevailing over the other superior courts of justice of the Kingdom, was part of the programme and politics of centralization by the Spanish Vicerè.34 Consequently, especially due to the reinforcement of the judicial ‘section’ of the Consiglio Collaterale (the Cancelleria), the balance of powers was destined to change: the powers of the Sacro Regio Consiglio were compressed, while, at the same time, the Regia Camera della Sommaria was radically developed in an authoritarian direction (1533–40).35 For what particularly concerns the Camera della Sommaria, it was established that the Luogotenente had to be accountable to the Consiglio Collaterale for all his decisions. Besides this, and more generally, although the decisiones of the Sacro Regio Consiglio and of the Regia Camera della Sommaria were formally regarded as final, it was always possible to appeal directly to the sovereign in order to obtain the concession of gratia, which in practice meant the possibility to apply to the Consiglio Collaterale, which had to pronounce on the matter and which very often jeopardized the previous decisions of the other superior courts. Furthermore, the Vicerè, aiming to exercise control over the judges of both great tribunals, tried to obtain their favour by increasing the power of lawyers to the detriment of noblemen, who were marginalized by the superior courts.36 The Consiglio Collaterale would become the apex of the legal system at the end of the 16th century: as it was a supreme council a latere of the ­Vicerè, it was regarded as necessarily above the other superior courts and, consequently, above the Sacro Regio Consiglio itself. And the leadership exercised by the latter between the 15th and 16th centuries was destined to pass to the Consiglio Collaterale during the 17th century. The subordination of the Sacro Regio Consiglio, partially deprived of its authority by the Consiglio Colla­ terale, would give place to harsh conflicts and, consequently, to a strong ­rivalry between the two great tribunals. In practice, three supreme courts to the collection of decisiones by De Franchis, Miletti, Tra equità e dottrina, pp. 169– 216. 34  Galasso, Il Regno di Napoli, p. 473. 35  Miletti, Tra equità e dottrina, p. 219; Cernigliaro, Sovranità e feudo, p. 100. 36  See further Muto, Magistrature, pp. 48 ff.



The Sacro Regio Consiglio of Naples, 15th–17th century

435

would remain in Naples: first, the Consiglio Collaterale, above and at the head of all the other great tribunals of the Neapolitan Kingdom, then the Sacro Regio Consiglio and finally the Regia Camera della Sommaria, both in a ‘subordinate’ position in comparison with the first one.37 In any case, an accommodation between old and new judicial organs would take place, a sort of acceptance of the old structure, together with an exercise of control over it on the part of the newer body, the Consiglio Collaterale, to which the greatest functions and powers of its predecessor, the Sacro Regio Consiglio, were to be transferred. But in fact, if it is true that the Consiglio Collaterale would be devoted to the exercise of political and administrative powers, while the Sacro Regio Consiglio would be deputed to the administration of justice, the latter would be frequently subjected to turnover, movement of its personnel, and to new appointments, clear affirmation of the loss of power and of the subjection of the great tribunal to the sovereign.38 The President of the Sacro Regio Consiglio, whose powers would be dramatically reduced during the 17th century (in 1632 a decree issued by the Consiglio Collaterale denied that he could decide cases, establishing that he could only supervise their instruction), together with the judges of the superior court, would try and defend their role and dignity, complaining and fighting against the continuous abuses practised by the Consiglio Colla­ terale: the Collaterale would often intervene, regardless of the existence (or not) of any competence on its part, in cases already examined and decided by the Sacro Regio Consiglio, inhibiting in fact – thanks to a bill of nihil innovare – the exercise of jurisdiction on the part of the great tribunal and, conse­quently, causing delay and inefficiency in the administration of justice in the Kingdom. In conclusion, the Sacro Regio Consiglio, created as the expression of the power of the king during Aragonese rule, would start to lose its authority at the end of the 16th century, when the political and judicial powers, personified by the powerful Reggenti of the Cancelleria, would mostly pass to the Consiglio Collaterale, an organ endowed with a strong political and legislative character. The Sacro Regio Consiglio, initially born as a political organ, then specialized as a superior court of justice deciding cases in nomine Regis, still formally remaining the supreme jurisdictional organ of the Neapolitan Kingdom, would be finally forced to use its powers to claim its own authority against the powers now exercised by the Consiglio Collaterale. 37  According to Miletti, Stylus judicandi, pp. 40–1, the change of the relationships between the supreme courts of the Neapolitan Kingdom is clearly recognizable in the collections of decisiones, as their authors concentrated on the decisions of Sacro Regio Consiglio during the 16th century, and on the judgments of the other supreme courts from the beginning of the 17th. 38  Galasso, Il Regno di Napoli, pp. 416 ff.; Ajello, Il problema storico, p. 61.

436

D. Freda

Bibliography Ajello, R., Il tempo storico delle ‘riflessioni’, nota critica alle Riflessioni politiche di Gaetano Filangieri, Naples, 1982. Ajello, R., Il problema storico del Mezzogiorno. L’anomalia socioistituzionale napoletana dal Cinquecento al Settecento, Naples, 1994. Ascheri, M., Tribunali, giuristi e istituzioni dal medioevo all’età moderna, Bologna, 1995. Capograssi Barbini, M. L., ‘Note sul Consiglio Collaterale del Regno di Napoli’, Samnium, Vol. 38, 1965, 202–231. Caravita, P., Super ritibus Magnae Curiae Vicariae Regni Neapolis, Venice, 1586. Cassandro, G., ‘Sulle origini del Sacro Regio Consiglio napoletano’, in: Studi in onore di Riccardo Filangieri, Vol. II, Naples, 1959, 1–17. Cernigliaro, A., Sovranità e feudo nel Regno di Napoli, 1505–1557, Vol. I, Naples, 1983. Colussi, R., ‘Diritto, istituzioni, amministrazione della giustizia nel Mezzogiorno vicereale. La struttura regalistica’, in: Storia del Mezzogiorno. Vol. XI: Aspetti e problemi del medioevo e dell’età moderna, Naples, 1993, 19–98. Comparato, V. I., Uffici e società a Napoli (1600–1647). Aspetti dell’ideologia del magistrato nell’età moderna, Florence, 1974. De Afflictis, A., Decisiones Sacri Regii Consilii Neapolitani, Venice, 1584. De Gaeta, G., Ritus Regiae Camerae Summariae Regni Neapolis, Naples, 1689. De Jorio, F., Introduzione allo studio delle Prammatiche del Regno di Napoli, Naples, 1777. Freda, D., ‘Rise and Fall of a Superior Court: the Sacro Regio Consiglio v the Consiglio Collaterale’, Forum historiae iuris, 12 September 2016, at https://forhistiur. de/2016-09-freda/2016. Galasso, G., Storia d’Italia. Vol. 15/2: Il Regno di Napoli. Il Mezzogiorno spagnolo (1494–1622), Turin, 2005. Grimaldi, G., Istoria delle leggi e magistrati del Regno di Napoli, Naples, 1770. Giustiniani, L., Nuova collezione delle prammatiche del Regno di Napoli, Naples, 1805. Grammatico, T., Decisiones Sacri Regii Consilii Neapolitani, Venice, 1588. Massetto, G. P., ‘Sentenza’ (diritto intermedio), in: Enciclopedia del diritto, Vol. XLI, Milan, 1989, 1205–1206. Miletti, M. N., Tra equità e dottrina. Il Sacro Regio Consiglio e le ‘decisiones’ di V. De Franchis, Naples, 1995. Miletti, M. N., Stylus judicandi. Le raccolte di ‘decisiones’ del Regno di Napoli in età moderna, Naples, 1998.



The Sacro Regio Consiglio of Naples, 15th–17th century

437

Muto, G., ‘Magistrature finanziarie e potere ministeriale a Napoli alla metà del Cinquecento’, in: Diritto e potere nella storia europea, Atti in onore di Bruno Paradisi, Florence, 1982, 481–500. Pescione, R., Corti di giustizia nell’Italia meridionale, Milan/Rome/Naples, 1924. Petra, C., Commentaria luculenta et absoluta in universos ritus Magnae Curiae Vicariae Regni Neapolitani, Naples, 1664–1693. Piano Mortari, V., Gli inizi del diritto moderno in Europa, Naples, 1980. Ryder, A., The Kingdom of Naples under Alfonso the Magnanimo. The Making of a Modern State, Oxford, 1976. Savelli, R., ‘Tribunali, “decisiones” e giuristi. Una proposta di ritorno alle fonti’, in: Chittolini, G./Molho, A./Schiera, P. (eds.), Origini dello Stato. Processi di formazione statale in Italia tra medioevo ed età moderna, Bologna, 1994, 397–421. Taruffo, M., ‘L’obbligo di motivazione della sentenza civile tra diritto comune e Illuminismo’, in: La formazione storica del diritto moderno in Europa, Atti del III Congresso internazionale della Società italiana di Storia del diritto, Vol. II, Florence, 1977, 598–633. Vallone, G., Iurisdictio domini, Lecce, 1985. Vallone, G., Le ‘decisiones’ di Matteo d’Afflitto, Lecce, 1988.

I. CZEGUHN

The history of the supreme courts in the Iberian peninsula from the 14th century to the 18th century 1. Developments in the Kingdom of Aragón (a) The Justicia in the Kingdom of Aragón The legal order in Aragón from the eleventh to the thirteenth centuries was characterised by the king’s respect for regional and local law. These regional and local laws were epitomised in the Fueros of Aragón (Aragonese customary law), the Customs or costumas of Catalonia, the Furs of Valencia, and the Ordinaciones of Mallorca (Catalonia was acquired by Aragón through marriage in 1152, Valencia [1229–1239] and the Balearic Islands [Mallorca 1228–1232], Menorca [1233] and Ibiza [1235] were captured during the Reconquista).1 Since the middle of the thirteenth century, a political pact had been emerging, which from the very beginning had been characterised by limits to the king’s powers.2 These limitations stemmed from the preeminent position of the nobility in the Cortes (the legislative body) and from

1  Fori Regni Aragonum, Edición al cuidado de Gundisalvo García de Sancta María, Zaragoza, 1477; Fori Regni Aragonum, Zaragoza, 1496; Opus universorum fororum (intitulación tomada del colofón), Edición al cuidado de Miguel del Molino, Zaragoza, 1517; Fueros y Observancias del Reyno de Aragón, Edición al cuidado y con glosa del doctor Miguel Pastor, Zaragoza, c. 1624?; Observancias del Reino de Aragón vertidas del latín al castellano por los autores del ‘Derecho y Jurisprudencia de Aragón en sus relaciones con la legislación de Castilla’, transl. and ed. by Joaquín Marton y Gavin and Francisco Sanatpau y Cardos, Zaragoza, 1865; Pascual Savall/ Santiago Penen, Fueros, Observancias y Actos de Corte del Reino de Aragón, edición facsimilar (Ts. I y II) acompañada de un T. III con estudio preliminar, traducciones, textos complementarios e índices, edited by Juan Delgado Echeverría; Hernando Algora and Sacristán Arranz, Fuero de Calatayud, Zaragoza, 1982; Jesús Delgado Echeverría, Los Fueros de Aragón, Segunda Muestra de Documentación Histórica Aragonesa, Zaragoza, 1997. 2  Jesus Lalinde Abadia, El pactismo en los reinos de Aragón y Valencia, in: Luis Legaz Lacambra (ed.), El pactismo en la Historia de España, Madrid, 1980, pp. 113– 139, esp. at 123; Eugen Wohlhaupter, Die Entfaltung des aragonesischen Landrechts bis zum ‘Código de Huesca’ (1247), in: Studi Carlo Calisse, Milan, 1939, pp. 337– 410.

440

I. Czeguhn

the principle of the law of the land ranking higher than the king.3 This determined that the interests of the kingdom were identical to those of the various Cortes and therefore especially to those of the nobility. Except for Catalonia, where the king had agreed to a formal contract with the Principado (the name of Catalonia as a part of the kingdom of Aragón) to acknowledge all laws and institutions, it is not accurate to speak of a consensual agreement but rather of a contract imposed on the king by the nobility.4 This political influence of the nobility in Aragón put them in a position that always allowed them to be involved in the making of law in the kingdom. In Spanish scholarship this form of governance is therefore referred to as regimen pactista.5 The inclusion of the nobility in the governmental administration was initially achieved through its participation in the Cortes and, furthermore, by its influence over the judiciary.6 From 1247 (the year James I issued the Fueros of Aragón), unlike in Castile, the king’s ‘pact’ with the nobility led to a regal privilege that was always of a contractual nature. All laws that were issued by the king had to be agreed upon with the four estates of the Cortes, especially ‘with the nobility that presented itself as the protector of the interests of the empire, the Fueros and privileges granted’. The king created law ‘with the Cortes’ and, not as in Castile, ‘in the Cortes’.7 In terms of the development of the supreme judiciary, Aragon possessed a model that is unique in Europe, in which a judge ruled over the king, was the source of supreme justice and presided over the observance of the law of the land. In 1265, a meeting of the estates was held in Egea that would have great consequences for the administration of the supreme judiciary. An agreement between the king and the Cortes was incorporated into the eighth book of the Fueros, decreeing that forthwith a new office with the name of Justicia should administer the supreme jurisdiction.8 The Justicia had responsibility for the following areas of jurisdiction:

3  See also Jesus Morales Arrizabalaga, La foralidad aragonesa como modelo político: su formación y consolidación hasta las crisis forales del siglo XVI, in: Cuadernos de estudios borjanos, 27–28, 1992, pp. 99–175. 4  Rogelio Pérez-Bustamante, El gobierno y la administración de los territorios de la Corona de Aragón bajo Jaime I el Conquistador y su comparación con el régimen de Castilla y Navarra, in: X Congreso de historia de la Corona de Aragón, Zaragoza, 1980, pp. 515–536, esp. 526. 5  Lalinde Abadia, El pactismo en los reinos de Aragón y Valencia. 6  Luis Gonzalez Antón, Las cortes en la España del Antiguo Régimen, Madrid, 1989. 7  Antonio Sanchez Aranda, El derecho y las instituciones superiores de justicia de Aragón desde la baja edad media hasta el siglo XVIII (1247–1711), El Justicia mayor de Aragón, la Audiencia y el Consejo Real, Granada, 2008; Jerónimo Martel, Forma de celebrar cortes en Aragón, Zaragoza, 1641 (reprinted 1986).



The history of the supreme courts in the Iberian peninsula441

1. He adjudicated in disputes between the king and the nobility; 2. He adjudicated in disputes between noblemen; 3. He had oversight over the king to ensure that he left the Fueros of Aragón and its privileges untouched. In addition, a privilege from the year 1226 provided that the Justicia was a judge in the first instance, which demonstrates the broadening of his tasks as an institution of the judicial system during this period in Aragón. A noble lineage was required to acquire the position of Justicia. The holder was given a council of noblemen as support in the process of reaching a verdict in a given case. It was composed of members of the nobility not involved in the case in question. The office of Justicia was maintained until as late as the seventeenth century and decisively influenced the political and legal development of the state. A further important stage in the legal history of Aragón is the gathering of the estates in Zaragoza in 1283.9 At this meeting, King Peter I vowed that he and his successors would respect and observe the Fueros and privileges of Aragón as embodying the intrinsic rights of the realm. In doing so, the king met the demands of the nobility, who viewed all law in Aragón as requiring the contractual agreement of both the king and the nobility. This was to be confirmed by a renewed oath. Once a law was agreed in this way, it could also only be changed or revoked by both parties together. Furthermore, the king promised to convene a meeting of the estates once a year. The estates viewed this as necessary in order to ensure control over the king’s intervention in the administration and government. At the same gathering of the estates the jurisdiction of the Justicia was broadened. From this time on, the Justicia was responsible for arbitrating in the disputes of all estates, not merely those of the nobility. In doing so, he ceased to act solely as a judge for the nobility, but also assumed responsibility for the cities and the citizens of the county. In the Cortes of Zaragoza of 1348, the Justicia is given the designation of Justicia Mayor de Aragón. He became the guarantor and defender of the Aragonese legal system, the rights 8  Giménez Soler, El Justicia Mayor de Aragón es de origen musulmán, in: Revista de Archivos, Bibliotecas y Museos, V, Madrid, 1901, pp. 201–206, 454–465 and 625–632; Carlos López de Haro, La Constitución y libertades de Aragón y el Justicia Mayor, Madrid, 1926; Maria Martínez Sampedro, Los Justicias de Aragón bajo el reinado de Jaime I Ligarzas, vol. III, Valencia, 1971, pp. 85–96; Jorge Ribera, Orígenes del Justicia mayor de Aragón, Zaragoza, 1897; Antonio Romero, Historia y vici­ situdes de la magistratura conocida con el nombre de Justicia de Aragón, Madrid, 1881. 9  L. Gonzáles Antón, Las Uniones aragonesas y las Cortes del Reino (1283–1301), Zaragoza, 1975.

442

I. Czeguhn

of the estates, the Fueros, and the individual laws set out in these. The king’s delegate (delegado, chief executive of the king) was obliged to consult the Justicia Mayor if he had queries, or was in doubt about the application of the law, or interventions in the administration of the realm, or concerning Aragonese law.10 However, first and foremost, the Justicia Mayor had the power of veto over rulings by the king that violated the Fueros. In addition, the same meeting of estates gave the Justitia Mayor the power to appoint a deputy who was knowledgeable in the law and had successfully completed the study of law at a university. This deputy advised the Justicia in relation to remedies as well as in the application of the Aragonese law of the land and the ius commune. In 1352 the number of deputies was doubled to two and in 1528 Charles V increased the number to five. In 1442, the Cortes guaranteed the Justicia his permanence in office, and independence from the king. The latter was justified by claiming that this independence protected the Aragonese law of the land from arbitrariness on the part of any given monarch. Until the office was discontinued by Philip V in 1707 these guarantees remained in place. The struggle over the law in the Kingdom of Aragón in the fourteenth century can be clearly seen here. On the one side, the monarch tried to reinforce his influence and the privileges of his office by spreading the ius commune; on the other the nobility insisted on their privileges and tried to hold onto them and extend these – also with the objective of improving their position vis-à-vis their own vassals. This struggle is reflected in the battle over law-making. The king was determined to act independently from the estates, whilst the nobility constantly pointed to the necessity of participation by the Cortes. In the final instance, it was the nobility that won the dispute, and as a result the Aragonese law of the land ranked higher than the king. (b) The Audiencia and the Consejo Real in the Kingdom of Aragón From 1286, the king attended the Audiencia on Mondays. It was here that all complaints from around the kingdom could be publicly brought forward. The adjudicators of the Audiencia formed a tribunal, called the Tribunal de los Jueces or Tribunal de Corte.11 There is here a parallel with Castile: since the fourteenth century the court of the king in Castile had also conducted Audiencias. On Tuesdays and Fridays, the king sat in the Consejo de Aragón (Council of Aragon), where he judged appeals. This situation was maintained 10  Jesús Lalinde Abadía, Virreyes y Lugartenientes Generales en la Corona de Aragón, in: Cuadernos de Historia de España, 1960, pp. XXXI–XXXII. 11  See also especially Sanchez Aranda, El derecho y las instituciones superiores de justicia de Aragón.



The history of the supreme courts in the Iberian peninsula443

until 1344. In that year, the king restricted the responsibilities of the Audiencia to appeals. From this point in time onwards, therefore, it only decided complaints based on the gracia regia; only, that is, by means of the ‘mercy of the king’.12 These appeals could reach the Audiencia either via a normal lawsuit or without one (through the ‘course of mercy’). It then decided in a summary manner. The Audiencia was, at the same time, combined with the chancellery of the king (Audiencia y Cancilleria). In 1365, the king’s chancellor assumed the chairmanship of the Audiencia, which also included three vice-chancellors representing the realms of Aragón, Valencia and the Principality of Catalonia.13 It therefore became the regal authority for appeals across the whole kingdom. The Audiencia included two scholars of civil law and one of canon law. Three noble assessors completed the Audiencia. The stages of appeal were organised as follows: in the individual realms (Aragón, Valencia and the Principality of Catalonia), a plaintiff filed a demanda (complaint), which was followed by an appeal if necessary (this was judged by the Gobernadores Generales, who were appointed at the same time in each realm, except for Aragón; here the Justicia Mayor was still the ­authority for appeals). This exhausted the course of appellate review in the individual realms. The appeal then passed to the Audiencia of the Kingdom of Aragón. The essential character of the legal system of Aragón becomes clear when considering the following structure: if a case from the Kingdom of Aragón was decided in a summary manner by the Audiencia, the ruling was not finally binding as the plaintiff could still appeal to the Justicia ­Mayor and claim that the Audiencia had not observed the Fueros of Aragón. If the Justicia Mayor agreed with this, he revoked the ruling of the Audiencia and adjudicated himself. In Aragón the Justicia Mayor was, therefore, jurisdictionally superior to the king – even in instances of mercy and appeal. This privileging of the jurisdiction of a judge above that of the king seems to have been unique, with no comparable arrangements anywhere else in Europe. From 1344 onwards, the Consejo Real’s influence only extended to the administrative governance of the Kingdom and it functioned only as a political organ of government. By the second half of the fifteenth century, due to the limitations of regal power in Aragón, as described above, Ferdinand the Catholic spent most of his time in Castile. His chronicler, Hernando del Pulgar, wrote that Ferdinand would rather be a husband in Castile than a king in 12  Francisco Sevillano Colom, Apuntes para el estudio de la cancillería de Pedro IV el Ceremonioso, in: Anuario de Historia del Derecho Español, 1950, pp. 137– 241. 13  Angel Sesma Muñoz, Las Generalidades del reino de Aragón. Su organización a mediados del siglo XV, in: Anuario de Historia del Derecho Español, 1976, pp. 393–467.

444

I. Czeguhn

Aragón. With the Cortes of Barcelona of 1493, Ferdinand reformed the judicial system of Aragón by introducing an Audiencia to each constituent realm. These were chaired by a chancellor, a vice-chancellor, and, in the absence of both, the regente (heads) of the Chancilleria. The last change to the judicial system before 1707 was made by Charles V in 1528. In every Audiencia he constituted two tribunals, each made up of four jurists as councillors. Staffed with two fiscal agents, lawyers, paupers’ lawyers etc., the structure of the Audiencias in Aragón was now similar to the Castilian Audiencias in Valladolid and Granada. This structure of supreme judicature was maintained until the reign of Philip II, who sought to build a uniform judicial system with the help of the Inquisition and issued decrees in 1707 and 1711 reorganising the entire judicial system in the Kingdom of Aragón. This was triggered by the Aragonese uprising against his rule. Philip revoked all Fueros and completely restructured the administration of the judiciary. 2. Developments in the Kingdom of Castile A completely different development took place in Castile. Over the course of the late Middle Ages, the King of Castile maintained his position as the summus iudex. Alfonso X was the mastermind and pioneer of this school of thought. Alfonso’s political writings paint a picture drawing on Germanic legal ideas in such a manner that the relationship between the king and his subordinates appears as feudal vassalage. Rights which were granted by the king were therefore defined as ‘feuda’. The regal authority was viewed as inalienable and indivisible, meaning that the king had to reserve certain powers for himself when granting fiefs. These included the authority of royal jurisdiction and the position of being the highest instance of appeal. Subordinates were obliged to protect the king and to maintain the integrity of his dominion.14 Alfonso X’s self-perception as legislator and supreme judge also influenced his successors. This was due to his legislative accomplishments, which were of great importance for the development of Castilian legal affairs.15 The incorporation of Roman law and the adoption of the title of maiestas reinforced the king’s position as a judge.

14  See also Ernesto Mayer, Historia de las Instituciones sociales y politicas de España y Portugal durante los siglos V. al XIV., vol. 1, Madrid, 1926, p. 95. 15  Regarding Alfons X legislative work, see also Aquilino Iglesia Ferreiros, La labor legislativa de Alfonso X. el Sabio, in: España y Europa, un pasado juridico común, Actas del I. Simposio internacional del Instituto de Derecho comun, Murcia, 1986, pp.  275 ff.



The history of the supreme courts in the Iberian peninsula445

Over the course of time, however, the king neglected his role in the legal process. This is demonstrated by various complaints from the assembly of the estates.16 As a consequence, the king delegated more and more of these tasks. There were two main reasons for this. Firstly, it was the policy of Castilian kings to consolidate power and authority in one person, and, stemming from this, the expansion of centralised governmental and administrative machinery. Secondly, the complexity of Roman law, and the recognition of it, as established by the monarchs within a highly developed legal system, forcing the king to surround himself with jurists who were able to interpret and apply Roman law. Under these conditions, in 1371, an Audiencia was established, deciding in his name most cases presented to the king. Several developments preceded the establishment of the Audiencia. Alfonso’s reign had brought with it a reorganisation of the judicial system in Castile. In 1274, for the first time, judges were appointed: the so-called alcaldes de Corte (court magistrate). The court magistrates were appointed by the monarch and were dependant on him. They were selected from the individual territories and countries of the Kingdom of Castile. In the early stages, the court magistrates simply advised the monarch in his capacity as supreme judge, but soon they represented him independently as royal judicial delegates. The responsibilities of the court magistrates were varied. One advised the king in relation to his duty to decide appeals (called the Juez de las suplicaciones). In the first instance, the court magistrates sat as single judges in cases coming to the palace court (Casa y Corte del Rey) by delegation of the king. Tribunals made up of 3 judges adjudicated in cases of appeals from the territories. In 1274, the offices of judge of the nobility and alcaldes de alzadas (appeals judges) were introduced. The judge of the nobility adjudicated in disputes between noblemen; the court of appeals (alcaldes de alzadas) adjudicated those cases of the palace court that had been decided by the alcaldes de Corte in the first instance. Lastly, the alcaldes de rastro should be mentioned. These adjudicated in cases from the local territory of the court, meaning cases coming from surrounding territories within 5 leagues of the court. 16  See also Cortes de Zamora 1274, Cortes de León y Castilla (hereafter CLC) I, p. 93: ‘The king intends to keep three days a week clear for the court’; Cortes de Medina del Campo 1305, CLC I, p. 176: ‘Furthermore I was presented with the request to set aside one or two days a week to hold court’; Cortes de Madrid 1339, CLC I, p. 469: ‘So we ask you, Sir, to have the grace to save one or two days a week to hear those that come to you’; Cortes de Alcala 1348, CLC I, p. 600: ‘We were asked to designate one day a week to adjudicate those matters that the Audiencia saved for us’; Cortes de Briviesca 1387, CLC II, p. 381: ‘We set out that We shall hold a public audience three days a week, on Monday, Wednesday and Friday, to hear the petitions and other oral proposals’.

446

I. Czeguhn

It should be emphasised that the Audiencia was not derived directly from the alcaldes of 1247, nor from the alcaldes de alzadas but from the immediate position of the king. His position as the custodian of order in the empire and as guarantor of the law at the highest level of jurisdiction gave him his very own aura as the highest judge. Aside from the responsibilities that were explicitly bestowed upon him (e. g. judging treason), the King was ‘ultimo garante de la justicia al cual pueden recurrir todos aquellos que sufran mengua de derecho’, i. e. ‘the final custodian of justice, to whom everybody who has suffered from non-observance of the law can turn’.17 This ‘universal responsibility’ led to an increase in proceedings before the king. This was caused among other things by the various extrajudicial remedies that directly led to the king as the supreme judge.18 During the reign of Alfonso XI a new process was initiated against the backdrop of the interventionist policies of the king in the empire and the increasing recognition of the court as the leading political and legal institution of the empire. This is illustrated by the law of Alcala from 1348, on the basis of which certain powers were reserved for the king and his court and essential elements of the Castilian legal system were laid down. Following the strengthening of the king’s position through Alfonso’s policies, the estates repeatedly drafted submissions calling on the king to periodically hold public audiences. For a number of years now, the prevailing opinion amongst modern scholars has been that these Audiencias publicas can be viewed as the seed of the later Audiencia.19 It cannot be compared to the old tribunal de los alcaldes de corte.20 Rather, it is a newly developed and evolved organ. It supported the king in the fulfilment of his tasks, which he carried out in his own household. The growing absence of the king from the public hearings meant his advisors, soon called oidores 17  These are the words of Aquilino Iglesia Ferreiros, La creación del Derecho. Una historia del Derecho español, Lecciones, Fasciculo 2, Barcelona, 1988. 18  See also Carlos Garriga, Génesis y formación historica de las visitas a las Chancillerias castellanas, Chapter I, §§ 3–5. The author points to the Fuero Real of 1255 (especially the numbers 1.7.8 and 2.2.2), that established the querella as a legal means against injustice done by the alcaldes. See also Carlos Garriga, La Audiencia y las Chancillerías castellanas (1371–1525): Historia política, régimen jurídico y práctica institucional, Historia de la sociedad politica, Madrid, 1994. The thesis of Carlos Garrigas on visitations could not be accessed. 19  As opposed to the view of Gustavo Villapalos Salas, who sees its origin in the Episcopalis Audientia. The explanation by José Sanchez-Arcilla Bernal, La administración de justicia real en León y Castilla en la baja edad media (1252–1504), Madrid, 1980, pp. 402–407, seems accurate. He sees the Pope’s Audientia or Rota Romana as the origin of the Audiencia 20  This is the term used by Alfonso Garcia Gallo, Curso de Historia del Derecho Español. I: Introducción e historia de las bases de formación del Derecho, de las ­fuentes y del Derecha público. II: Historia del Derecho privado, penal y procesal, Madrid, 1946, referring to the alcaldes de alzadas.



The history of the supreme courts in the Iberian peninsula447

(from ‘oir’, to hear), increasingly made decisions without the king being present. In 1372 the Audiencia was officially established in the Cortes del Toro: We deem it good to establish the judiciary in Our house as follows: there shall be seven oidores in Our Audiencia, and they shall hold the Audiencia in Our palace when We are present, and when We are not present, but My wife, the queen, being present, they shall hold the Audiencia in Her palace; and when the queen is not present either, they shall hold the Audiencia in the house of Our chanceller mayor or in the church of the town, in which Our Chancilleria is located, where they shall decide most honourably. These oidores shall hear cases by means of petition, and not by means of notices, complaints or other documents, and they shall decide by summary procedure and without a court hearing; the verdicts and the letters that they shall deliver, they shall decide upon together or by majority (requiring a certain quorum), or at least two of them; the Audiencia shall convene three times a week, Monday, Wednesday and Friday. These seven oidores shall be the Bishop of Valencia, the Bishop of Salamanca, the eleyto of Orense,21 and Sancho Sanchez of Burgos and Diego de Corral from Valladolid and Johann Alfonso Doctor and Velasco Perez de Olmedo, because they are the ones who will exercise this office well and will duly report to Us. The seven oidores shall not be alcaldes at the same time, because in that way they will be best able to observe and perform their appointed office; they shall perform their appointment personally and are not permitted to employ others for themselves, and no appeal and no revision shall be allowed against the decisions or verdicts of these seven oidores.

From this point in time, the existence of the Audiencia was based on promulgated royal law. The responsibility of the Audiencia was explicitly defined: ruling on petitions according to summary procedure and without a court hearing. However, the Audiencia soon took to ruling on cases in a non-summary manner: one piece of evidence that the Audiencia decided not only on the basis of summary procedure is an argument brought forward by the representatives of the assembly of the estates at a gathering of the estates in 1438. They submitted that the Audiencia did not decide cases in a non-summary manner in practice. However, such a case of the Audiencia deciding in a non-summary manner is already known as early as 1373.22 Rather than intervening, the king allowed opposition to the views expressed in the assembly of the estates. This resulted in a strengthened Audiencia, which soon grew into its role as an appellate body. In a variety of ways it took on cases and ruled on them independently, due to its position as the royal tribunal. From 1390 onwards, the Audiencia replaced the alcalde de alzada which decided appeals against the decisions of the alcaldes de Corte, and thereby became the recognized court of appeals. This also increased its acceptance as a court of appeals for 21  Eleyto

means a designated, elected bishop. Czeguhn, Die kastilische Höchstgerichtsbarkeit, 1250–1520, Berlin, 2002, pp.  63 ff. 22  Ignacio

448

I. Czeguhn

cases from the individual territories.23 By 1432, it was only criminal appeals that were given to the alcaldes de Corte. Thus, from 1432, the Audiencia was constituted as the only appeals court for cases of civil law. But soon, it would compete with the Consejo Real. In the Cortes de Valladolid of 1385, the Consejo Real was established in a new form by an ordinance.24 It was composed of four prelates, four noblemen and four citizens. To begin with, the responsibilities of the Consejo Real were defined negatively, meaning that all matters reserved for the Audiencia were excluded. Despite of this, the Consejo Real acted in a judicial manner. From 1389, the Consejo Real took on cases that were brought forward to the Audiencia as appeals, claiming that royal revenues were endangered. Actually, the nobility wanted to instrumentalise the council for its own purposes. As early as 1347, four members of the nobility were part of the council. The estates played no role in it anymore. In the meeting of the estates of the same year, John I yielded to the estates’ pressure and redefined the responsibilities of the council and the Audiencia. The council was given the right of participation in the selection of the oidores of the Audiencia. Furthermore, the king called upon the advice of the council in decisions on appeals. Due to the broad responsibilities the council had been granted, it in turn became a danger to the king. At the meeting of the estates of 1390 new regulations were therefore introduced. The Audiencia was given authority over cases grado de revista. In such proceedings, the Audiencia reviewed a case for all possible mistakes. In this way, it was ‘rehabilitated’ as the supreme element of the king’s judiciary. As a further innovation, the legal remedy of ‘segunda suplicación’ before the king was approved, which was however tied to two strict conditions. The preceding suit had to be conducted by the oidores and the litigating party had to deposit 1,500 doblas. This led to the use of the ‘segunda suplicación’ only rarely, which due to the high sum involved could de facto only be invoked by the high nobility and magnates.25 Furthermore, the institution that decided in cases of the ‘segunda suplicación’ was the Consejo Real, the royal council, staffed with members of the nobility. The conflicts between the two institutions at the close of the fourteenth century document the struggle over jurisdiction in the late middle ages in Castile and illustrate the dispute between the high nobility and the cities over their representation in the royal institutions. Furthermore, it is reminiscent of the conflict of responsibilities between the Imperial Chamber Court and the Aulic Council in the Holy Roman Empire. 23  So from the old kingdoms now being part of the kingdom of Castile (Toledo, Murcia, Granada, Sevilla, Cordoba). 24  See also Antonio Sanchez Aranda, El recurso de segunda suplicación en el derecho castellano, Granada, 2007. 25  See also Sanchez Aranda, El recurso de segunda suplicación, pp. 183 ff.



The history of the supreme courts in the Iberian peninsula449

The regulations of the late fourteenth century, which were intended to secure the flawless operation of the Audiencia, did not lead to the envisioned success in the fifteenth century. The so-called ‘Crisis of the Late Middle Ages’ in Castile was based on the enforcement of and compliance with the law and not a new legislative agenda. The cities trusted in the institution of the Audiencia as the source of justice, whereas the nobility trusted in the Consejo Real, in which it was mainly represented. Complaints from the cities went unheard. The antagonism between the king and the Audiencia in 1406 even led to a temporary closure of the Audiencia. Henry IV’s indecisiveness and weakness led to a fierce civil war in Castile. During this period, different social classes were fighting for their economic interests, political influence and power in the empire. The nobility was divided and saw the cities as its most important rival; the king was in a weak position and alternately looked for support from the rival groups. It was only when the Catholic Monarchs acceded to the throne in the 1470s, that order was restored to the judiciary. The modern era of the Spanish state followed the reinvigoration of the monarchy. The dynastic merger of Castile and Aragón fostered an early collective national awareness. The consolidation of the nobility, which was achieved by excluding those noble families that appeared antagonistic towards the rulers, as well as the support the Catholic Monarchs received in the cities, provided the foundation for a re-orientation. Institutions of administration and the ­judiciary were reformed and improved, and a clear boundary was drawn to mark the responsibilities of the Consejo Real and the Audiencia. The appointment of new presidents and oidores, which in part had helped Ferdinand and Isabella gain access to the throne, were the first measures to be taken. During the last gathering of the estates in the reign of Isabella I in 1480, a fundamental reform of the judiciary was introduced.26 A permanent seat for the supreme court, the chairmanship by a president, and the determination of a fixed number of judges and a budget, were crucial steps. The ordinances of 1486 and 1489 definitively determined the organisational structure. They also introduced control-related offices concerned with oversight, such as that of the multador or the veedor. And, from 1492 onwards, visitations were held, designed to inform the monarchs about any malpractice at the supreme court. The territorial expansion of the Reconquista was followed by an institutional expansion with the establishment of the Chancilleria in Ciudad Real and the Audiencia of Galicia. The initial negative impact of these new bodies on the old Chancilleria of Valladolid, concerning personnel (e. g. the withdrawal of knowledgeable staff from the old Chancilleria) and funding, would soon be overcome.

26  Cortes

de los antiguos reinos de Léon y Castilla, Madrid, 1882.

450

I. Czeguhn

The death of Isabella in 1504 meant the loss of the dynasty’s driving force and Castile was sent into a new crisis, especially concerning the judiciary. After his return, Ferdinand allowed the nobility to re-acquire their old positions and privileges. This led to a renewed round of intrigue among the nobility on the one hand and between the nobility and the cities on the other. The Chancilleria fell into neglect and disarray; the highest courts of the empire generally fell into a desolate condition. After Ferdinand’s death, the cities, and also the council, demanded quick action and reforms from the new king Charles I (Charles V in Germany). However, at the beginning of his reign Charles was plagued by hesitation and even ruled the Spanish empire with the help of the Council of Flanders – without ever setting foot on the Iberian Peninsula. Therefore, in 1520, there was an uprising of the municipalities even before any attempts to introduce reforms had been made. Although the cities were not victorious, their ideals were: they were therefore partly included in Charles’ ensuing reform.27 3. The Consejo Real (Royal Council of Castile) in the sixteenth century The reforms introduced by the Catholic Kings on all administrative levels (local and territorial, central and judicial) were the basic foundations of the process of centralisation that the Habsburgs further developed into the polysynodial model in the 16th century. This polysynodial element of the new modern state, based on a system of councils, made it possible to implement the politics of integration in the various territories that formed the basis of the universal monarchy in Spain in the sixteenth century. The Royal Council of Castile was to be the model for the polysynodial element in the institutions of governance. The Habsburg monarchy did not hesitate for long before putting its full trust in the Royal Council. This led to the Royal Council being regarded as the ‘pillar of our kingdoms’ within the royal administration. This would eventually lead to the Royal Council of Castile gaining final instance jurisdiction and thereby becoming in 1543 the highest court in the Empire (Consejo Supremo), a circumstance that would be the source of further diminution of influence of other institutions, such as the Cortes or the Chancillerias. Therefore, it is not surprising that the royal Audiencias and Chancillerías of Castile lost considerable influence over the course of the sixteenth century. Charles V’s first visit to Castile in 1517 was short, barely four months of the two years the German Emperor and Spanish King would spend in Spain. 27  Carlos Garriga, La Audiencia y las Chancillerias Castellanas, 1371–1525, Madrid, 1994, pp. 420 ff.



The history of the supreme courts in the Iberian peninsula451

During his second visit in July 1522, it became apparent that the new ruler intended to reform the system of judicial institutions; already in that year he initiated a formal visitation to the Royal Council.28 Among the first measures implemented by Charles V in these reforms was the ban on members of the Royal Council holding other offices in other royal institutions. A further move was the removal of the president, archbishop Antonio de Rojas.29 With such actions, Charles clearly showed that he viewed himself as a monarch in the sense of an absolutist ruler. He pursued integrating policies, which he intended to implement with the Royal Council operating as a collegial body. This ultimately led to the Royal Council not being viewed as an autonomous body exercising the delegated authority of the king, but ‘as an institution that directly derived its judicial and administrative powers as well as it jurisdiction from the king’.30 As the council spoke, so spoke the king. However, Charles V’s approach was even more far-reaching. He improved the collegial system regarding governmental and judicial institutions. He determined a certain number of members, a quorum, to make a legally binding decision (this set a fixed number of five judges, so-called oidores, to make judicial rulings, requiring a majority of three) and he instituted a rule of substitution and reoccupation of posts of members of royal institutions and thereby tried to re-organize a more efficient royal apparatus.31 The duties of the Royal Council were also specified, and these significantly increased during the reign of Charles V through ordinances.32 As such, the Royal Council became more prominent not only as a judicial but also as an administrative institution. Over the course of the sixteenth century, it was handed important authority over control of public offices in Castile, a duty that turned the Royal Council into a judicial authority regarding the control of misconduct in office and malpractice in the administration.33 Some historians see the crown of Castile as the true ruler of the new Spanish empire and as the originator of the Atlantic expansion: if this is the case, the Royal Council is the best symbol of the increase of power in the new Spain of the sixteenth century, a circumstance that would occasionally turn it 28  CLC,

IV, pp. 347–348. De Dios, Fuentes para el estudio del consejo real de castilla, Salamanca, 1986, p. 26. 30  José Maria Puyol Montero, El Consejo Real de Castilla en el reinado de Fernando VII, vol. 1, Madrid, 1992, pp. 526–527. 31  Nueva Recopilación de Leyes de Castilla, Libro 4, Título 20, Leyes 11 y 12, coincide with Nueva Recopilación 4.20, Autos acordados 1 y 2. 32  Ordenanzas del Consejo Real, approved 12 July 1554, Valladolid, 1556. 33  Analysis of which responsibilities the Royal Council had regarding government and judicial institutions can be found in: Puyol Montero, El Consejo Real, vol. I, pp. 528 ff. 29  Salustiano

452

I. Czeguhn

into a threat to the Spanish monarchy itself. Saint-Simón reiterates that the Royal Council was a tribunal ‘that unified power, knowledge and the judiciary, an institution to which, in the final instance, all public or private disputes in the whole empire would be presented (…), everything that was of public nature came to it, and it ruled over every issue that was disputed’.34 Therefore, it was not surprising that the Royal Council and its members viewed themselves as such: an institution of government and the judiciary, which did not rule by the king’s deputisation, but stood next to the king as a royal institution in its own right. Especially important regarding the organization of the Royal Council were the Cortes of La Coruña in 1554 and the ordinances that were enacted on the 12 July 1554, following this assembly of the estates.35 As De Dios has noted, the meeting of the estates tried to regulate ‘every aspect of the life of the Royal Council (location, responsibilities, procedures, authorities, legal means etc.)’.36 The meticulous regulations proposed by the estates were not wholly accepted by Charles V. He rejected the division of the Council into chambers (salas).37 The estates’ proposal included the introduction of a chamber of 1500 pieces of gold (sala de mil quinientas doblas). This meant that 1500 gold pieces were payable to access the court, so that in consequence only rich noblemen could make use of it. Since the time of Peter I in the fourteenth century a method of appeal had been in place, which required the deposit of 1500 pieces of gold.38 The estates demanded a revision of this practice. This was in conjunction with the demand that the court’s responsibilities would be divided into different chambers that should be separated according to their authority in administrative or judicial affairs. This petition was first brought forward to the king in 1555 in a meeting of the estates of Valladolid, which attempted to persuade the king that a separation of the Royal Council into chambers had become necessary to distinguish the various administrative and judicial duties.39 However, Charles V repeatedly refused to implement such a separation by law. De Dios suspects that it was not the king, but the president and the members of the Royal Council who did not approve of the separation into chambers, because this would have led to the general necessity of reviewing the proposed cases to classify them into administrative and judicial categories and to then distribute them to the 34  See Memoires, Paris, 1891, p. 142. See also J. Fayard, Los miembros del Consejo de Castilla (1621–1746), Madrid, 1982, pp. 12–13. 35  I refer to the Valladolid 1556 version, as cited by De Dios, Fuentes, pp. 100 ff. 36  De Dios, Fuentes, p. XXXV. 37  See Cortes de Segovia de 1532, in CLC, IV, pet. 6, p. 529. 38  See Sanchez Aranda, El recurso de segunda suplicación, pp. 106, 294 ff. 39  CLC, V, pet. 16, pp. 643–645.



The history of the supreme courts in the Iberian peninsula453

required chambers.40 Without a clear distinction between the two, cases could be freely decided by the president and the royal councils. A separation into chambers would take place eventually, but only at the end of the sixteenth century, with a royal ordinance finally separating the Royal Council into chambers with duties for administrative and judicial issues respectively. Even though a separation of the Council into chambers was not implemented, Charles V managed to promote efficiency in the proceedings of the Royal Council over the course of the sixteenth century. This especially concerns the process of the 1500 pieces of gold. The proceedings that required such a deposit were known as Segunda Suplicación. And this underlines the importance of the procedure, due to the supplication being in effect directly made to the king. Due to the constantly growing influence of the Royal Council in judicial issues, these were also presented to the council for a ruling. This turned the Royal Council into the highest authority on judicial issues, deciding without the king specifically remitting the matter to the council. And so it is not surprising that Charles V tells his son and the future king Philip II in his testament: As far as I have been informed, a few Grandes and Cavalleros from my provinces and dominions have prevented some of my subjects from appealing to us and our Audiencia and Chancilleria, even though they are allowed to do so [i. e. appealing] according to the law of our realms; and should this continue in the future, it would cause great damage to the judiciary, the primacy of the crown and the highest jurisdiction and would infringe on our subjects’ rights.

He continues: Thus, if something as mentioned has occurred and not been prevented, then only because it was not reported to me … You shall not allow or permit it, and take great care when it comes to justice and truth … You shall avoid it and correct it, as it is appropriate. Thus I renounce, suspend and annul and declare unlawful and without any value any custom and habit that has so occurred … I do this out of free motivation and with royal, absolute power. They shall be penalized in the same way as those that usurp and seek to frustrate the royal judiciary.41

With this, Charles V clearly states his view of the crown as absolute ruler. As such, the Royal Council assisted him as the highest institution of the judiciary. Despite this advice from his father, Philip II’s policies regarding the Royal Council were to limit its authority as an institution exercising jurisdiction and to broaden its roles of an administrative nature.42 Over the course of his 40  De

Dios, Fuentes, p. XXXVI, no. 47. V.’s Will, facsímile edition, Colección Documenta, Madrid, 1982,

41  Charles

pp.  15 ff. 42  Richard L. Kagan, Pleitos y poder real. La Chancillería de Valladolid, 1500– 1700, in: Cuadernos de Investigación hístorica, 2, 1978, pp. 291–316, esp. 303 ff.

454

I. Czeguhn

reign, he emphasized that it was the duty of the Royal Council to ‘watch over the government’ and that judicial issues should ‘be an accessory duty of the Royal Council, but not its task at heart’. Philip II improved the system of polysynodial government. Duties of the Royal Council were transferred to other institutions that were also called royal councils. This particularly affected issues of administration – the responsibilities of the Royal Council as the highest institution of the judiciary were not affected. It was also Philip II who laid the foundations for an organic and functional division between councils, but these were only implemented by his son Philip III in 1608. However, as at the outset of his reign, Philip II intended to reorganize the judicial functions of the Royal Council. And so, in 1572, he wrote to the president of the Royal Council that he should conduct the duties of the government in his capacity as an administrative and executive official and that claims and judicial duties were only to be assigned to the Royal Council as a secondary theatre of operations not as its main purpose; and that it was his opinion that the Royal Council should be aware of its core duties, that is the duties of governance and administration; as far as lawsuits are concerned, these were things the council should be the least concerned about. And to me [the king] it seemed prudent to achieve a solution by which judicial affairs shall be transferred to another institution and I [the king] recommend to you that you view the governmental duties as those that are the Royal Council’s very own.43

It is clear that Philip II sought to position the Royal Council as an institution of government and administration and in doing so, he provided the foundation for the later division into various councils under his son, Philip III. Thus, in 1588, the Cámara de Castilla was founded, which was given judicial duties in 1598.44 For this, special royal ordinances were issued. It was also Philip II who complied with the estates’ demand for a distinct chamber for the lawsuits concerning the 1500 gold pieces and who created one.45 His father Charles V had, as mentioned, refused this. And if one takes a look at the protocols of the meetings of the estates between 1559 and 1572, it is evident that it was also the estates that urged the king to assign more governmental duties and fewer judicial duties to the Royal Council. However, importantly, the suits of 1500 gold pieces were mainly reserved for the 43  Advertencias que el Rey Felipe II hizo al Sr. Covarrubias quando le eligio por Presidente del Consejo, 1572, Biblioteca Nacional, Ms. 11261/6, pp. 4–5. 44  Ordenanzas de 1598, in De Dios, Fuentes, pp. 116–121; José Antonio Escudero López, El Consejo de Cámara de Castilla y la Reforma de 1588, in: Anuario de Historia del Derecho español, 67, 2, 1997, pp. 925–942; B. Benassar, La Monarquía española de los Austrias, Salamanca, 2006, p. 42. 45  CLC, 5, pet. 6, p. 811 and Actas de las Cortes de Castilla, publicadas por acuerdo del Congreso de los Diputados, a propuesta de su Comisión de Gobierno, Madrid, 1861, 1, Chap. 3, pp. 303–304.



The history of the supreme courts in the Iberian peninsula455

nobility in a special chamber of the Royal Council, which meant that the king was still the highest judge in the country and adjudicated together with the Royal Council in these matters. In practice however, as previously discussed, the Royal Council did not have permission to act as the king’s alter ego in these suits. The first evidence of a separate chamber of the Royal Council concerning matters of 1500 gold pieces can be found in 1573.46 Practically at the end of his reign, Philip II reiterated that reform of the Royal Council had been and still was his most important task. On 14 February 1598, the Royal Council was subject to further reforms by royal edict.47 However, these reforms could not be introduced in practice, as the Royal Council itself refused the implementation. If we scrutinize the preparations regarding this royal edict of 1598, it can be seen that the monarch intended to raise the number of Royal Councillors first to 17 and then to 21. At the same time, he had requested the president of the Royal Council to present ideas of reform from the Council. It was the king’s aim to relieve the Royal Council of an overburdening with judicial matters and to transform it into an institution whose role was limited to matters appropriate to a supreme judicature and an institution of governmental and administrative affairs.48 To achieve the former the king proposed to expand the Council, aside from the chamber of the 1500 gold pieces, by further chambers which should resolve cases faster. Then, the Council’s responsibility as an organ of the judiciary should be reduced to that of the kings very own duty of highest judge in the realm. Previously, and fearing the reaction of Rodrigo Vázquez de Arce, president of the Royal Council, Philip II had already given the instructions on the formation of the Chambers in 1597. In these, Vázquez de Arce was asked for his opinion about the reform after studying the project, requesting him to recommend any possible improvements to the division into Salas (different tribunals) to resolve and deal with the lawsuits more quickly. In the instructions, he was informed of the possible structuring of the Royal Council into four Chambers: one of Government and three of Justice – one for the 46  Actas

de las Cortes de Castilla, 4, pet. 66, pp. 465–466. this reform, see L. M. García-Badell Arias, Felipe V, la Nobleza Española y el Consejo de Castilla. La Explicación jurídica e histórica de la consulta que hizo el Real Consejo de Castilla, atribuida a Macanaz, in: Cuadernos de Investigación Histórica del Derecho, 12, 2005, p. 129, no. 8 and idem, La frustración de Felipe II: El fracaso de la reforma del Consejo Real de Castilla de 1598, in: J. Martínez Millán (ed.), Felipe II (1527–1598). Europa y la Monarquía Católica. Vol. I: El Gobierno de la Monarquía (Corte y Reinos), Madrid, 1998, pp. 307–339. 48  See No. 4.2.1, the later Novísima Recopilación 4.3.1, cited as Novísima Recopilación de las leyes de España, en que se reforma la Recopilación publicada por el Señor D. Felipe II, en el año de 1567, reimpresa últimamente en el de 1775, mandada formar por el Señor D. Carlos IV, impresa en Madrid, 1805. See also Antonio López Gómez, El Consejo Supremo, Madrid, 1967, pp. 40–41. 47  Concerning

456

I. Czeguhn

‘Thousand and Five Hundred pieces of gold’ and Two of Justice. However, the response of the president of the Royal Council was stark. He rejected any reform and deemed it unwise to fundamentally modify the royal ordinances and laws concerning the Royal Council. Furthermore he pointed out that the Royal Council had always dealt with judicial matters and had done so for centuries. No monarch had so far dared to cut the power of the Royal Council in such a far-reaching manner. However, the president’s doubts, even though they represented the view of the whole court, did not discourage the king in his plans to reform the Royal Council.49 The reform, made as an ‘edict that the Royal Council shall respect in all its proceedings of governmental, administrative and judicial nature’, dated 14 February 1598, stated that the Royal Council was an institution of a governmental and administrative nature. The Royal Council should not exercise influence in judicial affairs and proceedings or even intervene in such matters, but only the chamber of the 1500 gold coins, staffed with five Royal Councillors, and two further chambers for judicial affairs with each of these staffed with three Royal Councillors. The fourth chamber, the chamber of administration and government, was designed for five Royal Councillors, though with an inadequate definition of duties and areas of responsibility. The reform was also accompanied by a report of the new order of 17 February 1598, which explained the way of proceeding in the Royal Council, aspects of recusal and the distribution of councillors between the Chambers. In a memorial setting out the reorganization of the chambers of the Royal Council on 17 February 1598, the forms of procedure, distribution of governmental and administrative affairs as well as the judicial affairs were defined.50 But the reform was not enacted immediately, due to the monarch’s deteriorating health with regular attacks of fever and, finally, his death in September 1598, which led to the president and the Royal Council not implementing the reforms. His son Philip III, who ascended the throne on 13 September 1598, first decreed the temporary suspension of the reform. This was not done to absolutely terminate it and so never implement it, but rather to first consolidate the new king’s power and to gain an overview of which Royal Council49  For the reign of Phillip II, see Jose Antonio Escudero López, Felipe II: el rey en el despacho, Madrid, 2002; idem, Felipe II y el Gobierno de la Monarquía, in: Ma. M. Sánchez Gonzaléz (ed.), Corte y Monarquía en España, Universidad Nacional de Educación a Distancia, Madrid, 2003, pp. 24–26. 50  See De Dios, Fuentes, pp. 122–127 and XLV. See also Antonio Martínez Salazar, Coleccion de memorias, y noticias del gobierno general, y politico del Consejo, Madrid, 1764, pp. 146 ff and F. A. Elizondo y Alvarez, Práctica universal forense de los tribunales de la corte, reales Chancillerías de Valladolid, y Audiencia de Sevilla. Su origen, jurisdicción y negocios, vol. I, Madrid, 1794, p. 168.



The history of the supreme courts in the Iberian peninsula457

lors were supportive of the reform and those who were not. And so, on 30 January 1608, ten years after Philip II’s first attempt to push the reform through the Royal Council, a new ordinance was introduced that finally implemented the reform and heralded a new era in the Royal Council in the seventeenth century. We can see nuances in the 1608 reform, however, that were not present in that of 1598. In particular, the ban on influencing and intervening in other proceedings is not included. Maybe this circumstance was due to a concession by the monarch to the council. However, there remained in the 1608 measures a strict separation between governmental and administrative affairs and judicial affairs. Royal Councillors who had been specifically educated and instituted as Royal Councillors were not supposed to assume both sets of duties at the same time or successively. So in future, there were either councillors for administrative or governmental affairs, or judicial councillors. In addition, importantly, with this reform the Royal Council became the ‘centre of administration’ in the state of the Spanish universal monarchy.51 This new form of the Royal Council would however be reorganized again in terms of structure and composition with the ascension to the Spanish throne of the Bourbons in the 18th century. 4. The reforms of the Bourbons: Impulse for the unification of the judiciary The eighteenth century was the ‘opening to a new order of ideas and new techniques in administration and government’.52 Philip V introduced a number of reforms which manifested the monarch’s powerful position in relation to the nobility and partly ensured that it was excluded from deciding important political questions in the future. It was no easy endeavour to reform the Royal Council, which was dominated by the high aristocracy. The original division, introduced by Philip II, into administrative and governmental functions as well as those of the judiciary, was left untouched in the seventeenth century and was consolidated. Every council had a judicial branch which, organised into chambers, dealt with the administration and judicial business. A reform of the central administration was understood as necessary and justified but was inadequate for the royal government, being in need of better coordination and not simply a mere functional distribution. Hence, in the eighteenth century the crisis of the regime of Councils took place. Problems occurred more and more over the course of the seventeenth century which concerned the allocation of cases and corruption in the individual 51  G. Desdevises Du Dezert, L’Espagne de l’Ancien Régime. Les Institutions, Société Française d’Imprimerie et de Librairie, Paris, 1889, p. 60. 52  B. Gonzalez Alonso, El corregidor castellano, 1348–1808, Madrid, 1970, p. 245.

458

I. Czeguhn

chambers. This led to the so-called crisis of the Systems of Councils. The Decreto de Nueve Plantas of 1707 for the councils in Castile for the first time conveys the idea of an organised state apparatus, and a Spanish nation is also mentioned for the first time. In the decree, this Spanish nation is presented with a system of government and administration which is uniformly organised. The main measure of reform was the introduction of state secretaries. A state secretary with an overall responsibility was installed, the socalled Secretaria de Despacho Universal. Here, the influence of the French model imposed by the Bourbons of France on the state structure of Spain is evident. Under Louis XIV there was a powerful council which was responsible for finances, war and politics without any institutional restrictions. With the introduction of the French system by the Bourbons the transition from the polysynodial model of Castile to the unipersonal model of future Spain was finally established. In the decree of the year 1713 the ultimate responsibility of the Royal Council for the judiciary was cemented, but at the expense of its authority in the areas of government and administration. This meant that from this point in time onwards the Royal Council was a purely judicial organ, while the tasks of government and administration were taken over by the state secretaries. The originally omnipotent state secretariat was divided into two offices in 1705: one for finances and war and one state secretary for all other matters. The latter would be responsible for state affairs, organisation of the judiciary and church affairs. Only 11 years later, in 1714, new state secretaries were installed. We now find a state secretary for state affairs, one for war, one for the navy and the colonies, one for the judiciary and one for finances. It should not be disregarded that, by this decree of the Nueva Planta, Aragon and Valencia especially, but also Catalonia were integrated into to the Castilian system. This meant that Philipp V imposed the Castilian judicial and administrative organisation onto these areas. The old Fueros, applicable in these regions partly from the Middle Ages, were made void and royal control was ensured by the so-called Capitanes Generales. These Capitanes Generales were at the same time the presidents of the Audiencias and therefore the presidents of the highest courts in these regions. It should also be noted that the new institutions of administration and government were headed by those who had previously held office in Castile. The official language was Castilian. The irony of history lies in the fact that the preparation of Spanish unification and a future Spanish nation followed a French blueprint, undertaken in the eighteenth century by the Bourbons. The initially polysynodal system of royal councils, which had administrative as well as governmental duties, were from this point onwards superseded by state secretaries, which were instituted following the French model first in Castile and then in the other regions. After Philip V’s victory in gaining the succession following the



The history of the supreme courts in the Iberian peninsula459

death of Charles II in 1700, Aragon, Valencia and Catalonia were subjected to the Castilian model and so became subject to a uniform system of administration, government and judiciary. The reforms at the beginning of the eighteenth century therefore set an enduring course for how the modern Spanish state was organised. Bibliography Algora, H. J. I./Arranz Sacristán, F., Fuero de Calatayud, Zaragoza, 1982. Bennassar, B., La Monarquía española de los Austrias, Salamanca, 2006. Cavarte, P., Fueros y Observancias del Reyno de Aragón. Edición al cuidado y con glosa del doctor Miguel Pastor, Zaragoza,1624. Coci, J., Opus universorum fororum [intitulación tomada del colofón]. Edición al cuidado de Miguel del Molino, Zaragoza, 1517. Czeguhn, I., Die kastilische Höchstgerichtsbarkeit, 1250–1520, Berlin, 2002. Delgado Echeverría, J., Los Fueros de Aragón, Segunda Muestra de Documentación Histórica Aragonesa, Zaragoza, 1997. Delgado Echeverría, M., Observancias y Actos de Corte del Reino de Aragón. Estudio preliminar, traducciones, textos complementarios e índices, Zaragoza, 1991. Desdevises Du Dezert, G., L’Espagne de l’Ancien Régime. Les Institutions, Paris, 1889. Elizondo y Alvarez, F. A., Práctica universal forense de los tribunales de la corte, reales Chancillerías de Valladolid, y Audiencia de Sevilla. Su origen, jurisdicción y negocios, Madrid, 1794. Escudero López, J. A., ‘El Consejo de Cámara de Castilla y la Reforma de 1588’, Anuario de historia del derecho español (AHDE), Vol. 67(2), 1997, 925–942. Escudero López, J. A., Felipe II: el rey en el despacho, Madrid, 2002. Escudero López, J. A., ‘Felipe II y el Gobierno de la Monarquía’, in: del Mar Sánchez González, D. (ed.), Corte y monarquía en España, Madrid, 2003, 17–28. Fayard, J., Los miembros del Consejo de Castilla (1621–1746), Madrid, 1982. García-Badell Arias, L. M., ‘La frustración de Felipe II: El fracaso de la reforma del Consejo Real de Castilla de 1598’, in: Martínez Millán, J. (ed.), Felipe II (1527– 1598). Europa y la Monarquía Católica. Vol. I: El Gobierno de la Monarquía (Corte y Reinos), Madrid, 1998, 307–339. García-Badell Arias, L. M., ‘Felipe V, la Nobleza Española y el Consejo de Castilla. La Explicación jurídica e histórica de la consulta que hizo el Real Consejo de Castilla, atribuida a Macanaz’, Cuadernos de Historia del Derecho, Vol. 12, 2005, 125–129. Garriga Acosta, C. A., Génesis y formación historica de las visitas a las Chancillerias castellanas (1484–1554), PhD thesis, University of Salamanca, 1990.

460

I. Czeguhn

Garriga Acosta, C. A., La Audiencia y las Chancillerias Castellanas, 1371–1525, Madrid, 1994. Giménez Soler, A., ‘El Justicia Mayor de Aragón es de origen musulmán’, Revista de Archivos, Bibliotecas y Museos, Vol. 5, 1901, 201–206. Gonzalez Alonso, B., El corregidor castellano, 1348–1808, Madrid, 1970. Gonzáles Antón, L., Las Uniones aragonesas y las Cortes del Reino (1283–1301), Zaragoza, 1975. Gonzalez Antón, L., Las cortes en la España del Antiguo Régimen, Madrid, 1989. Hurus, P., Fori Regni Aragonum, Zaragoza, 1496. Hurus, P./Botel, H., Fori Regni Aragonum. Edición al cuidado de Gundisalvo García de Sancta María, Zaragoza, 1477. Iglesia Ferreiros, A., ‘La labor legislativa de Alfonso X. el Sabio’, in: España y Europa, un pasado juridico comun. Actas del I. Simposio internacional del Instituto de Derecho comun, Murcia, 1986, 275–599. Iglesia Ferreiros, A., La creación del Derecho. Una historia del Derecho español. Lecciones, Fasciculo 2, Barcelona, 1988. Kagan, R. L., ‘Pleitos y poder real. La Chancillería de Valladolid, 1500–1700’, Cuadernos de Investigación Histórica. Seminario Cisneros, Vol. 2, 1978, 291–316. Lalinde Abadía, L., ‘Virreyes y Lugartenientes Generales en la Corona de Aragón’, Cuadernos de Historia de España, Vols. 31–32, 1960, 98–172. Lalinde Abadía, J., ‘El pactismo en los reinos de Aragón y Valencia’, in: Legaz Lacambra, Luis (ed.), El pactismo en la Historia de España, Madrid, 1980, 113–139. López de Haro, C., La Constitución y libertades de Aragón y el Justicia Mayor, Madrid, 1926. Martel, J., Forma de celebrar cortes en Aragón, Zaragoza, 1641. Martínez Sampedro, M., ‘Los Justicias de Aragón bajo el reinado de Jaime I’, Li­ garzas, Vol. III, 1971, 85–96. Martón y Gavín, J./Santapau y Cardos, F., Derecho y jurisprudencia de Aragon en sus relaciones con la legislacion de Castilla por dos Abogados del ilustre Colegio de Zaragoza, Zaragoza, 1865. Mayer, E., Historia de las Instituciones sociales y politicas de España y Portugal durante los siglos V. al XIV., Madrid, 1926. Morales Arrizabalaga, J., ‘La foralidad aragonesa como modelo político: su formación y consolidación hasta las crisis forales del siglo XVI’, Cuadernos de estudios borjanos, Vols. 27–28, 1992, 99–175. Pérez-Bustamante, R., ‘El gobierno y la administración de los territorios de la Corona de Aragón bajo Jaime I el Conquistador y su comparación con el régimen de Castilla y Navarra’, in: X Congreso de historia de la Corona de Aragón, Zaragoza, 1979, 515–536. Ribera, J., Orígenes del Justicia mayor de Aragón, Zaragoza, 1897.



The history of the supreme courts in the Iberian peninsula461

Romero, A., Historia y vicisitudes de la magistratura conocida con el nombre de Justicia de Aragón, Madrid, 1881. Sanchez Aranda, A., El recurso de segunda suplicación en el derecho castellano, PhD thesis, University of Granada, 2007. Sanchez Aranda, A., El derecho y las instituciones superiores de justicia de Aragón desde la baja edad media hasta el siglo XVIII (1247–1711). El Justicia mayor de Aragón, la Audiencia y el Consejo Real, Granada, 2008. Sanchez-Arcilla Bernal, J., La administración de justicia real en León y Castilla en la baja edad media (1252–1504), Madrid, 1980. Sánchez Gonzaléz, Ma. M. (ed.), Corte y Monarquía en España, Madrid, 2003. Savall y Dronda, Pascual/Penén y Debesa, Santiago, Fueros, Observancias y Actos de Corte del Reyno de Aragón. Edición facsimilar, Zaragoza, 1991 Sesma Muñoz, J. A., ‘Las Generalidades del reino de Aragón. Su organización a mediados del siglo XV’, Anuario de Historia del Derecho Español, Vol. 46, 1976, 393–468. Sevillano Colom, F., ‘Apuntes para el estudio de la cancillería de Pedro IV el Ceremonioso’, Anuario de Historia del Derecho Español, Vol. 20, 1950, 137–241. Wohlhaupter, E., ‘Die Entfaltung des aragonesischen Landrechts bis zum “Código de Huesca” (1247)’, in: Studi in onore di Carlo Calisse, Milan, 1939, 379–410.

L. LÓPEZ VALENCIA

The Royal and Supreme Council of the Indies: the Supreme Court of New Spain 1. Introduction: Spanish polysynody Historiographical studies coincide, in general, in affirming that the organization of the Spanish Monarchy during the ancien régime was founded upon two systems. The first, under the Habsburgs, was a polysynodial regime structured through collegial organs called Royal Councils (Consejos) that acted in conjunction with a complementary network of Boards (Juntas). During the subsequent Bourbon dynasty in the eighteenth century, the monarchy was re-organized as a ministerial system composed of a series of Secretariats of State or Ministries (Secretarías del Despacho or Ministerios), each led by a secretary or minister.1 It appears that the emergence of these officials reduced the powers and importance of the councils. Although this classification is the one most often cited in historiography, it must be examined with caution, as Alfonso García Gallo has warned: A simplistic, generalized vision of central Spanish Administration in the Modern Age distinguishes and counterposes the system under the Habsburgs, in which councils operated collegially, and that of the Bourbon period, when administration was performed personally by Secretaries of State and the Universal Office (Despacho Universal). While this distinction is generally acceptable, the characterization of the dominant system in the 16th and 17th centuries must be nuanced by specifying the concrete functions of its councils and [those] that corresponded to the secretaries [which are] almost always ignored or underestimated.2

Rafael D. García Pérez’ study reveals the need to refine our understanding of the displacement of polysynody upon the appearance of the secretariats in the 18th century. His research on the Council of the Indies demonstrates that certain hypotheses are no longer tenable; for example, Gildas Bernard’s view that the council system declined gradually as the Bourbons implemented the 1  José Antonio Escudero, El Gobierno Central de las Indias: El Consejo y la Secretaría del Despacho, in: Feliciano Barrios Pintado (ed.), El gobierno de un mundo. Virreinatos y Audiencias en la América Hispánica, Cuenca, 2004, pp. 95–118 at 95. 2  Alfonso García-Gallo, El Consejo y los Secretarios en el gobierno de Indias en los siglos XVI y XVII, in: Revista Chilena de Historia del Derecho, 11, 1985, pp. 329–353 at 329.

464

L. López Valencia

Secretariats of State and the Universal Office. Pérez presents evidence that during the reigns of Charles III and IV, the Council of the Indies did not lose the influence it wielded in the 16th and 17th centuries, but that the opposite occurred: conditions permitted that this body, despite losing administrative functions, began to earn ‘prestige, moral authority and influence, manifested in significant institutional development that allowed it to conserve a broad range of competences’.3 Without question, the principal feature of the absolutist Spanish State, especially under the Habsburgs, was polysynody, a form of government instituted in response to the needs of an emerging state that concentrated unprecedented wealth and power in medieval times. This situation impacted on other western powers so forcefully that it shaped the formation of all western states.4 The nascent Spanish State was organized through the creation of a centralized, hierarchical bureaucracy consisting of a network of officials that, theoretically, formed a system of collegial organs called Royal Councils; although in reality, those councils were plagued by a lack of coordination.5 While we can affirm that the origins of the council system developed in the fifteenth century under the Catholic Kings, the polysynodial regime effectively implemented by Emperor Charles V had marked differences, especially by virtue of the express obligation that he acquired through the Wahlkapitulationen (agreements between emperor and imperial electors) in the case of the German Reich, which stipulated that the political orders of all the constituent parts of his Empire had to be respected.6 The emperor required a formula that would allow him to govern his immense dominions, characterized by great sociocultural, political and juridical heterogeneity, during a particularly conflicted period that continually challenged his government’s stability through military confrontations, like the revolt of the Comuneros of 1520–21 and the revolt of the Germanías of 1519–21, not to mention the many wars waged both inside Europe and beyond its borders. Stability was further weakened by the itinerant nature of Charles V’s rule. These circumstances together demanded a bureaucracy that could centralize the exercise of power; one that would hold the highest judicial, administrative and legis3  Pilar Latasa, review of: Rafael D. García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, in: Revista de Indias, 220, 2000, pp. 767–769. 4  Perry Anderson, Lineages of the Absolutist State, London, 1979, p. 60. 5  The councils constantly suffered a lack of coordination; see Feliciano Barrios, Consolidación de la Polisinodia hispánica y administración indiana, in: Feliciano Barrios (ed.), El gobierno de un mundo. Virreinatos y Audiencias en la América Hispánica, Cuenca, 2004, pp. 119–134 at 131–132. 6  Pablo Fernández Albaladejo, Fragmentos de Monarquía. Trabajos de historia política, Madrid, 1992, pp. 88–89.



The Royal and Supreme Council of the Indies465

lative attributes, while simultaneously recognizing the diversity of the peoples living in the Empire’s vast territories, facilitating the resolution of their many problems, and respecting their traditional jurisdictions. The basis of this centralized bureaucratic organization was Spanish polysynody, as mentioned above, which operated in coordination with the juntas and, in the 17th century, had to function alongside the powerful influence of the validos (king’s favorites).7 The title ‘council’ given to the collegial organs that were the pillars of Spain’s polysynodial regime can give rise to confusion since it might suggest that those bodies performed only consultative or advisory functions for the monarchy. The reality, however, is that they enjoyed far broader competences. Certainly, as advisory bodies the giving of counsel can be considered the defining element of polysynody; the ineluctable mechanism of royal decision-making, a process that began with a mandate to a council from the monarch.8 But the councils’ competences included not only important advisory powers, but also supreme legislative, judicial and administrative functions. Indeed, they acted as a kind of sui generis form of legislature, for the rulings and edicts they promulgated within their jurisdictions were of general application. Also, they functioned as ministries of an administrative nature whose principal activity was to act as intermediaries between the monarch and regional and local public administrations. However, judicial functions were their most important feature, since in their jurisdictions they constituted the highest tribunals that issued final judgments which concluded litigation in civil and criminal matters, and even on appeal against judgments issued by ecclesiastical judges (recursos de fuerza). Thus, these collegial organs became the apex of the Empire’s bureaucratic hierarchy. They were led by trained jurists (called togados), but their members included councillors from the nobility who had no formal legal education (called de capa y espada).9 It is important to clarify that although the councils constituted the highest sphere of the monarchy’s bureaucracy, this does not mean that under the 7  Juan Carlos Domínguez Nafría, Carlos V y los orígenes de la Polisinodia hispánica, in: Ernest Belenguer Cebrià (ed.), De la unión de coronas al Imperio de Carlos V, vol. 1, Barcelona, 2001, pp. 497–531 at 499–501. 8  The vehicle of this royal mandate could be a royal decree when the monarch directed it to a specific council, but when generic in nature they were announced through ordenanzas or general instructions for the council concerned, or documents that concretely attributed competences of a general, permanent character: Barrios, Consolidación de la Polisinodia hispánica y la administración indiana, p. 133. 9  José Miranda, Las ideas y las Instituciones políticas mexicanas. Vol. 1: 1521– 1820, México City, 1978, pp. 96–97.

466

L. López Valencia

Habsburgs a ‘synarchy’ (sinodiarquía)10 – in the sense in which José María Cordero uses the term – was created, since this would be tantamount to a diarchy,11 as Tomás y Valiente has indicated, in which the monarch shared sovereignty with the councils. Certainly, the royal councils’ identification with the person of the king was recognized in theory and had repercussions in practice, as Lorenzo Mateu y Sanz’ Tractatus de re criminali (1676) shows,12 by stating that the Royal Council is the living law, voice and oracle of the Prince, since all that he decrees acquires the force of law.13 In reality, however, this identification of monarch and council was only symbolic or metaphorical, because in jurisprudence it was an error to consider councils co-participants of sovereignty. Although on one occasion the Council of Castile sought to achieve this status, sovereignty was never conceived to be shared with any of the king’s councils.14 The Royal Council of Castile had served as the monarch’s consultative body since the Middle Ages. The objective was to prevent the exercise of royal power from becoming tyrannical, as the Código alfonsí (the Siete Partidas) stated.15 This body can be thought of as the antecedent of the councils 10  José María Cordero Torres, El Consejo de Estado, su trayectoria y perspectivas en España, Madrid, 1944, p. 37. 11  Francisco Tomás y Valiente, El gobierno de la Monarquía y la administración de los reinos de España del siglo XVII, in: Francisco Tomás y Valiente, Obras completas, vol. 5, Madrid, 1997, pp. 3683–3874 at 3805–3806. 12  Lorenzo Mateu y Sanz, Tractatus de re criminali siue controuersiarum vsufrequentium in causis criminalibus: cum earum decisionibus, tam in aula Suprema ac hispana criminum, quam in summo Senatu novi orbis, Lyon, 1676, no. 23, controversy XXV. 13  ‘… in atrocioribus criminibus judicatium, sic practicari testatur, & quod magis est sic per supremum nostrum Consilium approbari, quod quidem Consilium, cum sit viva lex, atque ipsius Principis vox, & oraculum ea praeminentia utitur, ut quod decreverit legis firmitatem obtineat …’: Mateu y Sanz, Tractatus de re criminali, p. 177. 14  Tomás y Valiente explains an episode in 1708 when the Council of Castile banished some Augustinian friars without royal consent. Philip V inquired how it had proceeded and on what basis it had expelled those subjects from the kingdom. The council replied that it had acted on the authority granted by its predecessors. The monarch then asked about the year and kingdom where that authority had been granted. This event led Melchor de Macanaz to write his famous ‘Explicación jurídica’. Cf. Tomás y Valiente, El gobierno de la Monarquía y la administración de los reinos de España del siglo XVII, p. 3805, no. 464. 15  Cf. Ley I, Título I, Segunda Partida: ‘It is convenient for many reasons that one man be emperor and that this power exists on earth. One, to eliminate disagreement among peoples, and unite them as one; which could not be done if there were many emperors, because according to nature, the lord desires not a companion, does not need one; [but] at the same time it is convenient that there be good and wise men who counsel and help him’: Las Siete Partidas del muy noble Rey Don Alfonso el Sabio, Glosadas por el Lic. Gregorio López, Book I, Madrid, 1843, 2a Partida, pp. 369–370 (emphasis added).



The Royal and Supreme Council of the Indies467

of modern Spain that formed the foundations of the Catholic monarchy’s institutional system. Muro Orejón writes that the Royal Council of Castile16 was instituted by King Henry II Trastámara on the request of the Cortes17 meeting in Burgos in 1367, recommending the creation of an advisory body. The monarch acceded and named twelve ‘good men’, two from each kingdom of the Castilian-Leonese monarchy; i. e., ‘Castile, León, Toledo, Galicia, Extremadura and Andalucía’. But this geopolitical criterion was replaced, in 1385, by one of a social nature, with four members representing the Church, four the nobility, and four the cities with the right to vote at the Court.18 Salustiano de Dios maintains that this council was founded in 1385, in response to the conditions created by the feudal reaction of 1367–1369 that

16  Various points of view exist regarding the origin of the Consejo Real en España. According to Mariana Moranchel, one view traces its origins back to Visigothic Spain, while a second attributes its founding to Ferdinand III. Castillo de Bobadilla finds the origin in the Adelantado mayor, but other authors fix on a date of 1385 with the issue of the ordenanzas of John I. Cf. Mariana Moranchel Pocaterra, El Consejo de Indias y su relación con la vía reservada en el reinado de Felipe V, PhD thesis, Universidad Complutense de Madrid, Madrid, 2012, pp. 41–42. 17  The Cortes were ‘legislative bodies composed of the representatives of the nation. In former times, the kingdom’s three estates – ecclesiastical, nobility, commoners – were based in Castile and convoked by the king to discuss and resolve pressing issues, review old laws or establish new ones, impose taxes, declare war, or ratify peace treaties, among other matters. The General Congress of the Principado was held in Catalonia. The king personally convoked and presided over this body, which had a similar composition; in this case, clergy, nobility and the procurators of cities and towns, though the clergy’s presence was not deemed indispensable. The Cortes in Navarra included the three estates of that kingdom – ecclesiastical, nobility and military – as well as a series of republics or universities, each with different representatives. The most celebrated was the one in Aragón, which consisted of four estates: the high nobility (the wealthiest men), the lower nobility (gentlemen or the so-called infanzones), representatives (diputados) of the cities and towns, and representatives of the clergy. The ratification of resolutions in these Cortes required the unanimous consent of their members, so one sole opposing vote sufficed to impede decision-making. Authorization by these organs was absolutely necessary to impose taxes, declare war, make peace, and coin or modify the currency. They also reserved the right to supervise all branches of public administration, remedy abuses, and even depose the king if he broke his vow to maintain the nation’s freedoms. The Grand Judge (Gran Justicia) who presided over the Cortes was seated on a throne surrounded by the representatives of the higher and lower nobility, the clergy and the commoners. He swore the king into office during the Act of Coronation, placing a drawn sword over his heart and pronouncing these memorable words: ‘Each one of us is the same as you, and all together we are more than you, we name you king provided you protect our freedoms and privileges; but if not …’: Joaquín Escriche, Diccionario razonado de legislación y jurisprudencia, Paris, 1863, p. 519. 18  Antonio Muro Orejón, Lecciones de historia del derecho hispano-indiano, Mexico City, 1989, p. 149.

468

L. López Valencia

resulted in the triumph of Henry II of Trastámara.19 While it is true that its primary function was to advise the monarch, it gradually acquired judicial functions until it came to be considered the king’s alter ego in the administration of justice. Thus, by the mid-sixteenth century, the Council of Castile was the supreme body for administering justice, as the Ordenanzas of 1459 make clear.20 We must remember that the administration of justice was the king’s principal responsibility, as reflected in the Siete Partidas, which establish that kings in their kingdoms, and the emperor in his empire, are vicars of God and ‘… the saints said that the king is placed on earth in God’s place, to ensure that justice is done and that each one receives his due’.21 The Royal and Supreme Council of Castile, deemed by Charles V to be the backbone of the Catholic monarchy, was referred to by monarchs as simply ‘our Council’. Since the Crown of Castile held a preponderant place alongside that of Aragon in the Catholic monarchy, its council was considered ‘the first among peers’. This was manifested in its latent pretension to participate in the absolute power of the monarch. In fact, in dispatches it was referred to by the term ‘highness’, while in consultations and minutes the term ‘majesty’ was used, as if they spoke of the king himself. The Council of Castile’s pre-eminence was challenged only by the Council of State, which in the 17th century was recognized as the ‘Supreme Council of all Councils’ due to the scope of matters it dealt with and, significantly, because the king was its president. The Council of Castile conserved its power thanks, in part, to its antiquity (an important criterion at the time), but also because other important councils like those of the Indies, the treasury, the military orders and the crusades, were seen as offshoots of it.22 But it would be wrong to 19  Salustiano de Dios, Ordenanzas del Consejo Real de Castilla (1385–1490), in: Historia. Instituciones. Documentos, 7, Sevilla, 1980, pp. 269–320 at 269. 20  ‘The council always acted in the king’s name, representing him. The ordenanzas of 1459 alluded to its activity as the highest organ of the administration of justice. Its judgments and decisions were not subject to appeal, but to revision by that same body. … Later, the Courts of Toledo of 1480 declared that its judgments were not subject to appeal, objections, nullities, alzada (recusal of a judge), or any other means; but could be litigated before the council, and revision was allowed in civil matters involving large amounts of money if a bond of one thousand five hundred doblas was deposited. In judicial matters in the domain of the Crown of Castile, it was the supreme organ of justice for all tribunals incorporated in the ordinary royal jurisdiction. The use of the other jurisdictions depended on it and it governed them. It could advocate causes in which other tribunals were involved, inhibit them, or [act] as it deemed convenient. The council’s jurisdiction emanated and derived from the king’: José Luis de las Heras Santos, La justicia penal de los Austrias en la Corona de Castilla, Salamanca, 1991, p. 87. 21  Siete Partidas, Ley V, Título I, Segunda Partida, pp. 374–375. 22  Tomás y Valiente, El gobierno de la Monarquía y la administración de los reinos de España del siglo XVII, pp. 3807–3811.



The Royal and Supreme Council of the Indies469

think that these councils’ broad powers implied co-sovereignty, for this polysynodial regime emerged in an absolute monarchy. Melchor de Macanaz (1670–1760) observed: … [the councils’ jurisdiction] is thin; their power to advise, not execute. If King and Council had equal ordinary jurisdiction, and thus equal power, H[is] M[ajesty] would not be the head or, better, the soul, of the mystical body of the monarchy [which] would be a body with two heads [and] horribly deformed … Spain’s dominions would have an English-style Parliament that would curtail royal authority … The jurisdiction that all councils – Castile, Italy, the Indies, the Orders, and the Treasury – exercise is thin; and however much the kings may have wished to aggrandize Castile, they never thought of it as anything more than a tribunal whose members were charged with administering justice … otherwise, the king would be working against his own interests … breaking and disdaining the fundamental laws of these kingdoms, which attributed all power to one person … nor can we ignore the expression that without the king, the council is nothing … that it is a body animated only by his royal will, that without it H. M. could justly govern his peoples, transferring its commission to other ministers … [He] can shut it down, annul and dismantle it by his sovereign will [and] with no affront to his subjects, erase its name and entrust its duties to whomever he wishes under any other title; since it was founded only through royal will, that same will can abolish it.23

In summary, the councils were ‘royal’ and ‘supreme’ because their acts were performed in the king’s name; hence, they had no higher authority than the person of the monarch, who represented the ‘element that truly closed the system’.24 The councils’ ample powers in their areas of competence might extend to the ‘four branches, businesses or things that constituted the objects of public administration at the time: government, justice, the treasury and war’.25 In the case of the Council of the Indies, this included both temporal and spiritual powers, since its principal mission was spiritual in nature: to convert the Indians to the Catholic faith.26 Hence, it held jurisdiction over 23  Melchor de Macanaz, Explicación jurídica e histórica de la consulta que hizo el Real Consejo de Castilla al rey N. S., in: Seminario erudito que comprehende varias obras inéditas, críticas, morales, instructivas, políticas, históricas, satíricas y jocosas de nuestros mejores autores y modernos, vol. 9, Madrid, 1788, pp. 47–48. 24  ‘[As] the source of the jurisdiction attributed to the councils, the monarch has the means to influence their decisions, resolve jurisdictional competences that may arise and, always, the possibility to advocate in causes whose relevance recommends proceeding with extreme caution. Undoubtedly, this requires the presence of a monarch with the will to intervene directly and regularly in the system … There were also, within this dynamic, the presence of council members of various councils simultaneously, which increased the possibilities of controlling the system and its operationality’: Fernández Albaladejo, Fragmentos de Monarquía, p. 99. 25  García Gallo, El Consejo y los Secretarios de Estado en el gobierno de las Indias en los siglos XVI y XVII, p. 332. 26  Rafael D. García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, Pamplona, 1998, p. 18.

470

L. López Valencia

everything related to royal patronage in the Spanish American possessions: the Indies (Regio Patronato Indiano).27 The polysynodial system had two types of councils. One included organs with competences defined strictly by territorial criteria; namely, those of Castile, Aragon, Navarre, Italy, Flanders, Portugal and the Indies; the second included the councils whose functions were delimited by the matters they heard and processed. Among these bodies, which have been called ‘extraterritorial’, ‘thematic’ or ‘sectorial’, we find the Councils of State, Chamber, War, the Treasury, the Crusades, the Orders of Knighthood, and the Inquisition. All councils had their seats wherever the royal court was situated, except for that of Navarre, which was in Pamplona.28 2. The Royal and Supreme Council of the Indies The question of the exact date of the founding of the Council of the Indies has caused considerable controversy. Of the various hypotheses proposed, perhaps the one most widely-accepted is based on, or coincides with, the date mentioned by the eminent jurist, Juan de Solórzano y Pereyra (1575– 1655), in his well-known treatise, Política Indiana, which states that ‘… it was instituted by emperor Charles V on 1 August 1524 …’.29 The direct antecedent of the Council of the Indies was a junta, originally part of the Council of Castile, that the king referred to in March 1519 as 27  Spain’s possessions in America – or the West Indies, among other names – spanned territories in North, Central and South America detailed in Article 10, Chapter 1, Title II of the 1812 Political Constitution of the Spanish Monarchy: ‘Art. 10 – Spanish territory includes … In North America: New Spain with Nueva Galicia and the Yucatán peninsula, Guatemala, the internal Eastern provinces, the internal Western provinces, the island of Cuba with the two Floridas, Spain’s portion of the island of Santo Domingo, the island of Puerto Rico and adjoining ones, and the continent between the two oceans; in Central America: Nueva Granada, Venezuela, Peru, Chile, the provinces of Río de la Plata, and all adjacent islands in the Pacific and Atlantic Oceans; in Asia: the Philippine islands and those that depend on their government’. Cf. Felipe Tena Ramírez, Leyes fundamentals de México, 1808–2002, Mexico City, 2002, p. 61. The territory of New Spain thus covered huge parts of North America: ‘Considered in general, in 1742 it spread over a surface area, including the West Indies, of 1,638,980 km2 … a broad region extending from Yucatán to Texas to the north, including Coahuila, Nueva Vizcaya and further north to New Mexico; in the northwest to Sonora, to California in the west, and south to the isthmus of Tehuan­ tepec’. Cf. Antonia Heredia Herrera, México, in: Luis Navarro García (ed.), Historia general de España y América, América en el siglo XVIII, Los primeros Borbones, vol. XI.1, 2nd ed., Madrid, 1989, p. 461. 28  Fernández Albaladejo, Fragmentos de Monarquía, pp. 97–98. 29  Juan de Solórzano y Pereyra, Política Indiana, vol. II, ed. by Gabriel Ramírez, Madrid, 1739, p. 394.



The Royal and Supreme Council of the Indies471

simply: ‘Those of my Council who hear matters of the Indies’.30 But the royal decree (cédula real) of 14 September that year mentions the name ‘Council of the Indies’31 and indicates that its purpose was to oversee business from abroad.32 Ernst Schäfer, author of the most complete (and unsurpassed) study of this supreme institution of the Indies, explains that first there was a Consejo de Indias made up of councillors from the Council of Castile. However, that group soon proved inadequate for the immensity and complexity of the Indies, so it became necessary to create an autonomous organ. Thus, ‘it transpired most naturally in 1524 that the Royal and Supreme Council of the Indies was born of the Council of the Indies with its own president and councillors, secretarial officials and autonomous juris­ diction’.33 León Pinelo’s testimony is also important in terms of identifying the organ in the Council of Castile that oversaw matters related to the Indies prior to the formal, autonomous existence of the Royal and Supreme Council of the Indies. Pinelo states that in 1511 a ‘Junta [was formed] to hear the business of the Indies with the title of Council, presided by the Bishop of Palencia’.34 In this vein, but in the mid-17th century, Rodrigo Méndez Silva wrote: ‘In that year [of] 1511, the Catholic [King] Ferdinand established the Council of the Indies [as] was confirmed and perfected by the emperor, Charles V, in 1524’.35 Also, we know, thanks to Méndez Silva, that in the 18th century, Antonio Martínez Salazar, the king’s secretary and clerk of the Chamber of the Royal and Supreme Council of Castile, held the view that ‘The Catholic King Don Ferdinand V established the Council of the Indies in 1511; per30  J. H.

Parry, The Spanish Seaborne Empire, London, 1977, p. 63. Schäfer, El Consejo Real y Supremo de las Indias, vol. I, Madrid, 1935, p. 55. 32  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, p. 18. 33  Schäfer, El Consejo Real y Supremo de las Indias, p. 62. 34  Antonio de León Pinelo, Tablas cronológicas de los Reales Consejos Supremo y de la Cámara de las Indias Occidentales, 2nd ed., Madrid, 1892, p. 39. He also states: ‘1511. The council gave the first Ordenanzas. 1511. The council obtained the royal seal, and within three years rights were approved. The president had it under his power, and Secretary Conchillos was the Registrar. 1512. He was named Relator of the council of the Indies. 1519. He was named Portero; those who have [served] will be noted below. 1520. The council accompanied the emperor to La Coruña and then to Burgos. 1524. The council received the title royal and supreme, with its own President, Councillors, Fiscal, Secretaries and Ministers, in Valladolid. 1526. The council accompanied the emperor to Seville and Granada and returned to Valla­ dolid …’: see pp. 39–40. 35  Rodrigo Silva Méndez, Catálogo Real y Genealógico de España, ascendencias y descendencias de nuestros Católicos Príncipes y Monarcas Supremos, Madrid, 1656, f. 128v. 31  Ernesto

472

L. López Valencia

fected by the emperor Charles V in 1524’.36 From a modern perspective, García Pérez has analyzed the debate surrounding the date of the founding of the Royal Council of the Indies, and concluded, ‘whatever the date of the founding of the Council may have been, all authors agree that [by] 1524 the Royal and Supreme Council of the Indies was an institutional reality distinct from the Council of Castile, with its own organs of government, devoted to administering the recently-conquered territories’.37 The fact that the Council of Castile originally held jurisdiction over the Indies can be explained by the king’s desire to incorporate his American territories into the Crown of Castile, as emperor Charles V and Doña Juana expressed it on various occasions in 1519, 1520, and 1523. Their wish was that the West Indies remain joined to the Crown of Castile, with no possibility of being alienated from it. Philip II confirmed this in 1563, and Charles II and the Queen Governor, Mariana of Austria, reiterated it in 1680 in the Recopilación de Leyes de los Reinos de las Indias.38 It was by virtue of this perpetual incorporation of the West Indies into the Crown of Castile that ‘[the members] of the Council of Castile decided the difficult causes that emerged from there’.39 36  Antonio Martínez Salazar, Colección de memorias y noticias del gobierno General, Político del Consejo: Lo que observa en el despacho de los Negocios, que le competen: los que corresponden á cada una de sus Salas: Regalías, Preeminencias, y Autoridad de este Supremo Tribunal, y las pertenecientes á la Sala de Señores Alcaldes de Casa, y Corte, Madrid, 1764, p. 12. 37  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, p. 17. 38  Recopilación de Leyes de los Reinos de las Indias, libro tercero, título primero, ley primera, Madrid, 1681, f. Iv: ‘The West Indies shall always be united to the Crown of Castile, and cannot be alienated. – By donation of the Holy Apostolic See, and other just and legitimate titles, we are Lord of the West Indies, Islands and Mainland of the Ocean discovered, and to be discovered, and are incorporated into our royal Crown of Castile – And as it is our will, and so we have promised and sworn, they shall forever remain united for their greater perpetuity and solidity, we prohibit their alienation [and] order that at no time may they be separated, disunited, or divided in whole or in part from our royal Crown of Castile, neither their cities, villages, or populations, in no case, or in favour of any person. And considering the fidelity of our vassals, and the works, that the discoverers and colonists accomplished during their discovery and colonization, such that they may have greater certainty and confidence that they shall forever be and remain united to our royal crown, we promise, and give faith and our royal word, and that of the kings who are our successors, that they shall never be alienated or separated in whole or in part, neither their cities nor populations for any cause, or reason whatsoever, or in favor of any person; and if ourselves, or our successors were to make any donation or alienation against that which is hereby established, it shall be null; so we declare’. 39  ‘Memorial y discurso de las razones que se ofrecen para que el Real y Supremo Consejo de Indias deba preceder en todos los actos públicos al que llaman de Fland-



The Royal and Supreme Council of the Indies473

The fact that the bureaucracy of the Indies was led by the Council of Castile in no way precludes recognizing that the West Indies were constituted early on as an autonomous political entity, nor did this impede the emergence of a special union with Castile. Indeed, this explains why legislation for the Indies was an adaptation of Castilian law, and why those laws always supplemented those of the Indies. But this does not mean that the Indies were conceived as colonies, for no contemporary source refers to them as such. Rather, they received the same denominations as territories on the peninsula; i. e., kingdoms, provinces or dominions.40 Clearly, then, the Royal and Supreme Council of the Indies was instituted between 1523 and 1524, endowed from the first with its own ‘president, councillors, officials of secretariats and autonomous jurisdiction’.41 Its seat was established at the royal court because, like all councils, it had to be near the monarch.42 The adjective Supremo that it bore meant direct access to the monarch, and a series of limits that, in theory, impeded other organs from hearing issues that fell within its jurisdiction.43 Thus, no authority existed above that of the Council except, obviously, the monarch’s overarching power. (a) Regulation The Council of the Indies did not originally have its own ordinances, but was governed by the ordenanzas that regulated the Council of Castile, specifically those issued in 1480.44 Later, the New Laws (Leyes Nuevas) of res [sic], por el Doctor D. Don Juan De Solórzano y Pereyra, fiscal del dicho Consejo de las Indias’, in: Juan de Solórzano y Pereyra, Obras varias posthumas del Juan de Solórzano Pereyra: contienen una recopilación de diversos tratados, memoriales, papeles erudítos, y algunos escritos en causas fiscales, y todos llenos de mucha enseñanza y erudición, Madrid, 1776, p. 189. 40  ‘Above all, the [term] colonies, with which the American territories are usually designated, must be rejected, for no text of the period uses that name. The laws always employ their geographical name – Islands and Mainland of the Indies – or that of kingdoms, provinces, and, in the 18th century, dominions. Precisely those that are given to the peninsular territories’: Alfonso García-Gallo, La Constitución política de las Indias españolas, in: Alfonso García-Gallo, Estudios de Historia del Derecho Indiano, Madrid, 1974, pp. 489–514 at 500–501. 41  Schäfer, El Consejo Real y Supremo de las Indias, p. 44. 42  Cf. Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, título Segundo, Ley primera. 43  Barrios, Consolidación de la Polisinodia Hispánica y Administración Indiana, p. 128. 44  On the Ordenanzas de Toledo de 1480, see Dios, Ordenanzas del Consejo Real de Castilla (1385–1490), pp. 306 ff.

474

L. López Valencia

1542 established some guidelines for its jurisdiction, functions, and its obligation to defend the Indians. The first regulations that specifically governed the Council of the Indies were from Juan de Ovando’s unfinished Libro de la Gobernación temporal y espiritual de las Indias, also called the Ordenanzas del Estado de las Indias. Book Two established the basis for the later Ordenanzas Reales del Consejo de las Indias,45 promulgated on 24 September 1571, by Philip II.46 The Código ovandino set out to collect all the royal ordenanzas issued for the Indies, and so was the starting point of a project to compile the laws of the Kingdoms of the Indies47 and the norms they contained for regulating the council. Those norms gained such acceptance that they were published in 1585 and re-issued in 1603. This was complemented on 31 December 1604, with the decree La orden e instrucción que Su Mages­ tad manda dar para los cuatro secretarios de las Indias y el escribano de Cámara de Justicia de ellas (‘Order and Instruction that His Majesty sends for the Four Secretaries of the Indies and the Clerk of their Chamber of Justice’).48 In the royal provision issued in Madrid on 1 August 1636, Philip IV promulgated the ordenanzas, with some modifications, from Antonio de León Pinelo’s Recopilación de las Indias, which had been presented to the Council of the Indies in 1635. It is quite possible that León Pinelo omitted the dispositions referring to the Council of the Indies from his Recopilación so that they could serve temporarily for the royal provision of August 1636, on the understanding that when this body of laws was printed, the ordenanzas concerning the Council of the Indies would be annexed.49 These ordenanzas are basically those that subsequently appeared in the Recopilación of 1680, with some different nuances and changes incorporated over time, or introduced during the elaboration of that work.50 On 10 November 1713, the decrees and orders for the Nueva Planta y formación de tribunales were drafted,51 where the king ordered, among other things, that the Council of 45  Mariana Moranchel Pocaterra, Las Ordenanzas del Real y Supremo Consejo de Indias de 1636. Primera parte, in: Cuadernos de Historia del Derecho, 8, 2001, pp. 273–379 at 275. 46  I use here the first edition of the Ordenanzas Reales del Consejo de las Indias, Madrid, 1585. 47  Rafael Diego-Fernández, La visita al Consejo de Indias de Juan de Ovando y la Nueva España, in: Revista Chilena de Historia del Derecho, 22, 2010, pp. 445–457 at 446. 48  Archivo General de Indias (AGI hereafter), Indiferente general, 827 (printed). 49  See Ismael Sánchez Bella, La ‘recopilación de las Indias’ de León Pinelo, in: Revista Chilena de Historia del Derecho, 14, 1991, pp. 49–52. 50  García-Gallo, El Consejo y los Secretarios en el gobierno de las Indias, p. 779. 51  Biblioteca Nacional de España, Mss/905.



The Royal and Supreme Council of the Indies475

the Indies would have more presidents and councillors.52 But that reform of the council was shortlived, because in 1715 a counter-reform re-established the single presidency, eliminated the general attorneys (abogados generales) and reduced the number of councillors to ten: eight jurists and two noblemen. It also created a second general prosecutor (procurador general) and restored the double pathway of secretariats, covering Peru and New Spain.53 The Ordenanzas del Consejo Real de las Indias: nuevamente recopiladas y por el rey don Felipe quarto N. S. para su gobierno (1636) include a preamble that cites the imperial need for a compilation of laws and ordenanzas related to the Royal Council of the Indies. Although Philip II and Philip III had ordered such a compilation, it was not finished and remained incomplete until the reign of Philip IV: ‘Our Council, having seen, conferred and discussed what was convenient to alter, modify, or innovate in those stipulations, and what should remain intact, or that should be specified in those Ordenanzas, and having held due consultation, we have seen fit to approve [them], and send them to be published, so that once the said Compilation is definitively censored, printed, and promulgated, [it shall] be obeyed, observed, and enforced, and [shall] be distributed and incorporated, wherever applicable …’54 These Ordenanzas were also re-issued in 1681, and again in 1747.55 52  ‘I have resolved that this [Council of the Indies] shall henceforth be composed of three presidents, twenty councillors, ten learned, the other ten noblemen, one fiscal, two general attorneys [and] three secretaries, and that it shall be divided in three chambers, the first titled the Full Council, where all the aforementioned ministers shall congregate, and the chamber where all business and cases in serious ecclesiastical and general matters concerning Peru or New Spain shall be heard and dispatched, and all decrees and orders issued shall arrive there first, and all representations and business, and letters that may arrive from those kingdoms; and their contents having been seen and read, the business and cases they contain shall be assigned to the relevant chamber, either [that] of Government or of Justice; that of Government shall be attended by the three presidents, eight councillors, four attorneys and the other four noblemen, the fiscal, and one of the secretaries on the days that this chamber shall stipulate to hear business and cases from each one of the three with separation of matters and kingdoms. The Chamber of Justice shall be [staffed] by the six [other] trained councillors who shall not serve in that of Government, the two general attorneys, and the secretary whose turn it is according to the day and business to be heard’: Biblioteca Nacional de España, Mss/905, f. 14. 53  Escudero, El Gobierno Central de las Indias: El Consejo y la Secretaría del Despacho, pp. 102–103. 54  Consejo De Indias, Ordenanzas del Consejo real de las Indias: nuevamente recopiladas y por el rey don Felipe quarto N. S. para su govierno, establecidas año de MDCXXXVI, Madrid, 1681, pp. 4–5. 55  Consejo De Indias, Ordenanzas del Consejo real de las Indias: nuevamente recopiladas y por el rey don Felipe quarto N. S. para su govierno, establecidas año de MDCXXXVI, Madrid, 1747.

476

L. López Valencia

20 January 1717 brought three new decrees that reformed the Royal Council of the Indies. One replaced the president, Conde de Frigiliana, with Andrés de Pez, but as governor, not president. The number of councillors was reduced to eight: six jurists and two noblemen, but the two secretaries and fiscals were maintained. Finally, this decree eliminated the Junta de Azogues and placed its business under the jurisdiction of the council. The second decree had several objectives. First, it ordered all councils to reside in the palace where Queen Doña Mariana of Austria had lived, to expedite the handling of all subjects’ business. In this vein, it also set rules to optimize the work of the secretariats, prevent nepotism, and ensure that positions would be filled by worthy men. Finally, it ordered the creation of a visiting minister appointed by the president of the council (or the governor who was performing his functions). This Visitador was responsible for auditing, annually, the offices of the secretariats and the Council’s Chamber of Commerce to verify their faithful compliance with the laws and ordenanzas that regulated their duties. The third decree modified the competencies of the Council of the Indies regarding justice and government in the New World by establishing the monopoly of the vía reservada (i. e., the ‘executive mechanism of government … allowing the king and his secretaries of state and the cabinet to deal with key matters of government without the intervention of the governing councils’)56 over the issuing of decrees, dispatches and all norms applicable in the Indies in questions of government. This measure was made more explicit in a decree issued on 11 September 1717, which cemented the vía reservada – removing its subject-matter from the council’s competence – for all things related, directly or indirectly, to the royal treasury, war, commerce, navigation in the Indies and Spain, and the provision of jobs, offices and orders related to those regions. On all these topics, the council’s sole responsibility was to provide the monarch with the information he might require. Just one year after re-establishing the Chamber of the Indies, the king suppressed it again, as a way to strengthen the vía reservada. Despite this loss of power, the council held on to important functions: handling all matters concerning municipal government in the Indies and observance of its laws, provided they were unrelated to the matters that the decree of September 1717 assigned to the vía reservada. The council also maintained the power to grant licenses for passage to the Indies, and to hear issues concerning royal patronage (Real Patronato), as well as the obligation to consult the monarch on any provisions drafted in relation to patronage.57 56  F. A. Eissa-Barroso, The Spanish Monarchy and the Creation of the Viceroyalty of New Granada (1717–1739). The Politics of Early Bourbon Reform in Spain and Spanish America, Leiden, 2016, p. 113.



The Royal and Supreme Council of the Indies477

(b) Composition The composition of the Council of the Indies varied throughout its existence, though its competence included the four branches of public administration – government, justice, the treasury, and war – and its essential functions were performed in two chambers: that of Government (though Charles III later divided this chamber into two) with a president and his councillors; and that of Justice, manned by jurists and a president. Philip III’s decree pronounced in Valladolid on 27 August 1600, made the Chamber of War permanent.58 That body had met prior to this date, but had no formal or permanent status.59 In finance, the Council of the Indies had been responsible for all matters concerning the royal treasury of the Indies since its creation as an autonomous organ of the Council of Castile. But in 1592, its powers in that area were extinguished in favour of the Council of the Treasury (Consejo de Hacienda) by Philip II, who in 1595 ordered the creation of a treasury board (Junta de Hacienda). But that body functioned only ephemerally after February 1596. In 1600, the board was re-established in a more organized form with a president, six councillors from the Council of the Indies and two others, the fiscal and the secretary of the treasury. They were ordered to meet twice a week.60 (aa) The president of the Royal and Supreme Council of the Indies Before 1524, while the Council of Castile was responsible for governing the Indies, the principal councillor responsible for dealing with matters of the Indies (los asuntos de las Indias) was Bishop Juan Rodríguez de Fonseca. 57  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, p. 39. 58  ‘I. The Council of the Indies shall have a Board of War for matters of that nature, on Tuesdays and Thursdays. We order that for the business and matters of war that may come before our Council of the Indies, said council shall be attended by the Councillors of War, whom we shall appoint, such that a Board of War shall be formed from the ones and the others, which shall continue and be conserved as up to now, due to the good effects that have resulted, and that result from the resolutions, that with their agreement and viewpoint we have seen fit to be executed, and that it [meet] all Tuesdays, and Thursdays that were of council in the morning, at the hour and in the manner as is done today’: Ordenanzas de la Junta de Guerra de Indias. Nuevamente recopiladas por el rey Don Felipe Quarto para su gobierno, establecidas año de M.DC.XXXVI, Madrid, 1636, pp. 3–4. 59  Héctor José Tanzi, La Junta de Guerra de Indias, in: Revista Chilena de Historia del Derecho, 5, 1969, pp. 81–96 at 84. 60  Antonio Dougnac Rodríguez, Manual de historia del derecho indiano, Mexico City, 1994, p. 85.

478

L. López Valencia

Some authors refer to him as the president of the Council of the Indies,61 but he never formally received that title.62 In contrast, the Royal and Supreme Council of the Indies had a president from its founding in 1524 as an autonomous organ. He was appointed directly by the king because that position was always deemed of great importance.63 Though recognized formally as primus inter pares, in reality the president enjoyed higher status than the other councillors by virtue of the enormous breadth of his powers. Indeed, it is no exaggeration to say that the president was a ‘central cog in the workings of the Supreme Tribunal of the Indies’.64 While appointing the president was the monarch’s exclusive prerogative, he is thought to have sought advice before selecting the person judged ideal for the post. In this regard, Manuel José Ayala (1728–1805) wrote that the Secretary of State of the Indies proposed candidates for the king’s consideration; men who, in his estimation, were capable of performing that office.65 In Chapter XLV of the Instrucción 61  Schäfer stated: ‘The “presidency” of said council during that time was in the hands of the elderly Bishop Fonseca …’, but in fn. 38 he clarifies that a disposition sent specifically to the Casa de Contratación, signed by Sámano and dated 25 January 1522, refers expressly to the Presidente del Consejo de Indias, though the emperor never called him so. As proof, Schäfer cites a decree of 22 October 1523, signed by the emperor, where this official is never referred to as president, while also indicating that ‘[there] never existed, as far as we know, an official appointment of Fonseca as president of the Council of the Indies, because this was not yet a full authority’: Schäfer, El Consejo Real y Supremo de las Indias, p. 61. 62  Muro Orejón, Lecciones de historia del derecho hispano-indiano, p. 151. 63  The president of the council had to be a ‘person of proven customs, clean lineage, God-fearing, and chosen for his learning and prudence. He may be trained or not. Upon swearing the obligatory oath during the act of possession [he] shall say: that he will exercise it well and faithfully, shall protect and observe the laws of the kingdom, both those already made and those that may be made for the good government of the Indies, as well as the ordenanzas of the council and its secrecy. That he shall communicate, by word, or in writing, to the monarch that which he considers convenient concerning the business and things of the Indies. When voting, he shall do so freely and with no personal affectation. He shall with great care procure all things related and pertaining to the good spiritual and temporal government of the states of the Indies, the good treatment and conservation of the Indians and, in all things, shall look, seek and procure what is understood to be in the service of God and the king, in good conscience he shall increase the royal treasury for the good and betterment of those states, proceeding in all he does as a good and faithful minister. These are its attributions: government, Indians, the treasury, ecclesiastic patronage, delegation of cases, distribution of disputes and determination of the days to hear and decide cases … At times when the council has no president, it shall be led by a governor during the vacancy’: Muro Orejón, Lecciones de historia del derecho hispano-indiano, pp. 153–154. 64  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, p. 72. 65  Cited by García Pérez in: El Consejo de Indias durante los reinados de Carlos III y Carlos IV, p. 62.



The Royal and Supreme Council of the Indies479

Reservada para la Junta del Estado (8 July 1787), the king explained that ‘The choice of presidents and governors of my councils is now, and shall always be, the most effective way to [ensure] that these tribunals have all the powers they need, and produce all the good for which they were instituted, so I shall be sure to remain informed, and to consult the Junta on cases that arise …’ Thus, he ordered that ‘[the Junta] shall be mindful of the fact that neither birth nor grandeur, a military career, or any other such accidental quality, shall be the basis of these elections; so, insofar as possible, they must fall only upon the wisest, most esteemed and active men that can be found … [men] respected for their age, decorations and experience in government’.66 The first president of the Council of the Indies was the general of the Dominican Order, Friar García de Loaisa y Mendoza, emperor Charles V’s confessor, Bishop of Osma, and Cardinal of Santa Susana, who later served as Archbishop of Seville and in the post of general inquisitor. He was appointed on 4 August 1524, and sworn into office on 8 August at an annual salary of 200,000 maravedíes,67 though that increased over time.68 He was president from 1524 to 1546, though we know that he ceased to perform his duties after 1529, when they were carried out, provisionally, by the Duque de ­Osorno from 1529–1546, except in 1536–1537, when García de Loaisa exercised the office again. Upon the Duque de Osorno’s death in 1546, he was succeeded by Luis Hurtado de Mendoza (Marqués de Mondéjar), who served until 1559. The position was vacant for the following three years, until Don Juan Sarmiento held it for two years (1563–1564). Francisco Tello de Sandoval was president from 1565–1567, followed by Luis Méndez Quijada, from 1558–1570.69 The Ordenanzas of 1571 (in the first year of Juan de Ovando y Godoy’s presidency) installed a council with a powerful president but reduced the role 66  Carlos III, Instrucción Reservada que la Junta de Estado, creada formalmente por mi Decreto de este día, 8 de Julio de 1787, deberá observar en todos los puntos y ramos encargados a su conocimiento y examen, in: Antonio Ferrer Del Río, Obras originales del Conde de Floridablanca, y escritos referentes a su persona, Madrid, 1867, pp. 219–220. 67  A[rchivo] G[eneral de] S[imancas], Escribanía mayor de rentas, Quitaciones de corte, leg. 20, fols. 597–602, ‘Presidente del consejo de Indias, con 200,000 maravedís de quitación, 4 Aug. 1524’; Aurelio Espinosa, The Empire of the Cities: Emperor Charles V, the Comunero Revolt, and the Transformation of the Spanish System, Leiden, 2009, p. 139, fn. 10. 68  By 1717, the president’s annual salary was eight thousand escudos, de diez reales de vellón: Muro Orejón, Lecciones de historia del derecho hispano-indiano, p. 154. 69  León Pinelo, Tablas cronológicas de los Reales Consejos Supremo y de la Cámara de las Indias Occidentales, pp. 2–5.

480

L. López Valencia

of the secretary, who only attended meetings when invited, and shared his duties with two important clerks, one of State, the other of Justice. The preeminence of the president of the council during Ovando’s time was evidenced, for example, by the fact that appointments to offices and assignments of responsibilities – tasks previously performed in collaboration with the councillors – became exclusively matters for the president, as the royal decree of 6 October 1571 stipulated. Upon Ovando’s death, the councillors began to protest vociferously against the president’s excessive powers, and when the former Viceroy of New Spain and Archbishop of Mexico, Pedro Moya de Contreras, became president in 1591, another decree (on 31 January) ordered a return to a collegial form of government between president and councillors. But after Moya de Contreras’ death in 1592, the council had no president for over three years, allowing the councillors to increase their power until they regained control over appointments.70 As we have seen the presidency of the council could be exercised by a governor or president. It seems that kings preferred to name governors to lead the Council of the Indies because, although both figures exercised the same powers, a governor’s appointment could be revoked at any time. Whoever was president of the Council of the Indies enjoyed vast powers. The Ordenanzas of 1571 authorized him to distribute and assign cases to the councillors as he saw fit. They, in turn, analyzed the petitions and documents and elaborated an ‘opinion’. The president had to attend the morning and afternoon council meetings. He could divide the council into the divisions or chambers he judged necessary, and assign to each the disputes or business to be heard each day.71 He had to inform the king of the names of the members of each chamber, but could replace – or move – them depending on the cases and business that were pending,72 though he lost this power in a decree of 15 March 1752, that instituted a permanent Chamber of Justice with a fixed number of jurists who met whenever necessary to resolve matters in their jurisdiction. For a few years, this situation deprived the president of the prerogative to name the councillors that would hear legal cases; but a decree of 2 January 1764 restored the privileges that the president had enjoyed before 1752.73 Finally, he had to keep punctual and detailed records of all matters heard and resolved.74 70  Escudero, El Gobierno Central de las Indias: El Consejo y la Secretaría del Despacho, p. 100. 71  Ordenanzas Reales del Consejo de las Indias dadas en el Pardo en 1571, Madrid, 1585, p. Xr and Xv. 72  See Real Decreto, 2 de enero de 1764, in AGI, Indiferente General, 535. 73  Margarita Gómez, Instrucciones para el gobierno del Presidente o Gobernador del Consejo de Indias, in: Historia. Instituciones. Documentos, no. 31, 2004, pp. 287– 300 at 289, fn. 5. This reference contains an erratum which points out that the royal



The Royal and Supreme Council of the Indies481

In addition to deciding what disputes and cases would be heard and where, the president could visit the Chambers of Government and Justice whenever he wished, monitor how they were being run, be informed of the nature and handling of business and cases, and, if he felt it necessary, inform the king of his concerns. He also had the authority to make certain appointments; for example, he could assign a councillor to the post of judge of the Ministers of Council, designate resident judges, appoint the secretary of the presidency and its officials, the chaplain and the sacristan, two marshals (alguaciles), sweepers, the preachers of the council, and permanent or interim relatores (rapporteurs).75 He also named the minister (Ministro Visitador) who audited decree that returned the aforementioned power to the president is dated 2 January 1774, but that the correct year is 1764, as can be deduced from the author’s own argument, which indicates that the suspension of this prerogative was for a period of only 12 years after 1752. Cf. García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, p. 6, and AGI, Indiferente General, 824. 74  Ordenanzas Reales del Consejo de las Indias dadas en el Pardo en 1571, p. Xv. 75  ‘The ordinances of 1480 present a detailed description of the functions of an official called the relator, especially regarding matters of government, where one of his obligations was to punctually prepare a synthesis (extract) of the most salient contents of every matter brought before the council. Before each council session, he had to post the list of cases to be heard that day on the chamber door, indicating the precise time for each one. He attended all council meetings, staying to the end unless ordered to attend to other matters. Once the session began, his work consisted in composing a brief exposition of the topic or petition presented – “with no extraneous information” (sin poner otra razón en medio). The councillors began their deliberations with an admonishment to expedite the process unless they “wished to debate certain aspects”. They could raise challenges and request all clarifications deemed necessary to form an opinion. For this reason, the relator had to take the original documents of all cases to the session and have them available for consultation. The Memorial of the ordinances elaborated for the council – a text dated around 1490 – filled in some gaps in judicial aspects that had been treated deficiently in the council’s ordinances of 1480. To achieve this, the instrument drafted in 1490 included norms to regulate pronouncements made by the Cancillerías and Audiencias. Particularly important was the directive that all processes were to be presented to the council through its clerks (escribanos), who would deliver them to the relatores, as occurred in the Cancillería. Also significant was the relatores’ responsibility to point out defects in the documents and hold the clerks responsible for such errors or omissions. Likewise, the relatores were instructed to keep all processes well-ordered and, where possible, consult with the parties or their procurators before the cases were voted on. Book Two, Title Nine, of the Recopilación de las leyes de los Reynos de las Indias briefly specifies seven precepts regarding the “Relatores of the Royal Council of the Indies”, for they were also obliged to elaborate the memorials personally in their homes, and make periodical lists of the cases heard and those presented for consideration. With respect to the memoriales of disputes, the recommendation was to prepare a document only in those cases where it was absolutely necessary, and only when requested by the parties involved. In all cases, the relator was urged to ensure that their elaboration in no way delayed hearing the dispute. This official’s most fun-

482

L. López Valencia

the offices of the Council of the Indies, and had the right to vote on all issues, except those of justice if he was not a trained jurist. Finally, though his personal vote carried the same weight as those of the other councillors, as primus inter pares his vote could be taken by the monarch as the deciding vote.76 (bb) Councillors It is evident that the councillors were ‘the heart of the Supreme Tribunal of the Indies … the axis around which the entire administrative and judicial machinery revolved’.77 Solórzano relates that at its founding in 1524, the Royal and Supreme Council of the Indies had the following councillors: Friar Luis de Vaca, Bishop of Canaria, Dr. Gonzalo Maldonado, Bishop of Ciudad Rodrigo, Dr. Diego Beltrán, prothonotary, Pedro Mártir de Anglería, and Dr. Lorenzo Galindez de Carvajal.78 We must remember, however, that the council’s status as ‘supreme’ is the subject of debate. Schäfer affirms that it was not subordinated to any other organ after its creation in 1524, an opinion supported by Solórzano y Pereira, who argued that the laws gave it this character from the outset: ‘it can be called supreme, because the express, repeated words of all laws give it this name [as do] the royal ordenanzas that have been issued for its creation, and direction’.79 But, Demetrio Ramos and García-Gallo maintain that this status was not granted until the ordenanzas of 1571 expressly declared it. The number of councillors varied during the council’s existence,80 as did their salaries, functions and the appointment procedure. It was the king’s damental and specific task – the summaries (relaciones) – are also mentioned. General stipulations included that these documents had to be signed by the relator and the parties’ lawyers, which entailed reaching a mutually agreed-upon final version. Finally, all documents and decrees ordered had to be composed personally and reviewed by the most recently-named councillor’. Agustín Bermudez Aznar, El oficio de relator en el Consejo de Indias, in: José de la Puente Brunke/Jorge Armando Guevara Gil (eds.), Derechos, instituciones y procesos históricos: XIV Congreso del Instituto Internacional de Derecho Indiano, vol. I, Lima, 2008, pp. 429–456 at 431–433 and 453–455. 76  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, pp. 70–72. 77  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, p. 95. 78  Solórzano y Pereira, Política indiana, vol. 2, p. 394. 79  Solórzano y Pereira, Política indiana, vol. 2, p. 395 (emphasis added). 80  Variations in the number of councillors according to the needs of the moment are evident: in the year of its founding (1524), the Council of the Indies had 5 councillors and a president. León Pinelo writes that the number increased to 14 councillors



The Royal and Supreme Council of the Indies483

prerogative to name councillors after evaluating proposals provided by the Council of Castile, or its chamber, until the Indies acquired the status of término – thus becoming the equal of the Council of Castile.81 As mentioned above, there were eight councillors in 1717, six jurists and two noblemen. In 1750, that number increased to twenty-two, but shortly afterwards, in 1760, declined to sixteen.82 In 1773, when the council was granted the status of término, the king authorized two new positions for jurists. Then, a decree issued in 1776 added three more posts, also for jurists, raising the number to thirteen. The decree of 11 May 1776 named José Antonio de Areche as a jurist-member and appointed Antonio Mon y Velarde to the seat vacated by the death of Jacobo Andrés de Huerta. Though official membership did not increase, the number of councillors had, in effect, grown to fifteen. 1776 also brought the order to organize the council in three chambers, two of Government and one of Justice, with instructions for the chamber to nominate councillors when seats were vacated. Preference was given to men knowledgeable in letters and with experience in questions concerning the Indians. The number of councillors increased constantly in the 18th century, from nineteen in 1788 to twenty-three in the three chambers in 1793, as the number of noble members increased to five in the decree of 25 August 1785. Early in the 19th century, there were twenty-nine councillors, without counting ‘honorary’ members. This expansion of the Council of the Indies is understandable for it undoubtedly reflected a substantial increase in the workload generated by free trade in America, the resulting intensification of commerce, and the elimination in 1790 of the Casa de Contratación (the House of Trade, founded in Seville in 1503 to create a corporate monopoly for Castile and Seville to govern Spanish trade with the New World). Thus, the heyday of the Counand a president in 1645. Cf. León Pinelo, Tablas cronológicas de los Reales Consejos Supremo y de la Cámara de las Indias Occidentales, p. 13. Later, in 1680, the Recopilación de Leyes de los Reinos de las Indias stipulated eight councillors, a fiscal, two secretaries and a Lieutenant-Grand Chancellor. Cf. Recopilación de las leyes de los Reynos de las Indias, Libro Segundo, Título II, Ley primera, p. 132v. 81  The phrase estatus de término signified that with respect to its prerogatives and salaries the status of the Council of the Indies was comparable to that of the Supreme Council of Castile. This meant that its councillors had reached the zenith of the cursus honorum of the judicial career and so could not aspire to a seat on the Council of Castile. Cf. a royal decree of Charles III that says: ‘Having present the ancient establishment of the Council of the Indies in the year 1524, with equality to that of Castile … I have decided to declare, that it be of término, and that its ministers enjoy the same salaries and prerogatives, and exemptions as those of the Council and Chamber of Castile … En San Ildefonso a 29 de julio de 1773. Al Duque de Alba’, in: Antonio Sánchez Santiago, Idea elemental de los tribunales de la Corte en su actual estado y última planta, Book II, Madrid, 1787, p. 104 (emphasis added). 82  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, p. 48.

484

L. López Valencia

cil of the Indies came in the late 18th century with improvements as regards its ministers, both quantitative and qualitative improvements. Indeed, that was a period without precedent in the existence of the Supreme Tribunal of the Indies.83 The presence of two types of councillors was not constant throughout the history of the Council of the Indies, since in the first 100 years all members were jurists. This lasted until 1626, when Philip IV began to appoint noblemen with no training in jurisprudence. They participated in all of the council’s functions, and could even be named to the Chamber of the Indies; however, they could not vote on strictly judicial issues, as that was reserved for trained jurists. The latter always formed the majority, but their weight did not depend only on their numerical superiority; in reality, before 1717 and after, they were the backbone of the council.84 During his presidency in the late sixteenth century, Juan de Ovando held that it was desirable for the jurist-councillors to have experience in the Indian tribunals, since they tended to see the Council of the Indies as a rung on a ladder that could lead to an appointment on the Council of Castile, at least until the Council of the Indies was granted the status of término in 1773. Solórzano y Pereira (1575–1655) observed in his Política Indiana published in 1647: The assumption is that the status and preeminence of the councils and [their] ministers is seen and regulated by that of the kingdoms and states they govern and represent, and that for this reason the ministers are called princes and lords; it seems beyond doubt, that [the Council] of the Indies should be above that of Flanders, as it is responsible for governing not just a county or kingdom, but an empire that encompasses so many kingdoms with such rich and powerful provinces: or, perhaps better, the broadest and most extensive monarchy the world has ever known; [one that] includes, in effect, another world many times greater than the one discovered before, and populated in Europe, Africa, and Asia, so that today one can travel around the Earth without ever leaving the boundaries of Your Majesty’s happy and august empire.85

83  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, pp. 111–115. 84  Mark A. Burkholder, The Council of the Indies in the Late Eighteenth Century: A New Perspective, in: Hispanic American Historical Review, 56.3, 1976, pp. 404–423 at 406. 85  Memorial y discurso de las razones que se ofrecen para que el Real y Supremo Consejo de Indias deba preceder en todos los actos públicos al que llaman de Flandres [sic], by Doctor D. Don Juan De Solórzano y Pereyra, fiscal del dicho Consejo de las Indias’, in: Solórzano y Pereyra, Obras varias posthumas del Juan de Solorzano Pereyra, pp. 177–179.



The Royal and Supreme Council of the Indies485

The important decree of 29 July 1773, finally raised the status of the Council of the Indies to equal that of the powerful Council of Castile, at least in relation to the cursus honorum of its councillors.86 This new reality revitalized the Council of the Indies, for royal recognition of the equality of the two meant that the members of the latter enjoyed the same prerogatives, exemptions and salaries as those of the former. Moreover, attaining the status of término meant establishing, for the first time, a formal sequence for promoting the officials entrusted with administering justice, who would no longer – necessarily – aspire to positions on the Council of Castile since the apex of their judicial careers could be an appointment to the Council of the Indies.87 With the decree of 1773, and the emphasis on naming trained jurists with experience in America to positions on the Council of the Indies, legal professionals could begin their judicial careers in the Indies and then return to the Iberian Peninsula to occupy important posts in the administration of Indian justice. These developments transformed the Council of the Indies into a most impressive body administered by men with broad knowledge of the complexities of the New World. Traditionally (i. e., before the Council of the Indies was granted the status of término in 1773), the high judicial bureaucracy of the Catholic monarchy had consisted of two parallel branches. The one in the metropolis included several Audiencias, the Chanceries of Valladolid and Granada, and various councils, with the Royal Council – or Council of Castile – at its summit. The Council of the Indies belonged to this category all the way up to 1773 as a second-order body inferior to other councils and tribunals. This meant that men who aspired to seats on the Council of Castile had to travel a tortuous professional path that could entail serving on the Council of the Indies. Ascendancy to the high Spanish judicial bureaucracy could also be obtained through the Indies; a journey that might begin in lower tribunals in Spanish America and perhaps include a promotion to an important Audiencia, such as that of Guadalajara or Charcas. The high point of this judicial career was a seat on the Viceregal Audiencia in Mexico (New Spain) or Lima (Peru). Only rarely were jurists promoted from American tribunals to the Council of the Indies since – it must be remembered – seats there traditionally pertained to the cursus honorum of the metropolitan, not colonial, bureaucracy. There were of course exceptions, and there were some cases in the 18th century in which men went to Spain to become part of some tribunal or council there after serving in Indian Audiencias.88 86  Feliciano Barrios Pintado, España 1808. El gobierno de la Monarquía, Madrid, 2009, p. 80. 87  Burkholder, The Council of the Indies in the Late Eighteenth Century: A New Perspective, pp. 406–407. 88  Burkholder, The Council of the Indies in the Late Eighteenth Century: A New Perspective, p. 407.

486

L. López Valencia

The Council of the Indies also had two other types of councillors: supernumerary and honorary ones, but they did not occupy seats at the council, and their appointments exceeded the number of members stipulated by law to serve on the council. In the 17th century, the number of supernumerary members rose disproportionately; indeed, to such a degree that in 1747, the Marqués de Ensenada sent a report to the king urging him to put an end to the plague of supernumerary officials. During the reigns of Charles III and Charles IV, there were as many as 17 supernumerary councillors. One benefit that accrued to men in this position was the right to be granted a full seat on the council when one became vacant. The ‘honorary’ councillors, however, did not enjoy this privilege, although there are documented cases in which they enjoyed this privilege nevertheless. Supernumerary councillors might receive a salary, but often served without receiving payment until granted the status of full councillor. The honorary councillors, once again, were treated differently when they appeared in the 18th century, as they received neither salary nor any kind of additional benefit (emolumentos). The status of honorary councillor was conferred mainly under two circumstances: as a reward for services rendered to the crown; or to strengthen the position of an official entrusted with an important task or mission, as in the case of Jorge Escovedo, who bore the title of honorary councillor while carrying out official inspections (visita) of all the tribunals of justice and royal treasuries in the kingdoms of Peru and Chile, and the provinces of Río de la Plata.89 (cc) Powers of the councillors While the competences of the ministers of the Council of the Indies were spelled out in several Ordenanzas para este Real y Supremo Consejo, their principal responsibility was to ensure fulfillment of ‘the council’s duty’, this being the theoretical foundation of an institution that existed to assist the monarch in the exercise of his sovereignty. Pérez-Prendes has written that ‘the council’s duty’ was the origin of the Council of the Indies, as the monarch ‘decided to establish, through a permanent and specialized decree, one of the possible dimensions of the exercise of the council’s duty that empowered it to convoke courts, call meetings of the Junta, or request individual opinions, all this ad libitum …’ Moreover, ‘the councils of the Habsburg Monarchy were not mere consultative or advisory organs, but were at the monarch’s disposal as bodies that could resolve issues through express royal delegation …’.90 In summary, the councillors had to attend council sessions,

89  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, pp. 96–101.



The Royal and Supreme Council of the Indies487

hear and analyze matters, and then vote. Also, they were obliged to appear before all juntas and commissions that called them, and fulfill all obligations when named visiting judge, judge of sanctions, weekly judge, or protector (see below).91 As judges on the Council of the Indies, councillors could be given special commissions, which they had to perform in parallel to their other functions. Each year, for example, the president or governor of the council named one member as visiting judge. This officer had to visit the secretariats and other offices of the council, as established in a decree of 1717 (though this measure had also appeared earlier in the Recopilación of 1680).92 On 2 January 1747, a new decree reaffirmed the order that a councillor had to be named as visiting judge to inspect the subordinate offices of the council. That document further stipulated that he was to submit a report to the monarch at year end detailing the results of his visits and apprising him of the measures he considered timely to enact. On his visits, the judge audited those offices and evaluated the men who worked there, including all subordinates of the council, except the office of seals and records (sello y registro). He also verified the correct keeping of all registers, making sure they existed and were up-todate, as stipulated by law, and adequate record-keeping of all disputes, judgments and cases. His visits also provided litigants and other parties with the opportunity to denounce perceived extortions or injustices committed by council employees during the exercise of their functions.93 Another role that councillors could be assigned was that of judge of the Chamber of Penalties (juez de penas de Cámara), instituted by Philip IV in 1633, when he decided to entrust this responsibility to a minister of the

90  Mariana Moranchel Pocaterra, El deber de Consejo y su reflejo institucional en los dominios indianos (siglos XVI–XVIII), in: Cuadernos de Historia del Derecho, 2010, vol. extraordinario, pp. 403–420 at 414. 91  Moranchel Pocaterra, El consejo de Indias y su relación con la vía reservada en el reinado de Felipe V, pp. 193–194. 92  Recopilación de leyes de los Reynos de las Indias, Libro Segundo, Título III, Ley XVIII, pp. 152–153: ‘That each year the president shall name one councillor who shall be the Visitor of the Officials, and another as Superintendent of the Accountants. – We order, that the rapporteurs, the clerk of chambers, the marshal and the door attendants of our Council of the Indies, and the attorneys and procurators, and any other officials of said council, shall be visited annually by one of its councillors, named by the president of said council, to better understand how offices are being used, and those of the council shall sanction with care those who in said visit[s] is found guilty, sentencing what seems to them convenient, so that there is good order in all things, and discharge of our conscience …’. 93  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, pp. 184–185.

488

L. López Valencia

council because it directly affected the Treasury of the Indies.94 Acting in the king’s name, this councillor was responsible for collecting all fines and penalties imposed by the Council or Chamber of the Indies, and for enforcing the judgments handed down by those tribunals by any means necessary to ensure obedience to all the monarch’s edicts and decrees. This could mean ordering prison sentences, embargoes, conciliation, liquidations, or adjudicating property. All property, goods and materials consigned by this judge were placed at the disposal of the Council of the Indies to help meet its expenses.95 Regarding this topic, we must also consider the royal instruction approved on 20 December 1785, and published on 13 March 1786, which stated: ‘that by my Royal Order a Junta shall be formed, made up of ministers of the tribunal, to ensure the collection of the fines imposed by the council and chamber, and of all other moneys applicable to this fund’. This document recognizes that all revenues from sentences issued by the chamber were to be used by the council for ‘its expenses’, by virtue of the king’s resolution of 25 February 1743, and other general decrees issued pursuant to it, including one of 3 June of that year, and another dated 1 March 1744. But this did not mean that these revenues ceased to pertain to the royal treasury; rather, the existing rules and privileges for collection had to be respected. Since the monarch had declared that the Secretary of State and the Universal Office of the Indies was also the general superintendent of the royal treasury (13 March 1786), this official therefore had exclusive jurisdiction and administration over matters involving the sanctions applied by the council. This impeded actions by other tribunals and judges, except the Council of the Indies and the minister of the council appointed by the king to serve as judge of condemnations and penalties, who acted as the general sub-delegate of the general superintendent. By the same token, the measure also inhibited all other judges and tribunals endowed with powers to collect and administer revenue.96 The office included the right for the general sub-delegate judge or minister to appoint sub-delegates in the kingdoms of the Indies, and to name regents for the Audiencias. These officials had to process all matters related to the sanctions imposed by the tribunals. For provinces and islands far from the capital, or ones whose specific conditions constituted an 94  Moranchel Pocaterra, Mariana, Los libros de condenaciones del Consejo de Indias, in: Clío & Crimen, 10, 2013, pp. 207–224 at 217. 95  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, pp. 179–180. 96  Carlos III, Instrucción que S. M. manda formar para el arreglo de la exacción y cobranza de las Condenaciones y Multas impuestas por el Supremo Consejo y Cámara de Indias, y de los demás caudales aplicados a este fondo en virtud de Reales Resoluciones, Madrid, 1786, pp. 1–3.



The Royal and Supreme Council of the Indies489

unreasonable burden for a regent, causing delays in collecting revenues, and other possible losses or expenses, the general sub-delegate could appoint men that he judged capable of performing these functions, usually from among those who already exercised jurisdiction in those places. Appointments of this kind had to be registered in the accounts of sub-delegations to prove the identity of the men who acted in this capacity.97 Another function to be fulfilled by a member of the Council of the Indies was judge-protector. Responsible for representing parties in questions of government and justice, these agents did not pertain formally to the council; however, they soon proliferated and began to cause problems, primarily corruption. This led Charles III to limit their number to 30 in an edict issued on 30 April 1777, and confirmed by the decree of 15 July 1778, which gave them honorary titles. As a consequence, the council sent a consultation to the monarch who, in a reply dated 23 February 1782, named Pedro Muñoz de la Torre judge-protector of the agents of the Indies.98 His powers (established on 31 January 1780)99 included overseeing the agents’ finances, presiding over meetings that affected their interests, supporting their just claims, ensuring that they exercised their offices faithfully, correcting their errors and defects, guaranteeing that only they solicited matters in the secretariats and that they complied with the terms set out in the decree of 15 July 1778. In addition, the king gave Muñoz de la Torre jurisdiction to hear and resolve, at first instance, disputes that might arise among those agents or between them and other parties. In the case of appeals brought against its judgments, the council was the organ entrusted with hearing them. In 1795, a new decree increased the number of soliciting agents to fifty, but revoked their exclusivity in relation to Indian issues. It also named a judge of agents who enjoyed the powers in 1780 granted to the protector.100 Another obligation of the ministers of the Council of the Indies was to take turns serving as weekly judge, i. e., an official who acted as a kind of inspector of the work of the other councillors. His responsibilities included 97  Ibid.,

pp. 4–5. Academia de la Historia, Catálogo de la colección Mata Linares, vol. IV, Madrid, 1972, p. 7: ‘7681. – Real Cédula a D. Pedro Muñoz de la Torre nombrándole Juez Protector de Agentes de Indias. El Pardo, 23 de febrero de 1782. – 7682 – Real Cédula del Virreinato de Nueva España dándole a conocer el nombramiento de Juez Protector de Agentes de Indias y para que las oficinas den noticia de los negocios a las partes del Estado. Madrid, 23 de febrero de 1782’. 99  Real Academia de la Historia, Catálogo de la colección Mata Linares, vol. IV, Madrid, 1971, p. 491: ‘7491. – Real Orden sobre facultades del Juez Protector de Agentes de Indias. Madrid, 31 de enero de 1780’. 100  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, pp. 239–240. 98  Real

490

L. López Valencia

reviewing the drafts of provisions, decrees, and other documents issued by the council.101 During his week in office, the councillor elected had to inspect documents before sending them for the king’s signature. The weekly judge also had to block the issuing of any provision or decree that was poorly-written or inadequately processed, that had erasures or had been amended, that had mala ordinata102 or other defects, or that did not state the honorarium paid to the clerk of the chamber. He had the authority to tear up documents that were not totally satisfactory and to take any further measures he deemed necessary in this regard. The name of the councillor elected as weekly judge had to be announced in advance, so the sentry of the chamber kept a schedule to inform the members of the chamber (at the first hour of Saturday morning), of the identity of the weekly judge for the coming week. This kept all members duly informed and ensured that the sentry would give the correct information when asked.103 In light of the weekly judge’s obligation to prevent imperfect documents from being sent for the king’s signature, it was ordered104 ‘… that daily, before the hour of the Audiencias in the council, the weekly judges of each chamber shall present the provisions sent for issuing, read them, and compare them to the decrees and acts whence they emanate and, finding them in good order, sign them in the assigned place, as is their duty as recentlynamed members, on the right side, and once more at the bottom, to show that they have no reservations, and so indicate to the other ministers that they can sign with no doubt whatsoever …’.105 On this matter, a decree of 2 January 1747 ordered that: 101  Moranchel Pocaterra, El Consejo de Indias y su relación con la vía reservada en el reinado de Felipe V, p. 186. 102  Rafael Altamira, Voces jurídicas y técnicas de diversos oficios que usaron la legislación indiana y sus comentadores y que no tienen correspondencia en el Diccionario de la Academia, in: Bulletin Hispanique, 43, 1941, pp. 193–264 at 200: ‘Ordinata. – No existe este sustantivo en el Diccionario, y no puedo afirmar si cabe suponerle alguna relación con el adjetivo “ordinativo”, que significa “perteneciente a la ordenación o arreglo de una cosa”. Es evidente que la expresión usada por la ley (“o con mala ordinata”) supone que todas las disposiciones que pasaban por el Consejo debían ir ordinatas, y que si iban “bien ordinatas”, el Semanero las pasaría. De ahí surge una verosímil hipótesis de que ordinata pudiera ser “numerada” o “señalada” con el número de orden que le correspondiese. Pero necesitaríamos una prueba directa, de que, hoy por hoy, carezco. En todo caso, sería bien que el Diccionario registrase la denominación legal o burocrática’. 103  Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, Título Segundo, Ley IX, p. 153r. 104  Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, Título Tercero, Ley Cuarta, p. 152v. 105  Martínez Salazar, Colección de memorias, y noticias del gobierno general, y del político del Consejo, p. 212.



The Royal and Supreme Council of the Indies491 … all provisions issued in the royal offices shall, without exception, observe all those solemnities that pertain to legitimate letters [and that] the officials through whose ministries they pass [shall not] fail in their duties. The weekly ministers shall exercise special care in examining and recognizing the same so that no excesses occur in the council’s agreements.106

(dd) Juntas and commissions The councillors were also obliged to participate in collegial bodies, some of them permanent, others temporary. The 17th century witnessed a proliferation of juntas or commissions, that usually included a councillor who re­ presented the Council of the Indies.107 In his decree of 16 March 1630, and Chapter 79 of the Ordenanzas del Consejo Real de las Indias (1636), ­Philip IV ordered the councillors to attend the juntas to which they were called, even if the orders had not been sent to the presidents of the tribunals on which they served. The method for summoning members to ordinary bodies and notifying their superiors was clearly established, but in the case of temporary organs set up by the king to deal with specific issues, orders were sent to the president of the council involved or, in his absence, to the councillor with the highest authority or greatest seniority. The king ordered that the Council of the Indies had to obey and execute all such instructions, and that the ministers who were assigned to juntas had to notify their president when a meeting coincided with the day and hour at which they were supposed to be devoted to council business.108 (ee) The Grand Junta of Competencies Philip IV’s early years on the throne and the Conde-Duque de Olivares’ accession to power led to the introduction of a series of reforms intended to regenerate the king’s authority. In relation to the councils, Olivares faced two obstacles: difficulty in controlling those collegial organs that mounted resistance to his efforts, sustained by the weight of tradition and the corporative orientation of their ministers; and the sheer number of those bodies that reflected the territorial diversity of the Catholic monarchy and the jurisdictional 106  AGI, Indiferente General, 886; Cf. Novísima Recopilación de las Leyes de España, Libro IV, Título XII, Ley X. See Francisco Antonio de Elizondo, Practica universal forense de los tribunales de España y de las Indias, vol. 6, Madrid, 1794, p. 69. 107  Moranchel Pocaterra, El Consejo de Indias y su relación con la vía reservada en el reinado de Felipe V, p. 189. 108  Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, Título Tercero, Ley XI, p. 153v.

492

L. López Valencia

privileges essential to a status-based (estamental) corporative society. In response, Philip IV’s personal representative (valido) strove to fill key posts on councils with men he could trust. Indeed, instead of breaking the traditional polysynodial constitutional system, he carried it to an extreme by multiplying the number of juntas, primarily as a way to organize and regulate the many conflicts of competencies that plagued the diverse tribunals, but also to enhance the power of the king over the councils. Before Philip IV’s time, jurisdictional conflicts were resolved by forming ad-hoc juntas with members of the tribunals involved under the supreme and final supervision of the Chamber of Government of the Royal Council, in accordance with the Ordenanza of 1608. This gave the tribunal of Castile precedence over all other councils. However, those councils predictably opposed this condition and refused to recognize Castile’s supremacy. The solution to these problems consisted in forming a Junta of Competencies that bore the adjective Grand. This junta was characterized by stability and equal participation of all tribunals. It was directly dependent on the monarch and its decisions were supported by the force of precedent.109 These features of the Junta Grande de Competencias placed it at the apex of the polysynodial system, for the decree of 16 November 1625 stipulated (1) that it would include one councillor from each council and, (2) granted it the status of Supremo. This meant that its resolutions were binding and executory in nature, and that no supplication or recourse against them was permitted. All judicial decisions made by the tribunal were also binding since they were ‘settled and issued for all those of the same nature in all circumstances, and cannot be judged or challenged in any other way …’110 In addition to secular justice, this junta also had jurisdiction over issues of spiritual justice, for it resolved conflicts between the councils that heard ecclesiastical matters, thus sustaining royal supremacy over the resolution of jurisdictional conflicts, with no need to consult with Rome.111 A decree of 12 November 1628, and Chapter 78 of the Ordenanzas del Consejo de las Indias of 1636, ordered the president or governor of each council to ensure that the councillor assigned to this junta attended its meetings. If for any reason, he was unable to do so, another councillor had to be named in his place, and yet another if this one were to excuse himself.112 109  Its

decisions became obligatory dispositions for analogous cases. Beatriz Cárceles De Gea, Derecho y Comercio en la Corona de Castilla en el siglo XVII, Madrid, 2013, p. 29. 111  Luis María García-Badell Arias, La Junta Grande de Competencias de Felipe IV: Rey, Nobleza y Consejos en la Monarquía Católica, in: Cuadernos de Historia del Derecho, 2004, pp. 105–136 at 109–110. 112  Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, Título Tercero, Ley X, p. 153v. 110  Cf.



The Royal and Supreme Council of the Indies493

(ff) The General Board of Commerce and Currency The 17th century saw almost all states create governmental institutions called boards, councils or chambers of commerce, though they dealt with questions of industry and manufacturing in addition to strictly mercantile activities. In Spain, the first steps in forming such boards took place in the early years of the Conde-Duque de Olivares’ term of office, though they were not formally institutionalized until 1679,113 under Charles II. At first, the board’s members were ministers of the Council of the Indies, but as the House of Bourbon implemented its mercantilist policies, Philip V introduced changes. Up to then, the board had included five ministers from the Council of the Indies. Though this number varied, the Junta de Comercio always had at least one minister from that council.114 In 1730, the board was re-structured again, granted powers related to currency, and renamed the Junta General de Comercio y Moneda. (gg) The Council of the Holy Crusades On 12 October 1590 Philip II ordered that one of the ministers of the Council of the Indies had to attend the meetings of the Council of the Holy Crusades as an adviser and councillor. He would be selected by the monarch and had to be present at that council whenever necessary. He enjoyed the right to speak and vote on the resolutions of business ‘concerning and dependent on the Holy Crusades in the Indies’.115 (hh) The Fiscal In 1524, the fiscal was renamed promotor-fiscal. This official had two associates, called fiscal-solicitors. The first to hold this office was the lawyer Francisco de Prado, a member of the Council of Castile, but he was replaced in 1526 by Francisco Ceynos, who performed the dual role of fiscal and relator (rapporteur), offices that were later separated and entrusted to two men because the fiscal’s workload increased considerably with the creation of the important Audiencia of Mexico. The reforms of 1713 retained the position of 113  Pere Molas i Ribalta, Las Juntas de Comercio en la Europa Moderna, in: Anuario de Historia del Derecho Español, 66, 1996, pp. 497–518 at 497, 515. 114  Pere Molas i Ribalta, La Junta General de Comercio y Moneda. La Institución y los hombres, in: Hispania. Revista de Historia, 38, Número Extraordinario, 9, 1978, pp. 1–38 at 5, 22–23. 115  Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, Título Tercero, Ley XXI, p. 155v.

494

L. López Valencia

fiscal general (prosecutor) and instituted that of attorney general (abogado general). The fiscal participated in the Chamber of Government, while the two attorney generals served in the Chamber of Justice, but all three were required to attend the council’s plenary sessions. Shortly afterwards, the 1717 reforms added a second fiscal; one would now serve for New Spain and the other for Peru. They received the same salary as councillors, though their posts were of lower status than that of the most-recently appointed councillor. It was not uncommon for fiscales to be appointed to seats on the council. The fiscal’s functions were to defend royal jurisdiction, royal patronage in the Indies, the royal treasury, and the Indians. As to his role in judicial matters, he participated, amongst other things, in deciding cases. On questions of government, his reports were mandatory. If they were not accepted by the council, his point of view had to be mentioned.116 The Chamber of the Indies was responsible for conveying the names of candidates proposed to occupy the position of fiscal, but during times when it did not function, this task fell to the council. In either case, the names of three candidates (a terna) were sent to the monarch for consideration. After 1726, orders stipulated that the terna had to be accompanied by a summary of each candidate’s merits. The king analyzed the candidates and chose the one he judged most suited.117 The responsibilities of the office of the fiscal included: … defending, or requesting what is relevant to our jurisdiction, patrimony and royal treasury, taking particular care to inquire and ascertain how that which we provide and order for the good government of the Indies is carried out and obeyed, to ensure that this is observed and performed, and to give notice to our council when this is not done, especially whatever favors the Indians, whose protection and defense, as poor and miserable persons, is entrusted to me, and with great vigilance and care always request and solicit that which benefits them.118

(ii) The Grand Chancellor of the Indies In three decrees issued in 1623, and Chapter 89 of the Ordenanzas of 1636, King Philip IV established that for the … service, authority and veneration of our royal seals, and good collection of the business of the Indies, our council and its chanceries shall have seals with our royal coat-of-arms to seal dispatches, and these shall be guarded by trustworthy persons. We order and establish that there shall be a Grand Chancellor of the In116  Muro

Orejón, Lecciones de historia del derecho hispano-indiano, p. 155. Pocaterra, El Consejo de Indias y su relación con la vía reservada en el reinado de Felipe V, pp. 205–206. 118  Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, Título Quinto, Ley I, p. 158v. 117  Moranchel



The Royal and Supreme Council of the Indies495 dies, as there is today, responsible for our royal seals, and that the lieutenants of the chancery shall review and register all our letters, provisions and dispatches, which shall be sealed, registered and sent. The men appointed shall be those who attend the chanceries, and registrars. In our said council, as in the chanceries of the Indies, they shall be lieutenants appointed by [the chancellor’s] will for the time he considers suitable [and] they shall be honourable men, good reliable Christians worthy of the ministry they shall occupy. The Grand Chancellor, and his lieutenants, shall guard the honours and pre-eminence granted by us, as well as that which is indicated and ordered by their titles.119

The first Grand Chancellor of the Indies was Mercurino de Gattinara. Though not a councillor, he had participated actively in the Council of the Indies from its inception, and continued to do so until 1528, when he was officially named Grand Chancellor of that council. As such, he was responsible for keeping the royal seal of the council, though he delegated this task to one of his lieutenants. The Audiencias of the Indies also had chancery lieutenants entrusted with guarding their respective royal seals.120 Gattinara was succeeded by Diego de los Cobos in 1532, who held the position until his death in 1575, though he never performed the duties involved personally. The office remained vacant until 19 July 1623, when Philip IV named Olivares as Grand Chancellor of the Indies. Finally, on 27 July 1623, the monarch made this title ‘hereditary’.121 For a long period the position was subsequently linked to the Duchy of Alba.122 (jj) The Secretariats of Council The secretariat of the Council of the Indies was one of its most important offices; indeed, it is no exaggeration to consider it the epicentre of council activities.123 During the first stage of the life of the Council of the Indies, the secretariat was formally entrusted to men of great importance, and the position of secretary was reserved for the emperor’s most trusted collaborators. In 1524, there was only one secretary, but in 1596, a second was added when the position of clerk of government was abolished. A proposal to assign one secretary to government and the other to justice was never adopted, so the division of functions between the two secretaries was not based on subject matter, but territory: one dealt with the business of New Spain, the other 119  Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, Título Cuarto, Ley I, p. 156v–157r. 120  Muro Orejón, Lecciones de historia del derecho hispano-indiano, p. 154. 121  Schäfer, El Consejo Real y Supremo de las Indias, pp. 66, 217. 122  Muro Orejón, Lecciones de historia del derecho hispano-indiano, p. 154. 123  Gildas Bernard, Le Secrétariat d’État et le Conseil espagnol des Indes, 1700– 1808, Paris, 1972, p. 87.

496

L. López Valencia

with that of Peru. The latter also resolved issues in which the territorial question was not differentiated. Business involving New Spain came from the Audiencias of Mexico, Guadalajara, Santo Domingo, Guatemala, the Philippines, the Antilles and Venezuela, while the Audiencias of Lima, Quito, Charcas, Panama, the Nuevo Reino de Granada, Chile and Buenos Aires channelled their business to the secretary for Peru. The secretaries’ most important functions included counter-signing the laws of the Indies once the monarch had signed them, and hearing and resolving business of state, government, war, the treasury and grace in both the ecclesiastical and civil domains. Finally, they were responsible for keeping the registries and collections of royal decrees (cedularios) of the Royal and Supreme Council of the Indies.124 The first secretary was Francisco de los Cobos. He began to serve in this capacity when the Junta de Indias pertained to the Council of Castile. However, because he constantly travelled with the king, the post was actually administered by his main assistant, Juan de Sámano, from 1520 onwards, when Charles V decided that De los Cobos would travel with him to Germany.125 Sámano retained his position until 1558, first as ‘interim’ secretary, later with full title granted in 1539. Occasionally, he was replaced by Ochoa de Luyando, his oficial mayor, who acted as interim secretary before becoming the titleholder in 1558–1559.126 Juan Vázquez de Molina served as interim secretary127 from 1537 to 1555.128 On 24 August 1559, Francisco Eraso was named to this post upon Sámano’s death, which occurred on 19 January of that year. The other secretary was Ochoa de Luyando. Francisco Eraso was succeeded by his son, Antonio Eraso, on 6 March 1571, who held the title until he died in 1586.129 Next in line was Juan de Ibarra, a special favorite of King Philip II, who was entrusted with the most delicate cases. He sometimes worked behind the council’s back since he could consult the king directly on matters that in reality fell to the councillors or president.130 The Ordenanzas of 1571, as we have seen, endowed the Council of the Indies with a powerful president, but the secretary was not included. He was 124  Muro

Orejón, Lecciones de historia del derecho hispano-indiano, pp. 155–156. Gómez, Secretarios y escribanos en el gobierno de las Indias: El caso de Juan de Sámano, in: Revista de Historia del Derecho, 43, 2012, pp. 30–63 at 40. 126  Schäfer, El Consejo Real y Supremo de las Indias, pp. 65, 353. 127  Schäfer, El Consejo Real y Supremo de las Indias, p. 353. 128  León Pinelo, Tablas cronológicas de los Reales Consejos Supremo y de la Cámara de las Indias Occidentales, p. 15. 129  Schäfer, El Consejo Real y Supremo de las Indias, p. 353. 130  Schäfer, El Consejo Real y Supremo de las Indias, p. 124. 125  Margarita



The Royal and Supreme Council of the Indies497

not to attend meetings unless the monarch so ordered, or the councillors requested his presence. He could not ‘speak, vote or determine what matters would be dealt with at council’, nor was he allowed to ‘be party to the consultations that the council might hold with [the king]’.131 This typified the experience of Antonio Eraso who, as we saw above, served as secretary in the year that Juan de Ovando was named president of the council; a position he held until his death in September 1575. It is highly likely that Juan de Ibarra, appointed secretary after 1586, worked under privileged conditions involving direct consultation with the king because of his predecessor’s (Juan de Ovando) strong influence, but especially because he was a ‘favorite’ of both Philip II and his son, Philip III. Evidence of his preponderant role in the Council of the Indies is that he asked to be divested of his position as secretary on 20 November 1604, the same day he was named as councillor. Also around that time, De Ibarra proposed creating the Chamber of the Indies within the council and raising the number of secretariats from one to four: two for the council and two for the chamber.132 They would not be involved in judicial matters, which remained the responsibility of the clerk of the Chamber of Justice.133 All these changes were included in the Instrucción of 1604 which, without directly reforming the Ordenanzas of 1571, increased the importance of the position of the secretary. However, as we shall see below, when the Chamber of the Indies was dissolved in 1609, the number of secretariats decreased to two. In 1691, Charles II continued these two secretariats, but divided their jurisdiction territorially. This was included in the reform of 1701, which conserved one secretariat for Peru and the Province of Tierra Firme, and one for New Spain and the Island of Barlovento. In 1713, another secretary was added temporarily so that each chamber had its own secretary; but a decree of 1715 annulled that reform and returned to the formula of two secretaries.134 131  Ordenanzas Reales del Consejo de las Indias dadas en el Pardo en 1571, p. XIIv. 132  Alfonso García-Gallo, El Consejo y los Secretarios en el gobierno de las Indias, in: Alfonso García-Gallo, Los orígenes españoles en las instituciones americanas, Madrid, 1987, pp. 777–809 at 785. 133  Instrucción de 1604, capítulo 2: ‘It is my will that of these four secretaries, two shall serve and attend said Council of the Indies, the other two the chamber, on the days and during the hours that the president and councillors of said councils meet. And that two secretaries of the council shall be present for all business that is heard, of whatever nature, except when disputes … are heard or voted upon, when their presence is not necessary. And their seat on the council shall be after that of the fiscal of the council, who shall precede all four secretaries’. Cited in García-Gallo, El Consejo y los Secretarios en el gobierno de las Indias’, p. 786, fn. 31b. 134  Moranchel Pocaterra, El Consejo de Indias y su relación con la vía reservada en el reinado de Felipe V, pp. 212–213.

498

L. López Valencia

(kk) The Chamber of the Indies The main function of the Chamber of the Indies, created in August 1600,135 was to propose candidates for positions in the Indies for the king’s consideration, a competence previously exercised by the Chamber of Government of the council itself. However, because of the diffuse nature of the councillors’ responsibilities regarding such proposals, it was judged convenient to create a specific organ to exercise that function. The chamber consisted of the president and three councillors proposed by the chamber but assigned directly by the king. The secretaries were the same ones that served the Council of the Indies, who met on Mondays and Wednesdays. The chamber’s other functions involved matters related to royal grace (mercedes); that is, encomiendas (royal grants, attached to a geographical area, of tribute or personal service from the local population),136 and rewards for service, amongst other things; as well as affairs related to the royal favour, including the establishment of family estates (mayorazgos), and recognizing illegitimate children through royal rescript.137 But the life of this chamber was marked by instability. It was dissolved in 1609 to expedite the handling of cases, ‘eliminate emulations and differences, and authorize seats on the council, [as it] seems more convenient to the king [Philip III] that matters of grace and government be consulted and settled by the same [officials] due to their interconnection and interdependence’. Another order stipulated reducing the secretariats of the council and chamber from four to two and making the Board of War responsible henceforth for filling positions in the army and navy, a competence previously exercised by the chamber. Also, the Board of War would distribute, keep accounts and justify outlays for the fleets in the route to the Indies (Carrera de las Indias). The chamber was re-established in 1644, only to be shut down again in 1704, its competences being transferred to the council to facilitate the processing of business and reduce costs. But the chamber was restored in April 1716, this time with a president, two noble judges and one jurist, only to be dissolved the following year and its affairs channelled through the vía reservada, especially matters concerning the treasury, war, commerce, navigation to the Indies, and employment opportunities, as mentioned earlier. Reestablished once more in 1721, it included a president, four councillors – two 135  Lorenzo Arrazola, Enciclopedia española de derecho y administración o Nuevo teatro universal de la legislación de España e Indias, vol. VII, Madrid, 1853, p. 208, ‘Cámara de Indias’. 136  J. H. Elliot, Imperial Spain, 1469–1716, London, 2002, p. 70. 137  Dougnac, Manual de historia del derecho indiano, p. 86.



The Royal and Supreme Council of the Indies499

jurists, two noblemen – and two secretaries. But these appointments included no additional remuneration above what was received as a council member.138 The chamber was eliminated definitively, together with the Royal and Supreme Council of the Indies, on 24 March 1834.139 (ll) The Chamber Clerk’s Office The offices for clerks assigned to the chamber were newly-created positions that occupied ‘a long series of chapters (§ 67–99)’140 in the Ordenanzas of 1571. Two offices were established: ‘… before one, all issues related to government, mercy and grace, that do not involve litigation between parties shall pass and be attended; the other shall deal with matters and disputes of justice of all kinds’.141 In 1597, the clerk’s office that processed matters involving government and grace was suppressed and subordinated to the secretariat led by Juan de Ibarra; while the one associated with the Chamber of Justice was entrusted to Pedro de Ledesma, who was named secretary. It was responsible for endorsing the titles of the governors and corregidores (municipal governmental and judicial officials); two functions that formally corresponded to government and grace. But the Council of the Indies had a whole series of other functionaries. A key official for judicial matters was the clerk of the council’s142 Chamber of Justice,143 who was involved in hearing cases and other matters concerning justice, and for elaborating and endorsing dispatches144 in accordance with the council’s protocols. Assisting him was a senior officer (oficial mayor), who was also a royal clerk, ‘skilled, sufficient and approved by council’, and 138  Rafael Antúnez, Compendio histórico del Consejo de Cámara de Indias, AGI, Indiferente General, 886. 139  Arrazola, Enciclopedia española de derecho y administración o Nuevo teatro universal de la legislación de España e Indias, pp. 208–209, ‘Cámara de Indias’. 140  Schäfer, El Consejo Real y Supremo de las Indias, p. 142. 141  Ordenanzas Reales del Consejo de las Indias dadas en el Pardo en 1571, p. XIIv, Chap. 67. 142  Título Diez, Libro Segundo, Recopilación de Leyes de los Reinos de las Indias, only indicates that the clerk attended the Chamber of the Council of the Indies, but does not specify that he attended the Chamber of Justice, as is done by the aforementioned Ley primera, título Segundo, Libro Segundo, p. 177. 143  Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, Título Segundo, p. 132. 144  ‘Despacho. s. m. Expediente, resolución y determinación’: Eugenio Tapia, Febrero novísimo ó librería de jueces, abogados y escribanos: refundida, ordenada bajo nuevo método, y adicionada con un tratado del juicio criminal, y algunos otros, vols. 7–8, Valencia, 1837, p. 78.

500

L. López Valencia

obliged to swear an oath of secrecy.145 His functions included personally reading petitions of justice at council and endorsing decrees. If he was un­ able to attend (due to illness or some other legitimate cause) cases were read by his senior officer and dispatches endorsed at the Chamber of the Council of Castile on the orders of the president of the Council of the Indies. The clerk’s other tasks were to order dispatches of justice and send to the secretaries the ones that required the king’s signature; maintain a ledger that ­recorded all pecuniary sanctions to be paid to the Royal Chamber – countersigned by a councillor – and any sanctions that might be ordered, after verifying that the respective executory order was affixed.146 (mm) Relatores (rapporteurs) The main role of the relatores was to ‘summarize, extract and “relate” the contents of the business and disputes heard by the Council of the Indies, in both the Chambers of Justice and Government’.147 León Pinelo’s Tablas show that originally there was only one relator, but that by 1566 there were two.148 This change was reaffirmed in the Ordenanzas of 1571, which state that the council had two relatores.149 The Tablas mention three relatores in 1587,150 as do the Ordenanzas of 1681.151 (nn) Attorney, advocate of the poor and marshals To define the procurators of the councils, Martínez de Salazar turned to the Siete Partidas (Law 1, Title 5, Section 3ª). The Código alfonsí referred to these officials as personeros because at trial they represented ‘other parties [and] are constituted as the interested parties (dueños) and principal directors of disputes; hence, they must be intelligent, honourable, jurisprudential, attentive, and observant, so that the litigants’ arguments and rights are not ob145  Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, título Segundo, Ley primera, p. 132. 146  Cf. Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, título Segundo, Ley tercera a la decimosexta, pp. 177v–179v. 147  Moranchel Pocaterra, El Consejo de Indias y su relación con la vía reservada en el reinado de Felipe V, p. 244. 148  León Pinelo, Tablas cronológicas de los Reales Consejos Supremo y de la Cámara de las Indias Occidentales, pp. 19–20. 149  Ordenanzas Reales del Consejo de las Indias dadas en el Pardo en 1571, p. Iv. 150  León Pinelo, Tablas cronológicas de los Reales Consejos Supremo y de la Cámara de las Indias Occidentales, p. 21. 151  Ordenanzas del Consejo real de las Indias: nuevamente recopiladas y por el rey don Felipe quarto N. S. para su govierno, establecidas año de MDCXXXVI.



The Royal and Supreme Council of the Indies501

scured by carelessness, omission or negligence …’.152 Attorneys were trained in law and responsible for ‘the technical aspect of litigation, advising the parties or their procurators and drafting court documents, written arguments (allegationes) and legal opinions (informaciones) in service of their interests …’. Other officials in the monarchy’s supreme tribunals were the ‘advocates of the poor’. They were entrusted with protecting the rights of the poor in their disputes. From the reign of the Catholic Kings, attorneys residing in places that had no advocate of the poor had to intercede free of charge for people without resources: anyone ‘who possesses less than 3.000 Mrs. [maravedíes] of funds can litigate as a poor [person]’.153 The volume of business heard by the Council of the Indies increased enormously as Spain extended its dominion over Spanish America. By the late 1530s, its staff was insufficient, especially for administering justice, so accessory offices were created. In 1536, an attorney and advocate of the poor were named to assist litigants with scarce resources, but they earned very little for their services. One attorney, Ramiro de Soto, earned 5,000 maravedíes annually, while the advocate Sebastián Rodríguez pocketed only 2,000. Most of their income simply resulted from the huge number of suits in which they acted. By that time, the number of attorneys and advocates had also multiplied greatly because it was impossible to litigate without them. Thus, their income depended on the agreements they negotiated with their clients and the fees established by law.154 The officials who enforced the council’s decisions and orders were marshals (aguaciles), who worked with subordinate deputies (alguaciles menores). In the Castilian tradition, those offices were hereditary, as the Siete Partidas establish.155 Before the Council of the Indies was assigned its own marshal, these functions were performed by marshals of the court. But in Chapter 102 of the Ordenanzas of 1571, the monarch ordered that the council should have its own marshal and the marshals of the Royal House and Court would maintain the obligation to enforce the mandates of the Council of the Indies.156 152  Martínez Salazar, Colección de memorias, y noticias del gobierno general, y político del Consejo, pp. 721–722. 153  De Las Heras Santos, La Justicia penal de los Austrias en la Corona de Castilla, p. 168. 154  Schäfer, El Consejo Real y Supremo de las Indias, pp. 75–76. 155  Las Siete Partidas , 2a Partida, Título IX, Ley XX, p. 429: ‘Ley XX: Que es lo que ha de hacer el que hace la Justicia en la Corte del Rey. – Alguacil llaman en arábigo, aquel que ha de prender, y de justiciar los hombres en la Corte del Rey, por su mandado, o de los Jueces que juzgan los pleitos …’. 156  Ordenanzas Reales del Consejo de las Indias dadas en el Pardo en 1571, p. XVIII.

502

L. López Valencia

(oo) Functionaries entrusted with the Council’s finances Schäfer notes that the crown received income from the Indies in two forms: metals and precious stones, and revenue from payments for rights, licenses and fines imposed by the Casa de Contratación and the council.157 The position of director of royal revenue (receptoría de rentas reales) for the Indies was included when the Council of the Indies was founded, but Philip II did not fill that post on the council’s payroll until 1567.158 The receptor de penas de cámara supervised others: the treasurer, the depositary, the debt collector, the payment officer, and accountants: ‘two at first, but later four, responsible for book-keeping and auditing the accounts of the royal treasuries of the Indies … the authorization of these functionaries is indispensable in all dispositions of an economic nature’.159 (pp) Other officials The council also had officials with a more scholarly remit, including the senior chronicler and senior cosmographer of the Indies, and the mathematics professor. For ecclesiastical matters, the council had its own chaplain, who celebrated mass daily to implore the Holy Spirit to provide ‘illumination and wisdom’. Also, an agent in Rome brought ecclesiastical affairs from the Americas to Rome for the Pope’s consideration, independently of the Spanish Ambassador to the Holy See, who was responsible only for relations between Spain and the Pope. Finally, we must mention a group of subaltern officials: four porteros (door attendants), the prison warden, and the crier (pregonero), among others.160 (c) Functions The council was entrusted with governing the Indies and had full jurisdiction over those dominions. In the 16th century, its powers were understood to encompass diverse fields,161 but in practice it was primarily an organ of 157  Schäfer,

El Consejo Real y Supremo de las Indias, p. 112. Pocaterra, El Consejo de Indias y su relación con la vía reservada en el reinado de Felipe V, p. 236. 159  Muro Orejón, Lecciones de historia del derecho Hispano-indiano, p. 156. 160  Muro Orejón, Lecciones de historia del derecho Hispano-indiano, pp. 156– 157. 161  According to García-Gallo, from the Early Middle Ages a distinction was made between what was essentially a function of justice and what was preponderantly administrative and economic in nature, but ‘the distinction [between] government and justice was consolidated when distinct treatment was officially given to 158  Moranchel



The Royal and Supreme Council of the Indies503

government.162 Its status as royal and supreme bestowed the right to address the king directly and impeded acts by all other councils of the Catholic monarchy. This policy was designed to harmonize diverse political and administrative forces. Thus, Philip III ordered that no decree or dispatch issued by any other council was to be obeyed if not first approved by the Council of the Indies. Throughout the 16th and 17th centuries, this circumstance, compounded by the always blurred delimitation of competencies and irregular procedures performed with the king’s blessing, often immersed the council in problems and saturated it with an enormous daily administrative workload. Indeed, some authors affirm that the Council of the Indies was ‘an essentially administrative instance (fiscal disputes, visits and residencies, Indian repartimientos)163 that only exceptionally heard appeals in disputes involving the monarch, criminal causes remitted by the Casa de Contratación, and suits between private parties’.164 As a supreme tribunal, the Council of the Indies issued decisions without having to solicit the king’s opinion, for it enjoyed full autonomy to issue judgments. We should note that from the beginning, Spain’s monarchs had granted this Supreme Indian Tribunal a jurisdiction that was meant to be exceptional. Their goal was to prevent judicial matters from impeding the councillors from fulfilling their primary responsibility, which was to govern the New World. This is reflected clearly in the New Laws of 1542.165 Therefore, and because its field of action included issues of transcendental imporeach one. This occurred in 1551, when the instructions that Charles V gave the council during his absence state that “in matters of disputes of justice [you] shall do what is accustomed when I am present. [You] shall do the same in the business of government” (Cedulario de Encinas I, 24). In 1595, the king ordered the Viceroys and audiencias to mention matters of justice, the treasury and war separately in the reports they sent (Cedulario de Encinas, II, 314–315; Col. De docum. De Indias, XVIII, 279)’: Alfonso García-Gallo, La división de las competencias administrativas en España e Indias en la Edad Moderna, in: García-Gallo, Los orígenes españoles de las instituciones americanas, pp. 763–764. 162  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, p. 359. 163  I.e. distribution of encomiendas. 164  Santos M Coronas González, El Consejo garante de la justicia y legalidad en Indias: multas, correcciones y apercibimientos a ministros de la Audiencia de Lima y del gobierno del virrey del Perú (1761–1771), in: Actas del IX Congreso de Historia del Derecho Indiano, Madrid, 1991, pp. 367–381 at 368. 165  ‘Item, so that said president and those of our Council of the Indies may be unburdened [and devoted to] hearing matters of the government of those areas, we order and establish that they abstain insofar as possible from hearing the business of private individuals, because for this effect we have provided and determined that which corresponds to the aforementioned audiencias, and the business to be heard there …’ See Leyes y ordenanzas por S. M. para la gobernación de las Indias, y buen

504

L. López Valencia

tance, the requirements for approaching the tribunal tightly circumscribed the council’s judicial competence. This helps explains why from 1776 to 1788, ‘the proportion of cases of government [versus] justice processed by the Council and Chamber of the Indies is 9.82 to 1; i. e., for each file concerning justice [it] processed almost ten on government’.166 While the council’s acts as the supreme jurisdictional organ of the Indies may seem exiguous compared to its governmental functions, its importance as the highest and fullest tribunal of justice cannot be underestimated, for when acting as a court it did represent the voice of law and justice. The monarch took its resolutions into account and usually respected them, even though at times they ran counter to his interests. For these reasons, the Council of the Indies was ‘one of the most polished exponents of what has come to be called the jurisdictional monarchy’, especially because of its capacity as ‘custodian of the king’s conscience in relation to the justice of its decisions’.167 This also helps explain why the Chamber of Justice was staffed exclusively by trained jurists and, on occasion, the fiscal. The judgments it issued were definitive and not subject to appeal. Indeed, as mentioned above, not even the king himself intervened in matters determined by the council; thus, the council became the highest organ for administering justice in the Indies. (aa) Government of the West Indies The council’s main function, then, was to hear and, in due course, resolve, all matters concerning the Indies. Hence, its attributions spanned ‘the grand sectors of the activity of power’, including, especially, the spheres of justice, the state, war, grace, conscience, the treasury, and government.168 But we must clarify that in the 16th and 17th centuries, the council’s supreme status (which gave it direct access to the monarch and impeded other organs of the monarchy from interfering in matters reserved to it) was constrained by practices which allowed matters that pertained exclusively to one council to be heard by others, or by permanent – or even ad hoc – juntas. This reflects, once again, the lack of clarity in the delimitation of competences of individual councils but, above all, the irregular procedures that went on with the king’s license.169 tratamiento y conservación de los indios, in: Joaquín García Icazbalceta, Colección de documentos para la historia de México, Book II, Mexico City, 1886, p. 208. 166  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, p. 359. 167  García Pérez, El Consejo de Indias en la Corte de Felipe V, pp. 189–190. 168  Antonio Manuel Hespanha, Vísperas del Leviatán, Instituciones y poder político (Portugal, siglo XVII), Madrid, 1989, p. 218.



The Royal and Supreme Council of the Indies505

The matters that pertained theoretically and legally to the Council of the Indies included important legislative attributes. Though the king held a monopoly over legislative power, the council had the power to draft all types of legal dispositions, propose them to the king, and consult with him on them. This prerogative was granted in the Ordenanzas of 1636 and confirmed in the Recopilación de Leyes de los Reinos de las Indias (Ley II, Título Segundo, Libro Segundo).170 Another important function was to hear and resolve all issues involving the Indians and ensure their protection. This had an important religious dimension. Catholicism was a basic element that moulded the Indian monarchy (Monarquía indiana), and concern with the missionary enterprise was evident from the very beginning of Spanish domination in America, reflected in both the fervent desire to Christianize Indian groups and, perhaps even more, in many royal laws. Indeed, the constitution of the Indian monarchy was eminently Catholic in nature, so it had to establish a political and legal structure that would expedite the realization of that goal.171 (bb) Administration of Indian justice The political constitution of the West Indies was clearly of a traditional character172 typical of contemporary legal culture,173 including judicial pro169  Barrios, Consolidación de la Polisinodia hispánica y Administración Indiana, p. 128 and fn. 34 on the same page. 170  ‘It is our mercy and will that said council have supreme jurisdiction in all our West Indies, [already] discovered, and that may be discovered, and over the business that may result from, or depend on them, and that for the good administration of justice it order and consult our Laws, Pragmatics, Ordenanzas and Provisions, general and particular, that may be convenient for the good of those provinces: and also see and examine, for our approval and enactment, any Ordenanzas, Constitutions and other Statutes that the Prelates, Chapters, and Convents of the Religions, and our Viceroys, Audiencias, Councils and other communities of the Indies may elaborate, and in all other kingdoms and seigneuries of the things and business of the Indies and their dependents, our said councils shall be obeyed and followed, as are those of the Council of Castile, and our other councils in what pertains to them, and that their provisions and commandments shall always and in all regards be observed and obeyed in all areas and in these kingdoms, and in those, by any and all persons’. Recopilación de Leyes de los Reinos de las Indias, Libro Segundo, Título Segundo, Ley ii, p. 133v. 171  García-Gallo, La Constitución política de las Indias españolas, pp. 492–497. 172  Carlos Garriga, Orden jurídico y poder político en el Antiguo Régimen, in: Carlos Garriga/Marta Lorente, Cádiz, 1812. La constitución jurisdiccional, Madrid, 2007, pp. 43–72 at 53. 173  Cf. Alejandro Agüero, Las categorías básicas de la cultura jurisdiccional, in: Marta Lorente Sariñena (ed.), De justicia de jueces a justicia de leyes: hacia la España de 1870, Madrid, 2007, pp. 21–58 at 24.

506

L. López Valencia

tection of rights.174 In this regard, and despite their highly heterogeneous nature, communities in the Spanish Indies can be divided into two basic categories labelled, at the time, the república de españoles and the república de indios (republic of Spaniards and republic of Indians). In the former we find, broadly-speaking, that the juridical-political conceptions of Castile were reproduced, though those dominions gradually began to form their own laws, which came to be known as derecho indiano (Indian law). Obviously, the republic of Indians was much less homogeneous than that of the Spaniards, since it included all the diverse cultures that peopled the American territories dominated by the Spanish Crown. The policies implemented with respect to these ethnic groups were designed to ‘reduce’ them; i. e., settle them in towns for a sedentary existence. This measure facilitated the conversion of their leaders (caciques), who then used their influence to convert their peoples to Catholicism. However, this actually shrunk the caciques’ authority because they were seen as political instruments of the king that no longer posed a threat to his sovereignty.175 The government of the West Indies can also be divided into two broad groups: authorities who lived on the Iberian Peninsula, and those who resided in America. The principal authorities in the metropolis included, obviously, the king, the Royal and Supreme Council of the Indies, and the Casa de Contratación, while those in New Spain were the Viceroy and the Reales Audiencias, the local supreme tribunals that were the pillars of the politicalterritorial organization of the so-called New World.176 And as we have seen, the Council of the Indies had two secretariats, one responsible for matters concerning New Spain that included the Audiencias of Santo Domingo, Mexico, Guatemala, Guadalajara, and Manila,177 the other based in Peru. Clearly, the functions of government and justice were interrelated and mixed at all levels of New Spain’s institutional organization; not only in the ordinary tribunals, but also because many special tribunals acted simultaneously as organs of government, administration and justice in their respective territories. In this complex governmental apparatus, the administration of justice at the provincial or local level was handled by governors, the alcaldes mayores and corregidores, though in the most remote areas of northern New 174  Garriga,

Orden jurídico y poder político en el Antiguo Régimen, p. 68. La Constitución política de las Indias españolas, pp. 505–512. 176  Rafael Diego-Fernández, De las Reales Audiencias Indianas, in: Los caminos de la Justicia en México, 1810–2010, México City, 2010, pp. 3–30 at 22. 177  Rafael Diego-Fernández, Reflexiones en torno al funcionamiento del aparato de Gobierno de la Monarquía Hispana a partir del estudio de caso de la Audiencia de Nueva Galicia, in: Salvador Cárdenas Gutiérrez/Juan Pablo Pampillo Baliño (eds.), Historia del Derecho. Obra Jurídica Enciclopédica en Homenaje a la Escuela Libre de Derecho en su Primer Centenario, México City, 2012, pp. 99–131 at 102. 175  García-Gallo,



The Royal and Supreme Council of the Indies507

Spain those functions fell to the highest Spanish authority present, often a religious or military figure as, for example, in northern garrisons (presidios) and missions. In general, the first instance of justice for the society of New Spain was an alcalde mayor, corregidor, or indigenous governor, though Indians could also approach the Juzgado General de Naturales (General Tribunal of Indigenous Peoples). The higher instances for ordinary, special and privative matters were the Audiencias, while the supreme instance, as we know, was the Council of the Indies.178 Its status as a supreme tribunal179 meant that it had the power to hear all matters concerning the Indies. On this point, Solórzano y Pereira commented that: Although this Supreme Council should strive to abstain, insofar as possible, from hearing disputes between parties and leave their resolution to the Reales Audiencias that operate under their government, as their Ordenanzas stipulate … Still these, and many other related decrees, concede it privatively, and inhibit the other councils, alcaldes de corte and all other judges, and tribunals of these kingdoms and seigneuries of Spain, from all business that may arise there concerning matters of the Indies in all instances, and it is ordered to remit them, through accusation, or complaint, or as appeal, or through ordinary process, or executive, or any other manner and instance through which they may have been introduced in said tribunals.180

The Council of the Indies’ jurisdiction also authorized it to hear directly matters concerning encomiendas that involved tribute payments greater than one thousand ducats, though it should be noted that in practice those cases were heard by its reales audiencias. It was only when the case reached the point of pronouncing judgment that the file was sent to the council to issue the decision. In relation to its judicial competence as a second instance tribunal of justice, the council heard appeals brought against judgments pronounced in criminal and civil matters involving the Casa de Contratación, and reviewed its judgments when they imposed the death penalty or corporal punishment. Exceptionally, it heard complaints called second supplications in, for example, certain criminal causes. As the supreme tribunal, the Council of the Indies also heard cases involving ‘notorious injustice’ (injusticia notoria), a concept created in the 18th century and used often in the Indies. This allowed litigants to challenge a judgment on the grounds that it contravened the express terms of law.181 178  María del Refugio González/Teresa Lozano, La administración de justicia, in: Woodrow Borah (ed.), El gobierno provincial en la Nueva España, 1570–1787, México City, 2002, pp. 83–116 at 78–80. 179  To understand the judicial competence of the Royal Council of the Indies, see Capítulo 17, Libro 5, of Solórzano y Pereira, Política Indiana, Book II, p. 407 ff. 180  Solórzano y Pereira, Política Indiana, Book II, p. 408. 181  García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, p. 397.

508

L. López Valencia

It is clear that the Council of the Indies’ attributes spanned all areas of temporal government, including its four principal branches: government, justice, war, and the treasury. It also heard matters of spiritual government, which were of no small importance, because of the king’s prerogatives of royal patronage. Thus, it is understandable that in ecclesiastical matters, the Council of the Indies heard recursos de fuerza (clerical appeals from a church court to a secular court) derived from suits involving religion in the Indies, even though such issues would normally have been the responsibility of the nuncio papal (the Pope’s personal representative) or some other ecclesiastical judge. (d) The final phase The Royal and Supreme Council of the Indies functioned without interruption until 1809, though it lost competences under the Bourbon dynasty that were assigned to the Secretariats of State. In that year, its existence became intermittent as it was closed, only to be re-established in 1810. In 1812, the Courts of Cadiz suppressed it, but in 1814 Ferdinand VII annulled all measures issued by those courts and revived the council. It ceased to function during the three years of the Liberal period (1820–1823), and was finally, and definitively, eliminated in 1834. Conclusions The Royal and Supreme Council of the Indies – like all councils in the polysynodial Spanish system – was subject only to the monarch’s authority. Hence, within its area of competence it was the apex of the hierarchy of the Spanish State; the supreme instance that heard all matters concerning the branches of government of the Indies, especially those related to justice. This was characteristic of the monarchy’s entire jurisdictional machinery,182 whose traditional constitution established that God had granted sovereignty to the kings to impart justice and give to each subject what corresponded to them by law. For this reason, forming a legally-educated group within the nobility was deemed indispensable, and the noble blood of an elite group of jurists from a narrow aristocracy permeated the highest levels of bureaucracy.183 182  Benjamín González Alonso, Notas sobre la sociedad, la Monarquía y las Instituciones de Castilla en tiempos de Diego de Covarrubias, in: Inmaculada Pérez Martín/Margarita Becedas González (eds.), Diego de Covarrubias y Leyva. El humanista y sus libros, Salamanca, 2012, pp. 33–48 at 40. 183  Anderson, Lineages of the Absolutist State, p. 66.



The Royal and Supreme Council of the Indies509

As a result of its status as supreme and royal, but above all because its judicial decisions were issued exclusively by trained jurists appointed as councillors, the Council of the Indies (the supreme tribunal) was indeed the voice of law and justice; it addressed the key affairs that the monarch could not ignore without being accused of tyranny. But it is important to understand that the kings of Castile gradually began to exercise ever broader legislative powers and to delegate responsibilities for their own convenience. Indeed, their broad sovereignty led them to see themselves as being exempt from pre-existing laws and their sanctions184 and to justify their use of doctrines developed by medieval jurists associated with the well-known citation from the Digest Princeps legibus solutus est,185 especially the tenet: Quod principi placuit, legis habet vigorem.186 Royal policies and these interpretations based on Justinianic law as it related to the monarch’s legislative prerogatives and authority to delegate, cemented the monarch’s pre-eminence over and above the law, eventually leaving it unquestioned. Indeed, when the king knew that he was about to act illegitimately, he expressly announced, through certain formulas, that he was about to implement or order an act that was contrary to law.187 The justification was that the king’s power was ordained by God and no one else, and so he was accountable only to God, and only before Him would he have to justify, and accept responsibility for, his acts. This absolutism resulted in the divinization of the monarch, but did not preclude efforts to impose limits on his absolute power.188 The king’s privi184  In this regard, Gaspar de Villarroel observed that: ‘It is the shared view of most theologians in the world, founded upon authorities, and rights, that sovereign princes, who can make laws on their own, must obey them in good conscience, and that they sin when they do not: though they are not subject to the sanctions they impose’: Gaspar de Villarroel, Govierno eclesiastico-pacífico y union de los dos cuchi­ llos Pontificio y Regio, Book II, Madrid, 1738, p. 91. 185  D. 1, 3, 31. Ulpianus libro 13 ad legem Iuliam et Papiam. Princeps legibus solutus est: Augusta autem licet legibus soluta non est, principes tamen eadem illi privilegia tribuunt, quae ipsi habent: ‘The prince is not bound by the laws; And though his consort is bound by them, nevertheless, princes give their consorts the same privileges as they have themselves’. 186  D. 1, 4, 1. Ulpianus libro primo institutionum. pr. Quod principi placuit, legis habet vigorem: utpote cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem conferat: ‘What the prince wills has the force of law. This is because the populace commits to him and into him its own entire authority and power, doing this by the lex regia which is passed anent his authority’. 187  For example, ‘the formula ex certa scientia, which indicates that the king was conscious that said act or order of government was contrary to the laws, or the formulas motu proprio, “of my royal, absolute power” or other analogous ones, [which] indicate that the king imposed his will above the laws, non obstante aliqua lex’: Francisco Tomás y Valiente, Manual del derecho español, 4th ed., Madrid, 2004, p. 286. 188  Tomás y Valiente, Manual del derecho español, p. 286.

510

L. López Valencia

leged position did not, however, extend to his officials, unless they were identified with the person of the king, as in the case of the viceroys and councils. These boasted of having attained the status of the monarch’s alter egos, as was evident in the case of the Council of Castile, which was considered in this way at an early stage in relation to the administration of justice.189 All other royal officials had to subject their acts to pre-existing laws, though in practice royal absolutism strongly fostered discretion in their actions. One clear example was the broad sphere of judicial discretion;190 though this was not seen or considered as such because the principle of arbitrium iudicis was circumscribed by a juridical framework that, obviously, was not limited to the legal domain. The 16th century jurist Castillo de Bobadilla cautioned that in cases not foreseen in the law, canons or doctrine, the matter needed to be resolved through arbitration, considering both equity and law and, above all, in accordance with the good conscience of judges.191 The Council of the Indies was the supreme judicial instance in the territories it governed, which were so immense that Solórzano y Pereira did not hesitate to call them the New World.192 But below the supreme level, the real juridical-political foundation of the states in Spanish America was the institution of the real audiencia, an organ that held a monopoly over law and justice in the Indies by governing in conjunction with the Viceroy. The audiencias dealt with all matters involving law because they received, had custody over, interpreted, and applied the laws drafted on the Iberian Peninsula for its overseas kingdoms; while their judges had the power to elaborate law in America. In this sense, they exercised competences both legislative and judicial in nature; sharing the former with the Viceroy, or performing them on their own in his absence. Referring explicitly to the Royal Council of the Indies, Solórzano y Pereyra states that the audiencias functioned as true councils,193 and this largely explains why they were the true political units that formed the basis of the formation of the states in Spanish America.194

189  Miguel Ángel Morales Payán, La Justicia penal en la Almería de la primera mitad del siglo XIX, Almería, 1998, p. 19. 190  Tomás y Valiente, Manual del derecho español, p. 287. 191  José Sánchez-Arcilla Bernal, ¿Arbitrariedad o arbitrio?, in: José Sánchez Arcilla Bernal (ed.), El arbitrio judicial en el Antiguo Régimen, Madrid, 2012, pp. 9–46 at 25 ff. 192  Solórzano y Pereyra, Política Indiana, Book I, p. 8. 193  Diego-Fernández, De las Reales Audiencias Indianas, p. 25. 194  Rafael Diego-Fernández, Una mirada comparativa sobre las Reales Audiencias Indianas, in: Óscar Mazín Gómez (ed.), México en el mundo hispánico, vol. 2, Zamora, Michoacán, 2000, pp. 517–553 at 528–529.



The Royal and Supreme Council of the Indies511

Bibliography Agüero, Alejandro, ‘Las categorías básicas de la cultura jurisdiccional’, in: Lorente Sariñena, Marta, De justicia de jueces a justicia de leyes: hacia la España de 1870, Madrid, 2007, 21–58. Altamira, Rafael, ‘Voces jurídicas y técnicas de diversos oficios que usaron la legislación indiana y sus comentadores y que no tienen correspondencia en el Diccionario de la Academia’, Bulletin Hispanique, Vol. 43(3–4), 1941, 193–264. Anderson, Perry, El Estado Absolutista, México, Siglo XXI, Coyoacán, 1985 (translation of Perry Anderson, Lineages of the Absolutist State, London, 1979). Antúnez, Rafael, ‘Compendio histórico del Consejo de Cámara de Indias’, Archivo General de Indias, Indiferente General, 886 (Manuscript). Arrazola, Lorenzo, Enciclopedia española de derecho y administración o Nuevo tea­ tro universal de la legislación de España e Indias, Vol. VII, Madrid, 1853. Barrios Pintado, Feliciano, España 1808. El gobierno de la Monarquía, Madrid, 2009. Barrios, Feliciano (ed.), El gobierno de un mundo. Virreinatos y Audiencias en la América Hispánica, Cuenca, 2004. Barrios, Feliciano, ‘Consolidación de la Polisinodia hispánica y Administración Indiana’, in: Barrios, Feliciano, (ed.) El gobierno de un mundo. Virreinatos y Audiencias en la América Hispánica, Cuenca, 2004, 119–134. Bermúdez Aznar, Agustín, ‘El oficio de relator en el Consejo de Indias’, in: Derechos, instituciones y procesos históricos: XIV Congreso del Instituto Internacional de Derecho Indiano, Vol. I, 429–456. Bernard, Gildas, Le Secrétariat d’État et le Conseil espagnol des Indes, 1700–1808, Paris, 1972. Burkholder, Mark A., ‘The Council of the Indies in the Late Eighteenth Century: A New Perspective’, The Hispanic American Historical Review, Vol. 56(3), August 1976, 404–423. Cárceles de Gea, Beatriz, Derecho y Comercio en la Corona de Castilla en el siglo XVII, Madrid, 2013. Carlos III, Instrucción que S. M. manda formar para el arreglo de la exacción y cobranza de las Condenaciones y Multas impuestas por el Supremo Consejo y Cámara de Indias, y de los demás caudales aplicados a este fondo en virtud de Reales Resoluciones, Madrid, 1786. Consejo de Indias, Ordenanzas del Consejo real de las Indias: nuevamente recopiladas y por el rey don Felipe quarto N. S. para su govierno, establecidas año de MDCXXXVI, Madrid, 1681. Consejo de Indias, Ordenanzas del Consejo real de las Indias: nuevamente recopiladas y por el rey don Felipe quarto N. S. para su govierno, establecidas año de MDCXXXVI, Madrid, 1747.

512

L. López Valencia

Cordero Torres, José María, El Consejo de Estado, su trayectoria y perspectivas en España, Madrid, 1944. Coronas González, Santos M., ‘El Consejo garante de la justicia y legalidad en Indias: multas, correcciones y apercibimientos a ministros de la Audiencia de Lima y del gobierno del virrey del Perú (1761–1771)’, in: Actas del IX Congreso de Historia del Derecho Indiano, Madrid, 1991, 367–381. De las Heras Santos, José Luis, La Justicia penal de los Austrias en la Corona de Castilla, Salamanca, 1991. Desdevises du Dézert, Georges, ‘Les institutions de l’Espagne au XVIII siécle’, Revue, Hispanique, Vol. LXX, 157–158, Paris, 1927, 1–304 and 305–556. Diego-Fernández, Rafael, ‘De las Reales Audiencias Indianas’, in: Los caminos de la Justicia en México, 1810–2010, Bicentenario Independencia Centenario Revolu­ ción, Mexico City, 2010, 3–30. Diego-Fernández, Rafael, ‘La visita al Consejo de Indias de Juan de Ovando y la Nueva España’, Revista Chilena de Historia del Derecho, Vol. I, 2010, 445–457. Diego-Fernández, Rafael, ‘Reflexiones en torno al funcionamiento del aparato de Gobierno de la Monarquía Hispana a partir del estudio de caso de la Audiencia de Nueva Galicia’, in: Cárdenas Gutiérrez, Salvador/Pampillo Baliño, Juan Pablo (eds.), Historia del Derecho. Obra Jurídica Enciclopédica en Homenaje a la Escuela Libre de Derecho en su Primer Centenario, Mexico City, 2012, pp. 99–131. Diego-Fernández, Rafael, ‘Una mirada comparativa sobre las Reales Audiencias Indianas’, in: Mazín, Óscar (ed.), México en el mundo hispánico, Vol. 2, Zamora/ Michoacán, 2000, 517–553. Dios, Salustiano de, ‘Ordenanzas del Consejo Real de Castilla (1385–1490)’, Historia. Instituciones. Documentos, 7, 1980, 269–320. Domínguez Nafría, Juan Carlos, ‘Carlos V y los orígenes de la Polisinodia hispánica’, in: Belenguer Cebrià, Ernest (ed.), De la unión de coronas al Imperio de Carlos V, Congreso internacional, Barcelona 21–23 de febrero de 2000, Vol. 1, Barcelona, 2001, 497–531. Dougnac Rodríguez, Antonio. Manual de Historia del Derecho Indiano, Mexico City, 1994. Eissa-Barroso, F. A., The Spanish Monarchy and the Creation of the Viceroyalty of New Granada (1717–1739). The Politics of Early Bourbon Reform in Spain and Spanish America, Leiden, 2016. Elizondo, Francisco Antonio de, Practica universal forense de los tribunales de España y de las Indias, Vol. 6, Madrid, 1794. Escriche, Joaquín, Diccionario razonado de legislación y jurisprudencia, ed. by Juan B. Guim, Paris, 1863. Escudero, José Antonio, ‘El Gobierno Central de las Indias: El Consejo y la Secretaría del Despacho’, in: Barrios Pintado, Feliciano (ed.), El gobierno de un mundo: virreinatos y audiencias en la América hispánica, Cuenca, 2004, 95–118.



The Royal and Supreme Council of the Indies513

Espinosa, Aurelio, The Empire of the Cities: Emperor Charles V, the Comunero Revolt, and the Transformation of the Spanish System, Leiden, 2009. Felipe II, Ordenanzas Reales del Consejo de las Indias dadas en el Pardo el 24 de septiembre de 1571, Madrid, 1585. Fernández Albaladejo, Pablo, Fragmentos de Monarquía. Trabajos de historia política, Madrid, 1992. Ferrer del Río, Antonio, Obras originales del Conde de Floridablanca, y escritos referentes a su persona, Madrid, 1867. García Icazbalceta, Joaquín, Colección de documentos para la historia de México, Vol. II, México City, 1886. García Pérez, Rafael D., ‘El Consejo de Indias en la Corte de Felipe V. Lógica Jurídica y Lógica Política en el Gobierno de América’, in: Barrios Pintado, Feliciano (ed.), El gobierno de un mundo: virreinatos y audiencias en la América hispánica, Cuenca, 2004, 167–202. García Pérez, Rafael D., El Consejo de Indias durante los reinados de Carlos III y Carlos IV., Pamplona, 1998. García-Badell Arias, Luis María, ‘La Junta Grande de Competencias de Felipe IV: Rey, nobleza y Consejos en la Monarquía Católica’, Cuadernos de Historia del Derecho, Madrid, 2004, 105–136. García-Gallo, Alfonso, ‘El Consejo y los Secretarios de Estado en el gobierno de las Indias en los siglos XVI y XVII’, Revista Chilena de Historia del Derecho, 11, 1985, 329–353. García-Gallo, Alfonso, ‘El Consejo y los Secretarios en el gobierno de las Indias en los siglos XVI y XVII’, in: Los orígenes españoles en las instituciones americanas, Madrid, 1987, 777–809. García-Gallo, Alfonso, ‘La Constitución política de las Indias españolas’, in: Estudios de Historia del Derecho Indiano, Madrid, 1974, 489–514. García-Gallo, Alfonso, ‘La división de las competencias administrativas en España e Indias en la Edad Moderna’, in: Los orígenes españoles de las instituciones americanas, Madrid, 1987. Garriga, Carlos, ‘Orden jurídico y poder político en el Antiguo Régimen’, in: Garriga, Carlos/Lorente, Marta, Cádiz, 1812. La constitución jurisdiccional, Madrid, 2007, 43–72. Gómez, Margarita, ‘Instrucciones para el gobierno del Presidente o Gobernador del Consejo de Indias’, Historia. Instituciones. Documentos, 31, 2004, 287–300. Gómez, Margarita, ‘Secretarios y escribanos en el gobierno de las Indias: El caso de Juan de Sámano’, Revista de historia del derecho, 43, June 2012, 30–63. González Alonso, Benjamín, ‘Notas sobre la sociedad, la Monarquía y las Instituciones de Castilla en tiempos de Diego de Covarrubias’, in: Pérez Martín, Inmaculada/Becedas González, Margarita (eds.), Diego de Covarrubias y Leyva. El humanista y sus libros, Salamanca, 2012, 33–48.

514

L. López Valencia

González, María del Refugio/Lozano, Teresa, ‘La administración de justicia’, in: Borah, Woodrow (ed.), El gobierno provincial en la Nueva España, 1570–1787, Mexico City, 2002, 83–116. Hespanha, Antonio Manuel, Vísperas del Leviatán, Instituciones y poder político (Portugal, siglo XVII), Madrid, 1989. Las Siete Partidas del muy noble Rey Don Alfonso el Sabio, Glosadas por el Lic. Gregorio López, Vol. I, Madrid, 1843. Latasa, Pilar, review of: Rafael D. García Pérez, El Consejo de Indias durante los reinados de Carlos III y Carlos IV, Pamplona, 1998, Revista de Indias, 220, 2000, 767–769. León Pinelo, Antonio de, Tablas cronológicas de los Reales Consejos Supremo y de la Cámara de las Indias Occidentales, 2nd ed., Madrid, 1892. Macanaz, Melchor de, ‘Explicación jurídica e histórica de la consulta que hizo el Real Consejo de Castilla al rey N. S’, in: Seminario erudito que comprehende varias obras inéditas, críticas, morales, instructivas, políticas, históricas, satíricas y jocosas de nuestros mejores autores y modernos, Vol. IX, Madrid, 1788. Martínez Salazar, Antonio, Colección de memorias y noticias del gobierno General, Político del Consejo: Lo que observa en el despacho de los Negocios, que le competen: los que corresponden á cada una de sus Salas: Regalías, Preeminencias, y Autoridad de este Supremo Tribunal, y las pertenecientes á la Sala de Señores Alcaldes de Casa, y Corte, Madrid, 1764. Mateu y Sanz, Lorenzo, Tractatus de re criminali siue controuersiarum vsufrequentium in causis criminalibus: cum earum decisionibus, tam in aula Suprema ac hispana criminum, quam in summo Senatu novi orbis, Lyon, 1676. Miranda, José, Las ideas y las Instituciones políticas mexicanas, Part 1: 1521–1820, Mexico City, 1978. Molas i Ribalta, Pere, ‘La Junta General de Comercio y Moneda. La Institución y los hombres’, Hispania. Revista de Historia, Vol. 38(9), 1978, 1–38. Molas i Ribalta, Pere, ‘Las Juntas de Comercio en la Europa Moderna’, in: Anuario de Historia del Derecho Español, Madrid, 1996, 497–518. Morales Payán, Miguel Ángel, La Justicia penal en la Almería de la primera mitad del siglo XIX, Almería, 1998. Moranchel Pocaterra, Mariana, ‘El deber de consejo y su reflejo institucional en los dominios indianos (siglos XVI–XVIII)’, in: Cuadernos de Historia del Derecho, Vol. Extraordinario, Madrid, 2010, 403–420. Moranchel Pocaterra, Mariana, ‘Las Ordenanzas del Real y Supremo Consejo de Indias de 1636. Primera parte’, in: Cuadernos de Historia del Derecho, 8, Madrid, 2001, 273–379. Moranchel Pocaterra, Mariana, ‘Los libros de condenaciones del Consejo de Indias’, Clío & Crimen, 10, 2013, 207–224. Moranchel Pocaterra, Mariana, El Consejo de Indias y su relación con la vía reservada en el reinado de Felipe V, PhD thesis, Universidad Complutense de Madrid, 2012.



The Royal and Supreme Council of the Indies515

Muro Orejón, Antonio, ‘El Real y Supremo Consejo de Indias’, Anuario de Estudios Americanos, XXVII, 1970, 195–218. Muro Orejón, Antonio, Lecciones de historia del derecho Hispano-indiano, Mexico City, 1989. Navarro García, Luis, (ed.), Historia general de España y América. América en el siglo XVIII: Los primeros Borbones, Vol. XI-1, 2nd ed., Madrid, 1989. Ordenanzas de la Junta de Guerra de Indias. Nuevamente recopiladas por el rey Don Felipe Quarto para su gobierno, establecidas año de MDCXXXVI, Madrid, 1636. Parry, John Horace, The Spanish Seaborne Empire, London, 1977. Ramos Pérez, Demetrio, ‘El problema de la fundación del Consejo de Indias’, Anuario de Estudios Americanos, XXVI, 1969, 385–425. Real Academia de la Historia, Catálogo de la colección Mata Linares, Vol. IV, Ma­ drid, 1972. Real Academia Española, Diccionario de la lengua castellana …, Vol. 2, Madrid, 1729. Recopilación de Leyes de Indias. Mandadas imprimir y publicar por su magestad católica del Rey Don Carlos II, Vol. I, Madrid, 1681. Reglamento y Aranceles Reales para el Comercio Libre de España a Indias de 12 de octubre de 1778, Madrid, 1778. Sánchez Arcilla ‘¿Arbitrariedad o arbitrio?, in: El arbitrio judicial en el Antiguo Régimen, Madrid, 2012, 9–46. Sánchez Bella, Ismael. ‘La “recopilación de las Indias” de León Pinelo’, Revista Chilena de Historia del Derecho, 14, 1991, 49–52. Sánchez Santiago, Antonio, Idea elemental de los tribunales de la Corte en su actual estado y última planta, Vol. II, Madrid, 1787. Schäfer, Ernesto, El Consejo Real y Supremo de las Indias, 2 vols., Sevilla, 1935– 1947. Silva Méndez, Rodrigo, Catálogo Real y Genealógico de España, ascendencias y descendencias de nuestros Católicos Príncipes y Monarcas Supremos, Madrid, 1656. Solórzano y Pereira, Juan de, Política Indiana. Vol. 2, ed. by Gabriel Ramírez, Ma­ drid, 1739. Solórzano y Pereyra, Juan de, Obras varias posthumas del Juan de Solorzano Pereyra: contienen una recopilacion de diversos tratados, memoriales, papeles erudítos, y algunos escritos en causas fiscales, y todos llenos de mucha enseñanza y erudi­ ción. Corregidas y enmendadas en esta edición por el Licenciado Francisco María Vallarna, Madrid, 1776. Tanzi, Héctor José, ‘La Junta de Guerra de Indias’, Revista Chilena de Historia del Derecho, 5, 1969, 81–96. Tapia, Eugenio, Febrero novísimo ó librería de jueces, abogados y escribanos, 7–8: refundida, ordenada bajo nuevo método, y adicionada con un tratado del juicio criminal, y algunos otros, Vols. 7–8, Valencia, 1837.

516

L. López Valencia

Tena Ramírez, Felipe, Leyes fundamentales de México, 1808–2002, Mexico City, 2002. Tomás y Valiente, Francisco, ‘El gobierno de la Monarquía y la administración de los reinos de España del siglo XVII’, in: Obras completas, Vol. V, Madrid, 1997, 3683–3874. Tomás y Valiente, Francisco, Manual del derecho español, 4th ed., Madrid, 2004. Villarroel, Gaspar de, Govierno eclesiastico-pacifico y union de los dos cuchillos Pontificio y Regio, Vol. II, Madrid, 1738.

S. DAUCHY

The Sovereign Council of New France, 1663–1760 The Sovereign Council of New France is the first ‘colonial’ high court of justice created by the French monarchy. It was established in Québec by edict of Louis XIVth in April 1663, the same year the Company of New France was dissolved. In 1627, Cardinal Richelieu had conceded the French territories in North America into the full ownership of a commercial company, the Compagnie de la Nouvelle-France, better known as Company of the Hundred Associates. The Company acquired a monopoly on the trade of fur on the express condition of establishing Catholic settlers, to support the efforts of the Church to convert the Indians and also to organize local administration and justice. Due to financial difficulties and wars against the Iroquois however, the company was unable to fulfill its mandate and therefore transferred its trade monopoly and rights in North America to the community of inhabitants who, in 1645, took charge of the colony.1 On 24 February 1663, the Company was finally disbanded and New France became a royal province. In that perspective, the setting up of a high court of justice in the sparsely populated North American territories under French rule expressed the king’s sovereignty in his overseas colony and asserted France’s position on the international scene. It also fitted into Colbert’s economic plans. The official correspondence and the edict of foundation even give the impression that the creation of the Sovereign Council should primarily be considered as the cornerstone of his mercantilist policy.2 1  Cf. J. F. Bosher, Government and private interests in New France, in: Canadian Public Administration, X/2, 1967, pp. 244–257. 2  On the history of New France, see G. Vattier, Esquisse historique de la colonisation de la province de Québec (1608–1925), Paris, 1928; Cl. de Bonnault, Histoire du Canada français (1534–1763), Paris, 1950; L. Groulx, Histoire du Canada français depuis la découverte, 4th ed., Montréal, 1962; M. Giraud, Histoire du Canada, 4th ed., Paris, 1966; M. Trudel, Initiation à la Nouvelle-France. Histoire et institutions, Montréal, Toronto, 1968; M. Trudel, Histoire de la Nouvelle-France, 4 vols., Montréal, 1983–1997. More recent studies include W. J. Eccles, France in America, East Lansing MI, 1990; J. Mathieu, La Nouvelle-France: les Français en Amérique du Nord, XVI–XVIIIe siècle, 2nd ed., Québec, 2001; G. Havard and C. Vidal, Histoire de l’Amérique française, Paris, 2003; J. Pritchard, In Search of Empire: The French in the Americas, 1670–1730, Cambridge, 2004; R. Lahaise, Nouvelle France, English colonies. L’impossible coexistence (1606–1713), Paris, 2010.

518

S. Dauchy

1. A colonial court modelled on the metropolitan high courts Although not called Parlement, but Conseil souverein (in the same way as the other courts created at the same period by King Louis  XIV in Flanders, in Roussillon, in Alsace and also in Guadeloupe), the court established in the city of Québec had the same general characteristics as the metropolitan high courts of justice. This is confirmed by the edict of foundation of April  1663 which appears as a programmatic document exposing not only the overall organization of the court, but also the political reasons which led the king to transpose the metropolitan judicial system to his overseas colonies.3 In the preamble to the edict of foundation, the king indeed insists that justice is a necessary prerequisite for good administration and government, which depends ‘as much on the compliance with the laws and ordinances as on the strength of our armies’. The court’s organization was largely modelled on the other high courts, although adapted to the local situation and, in particular, to the small number of inhabitants.4 The foundation Act foresaw that the king would appoint five councillors, an Attorney-General and a clerk from a list of candidates proposed by the governor of New France and the bishop of Québec. This is a particularity of the Canadian court and expresses the importance of the Church in New France, in particular the personal influence of François de Laval, first bishop of Québec.5 During the first half of the 17th century, the Church, and above all the Jesuits, had become the largest property owners in New France but also the only organized institution in the colony, whether sacred or secular. They logically considered that the newly created Sovereign Council could become the prime instrument of their evangelization, assimilation and finally their Frenchification policy.6 Controlling the composition of the court appeared therefore essential to maintain their moral, political and even judicial influence in the colony and Mgr Laval used his influential connections in the royal entourage to ensure the Church’s position in the new 3  Edits, ordonnances royaux, déclarations et arrêts du conseil d’Etat du roi concernant le Canada, vol. 1, Québec, 1854, pp. 37–39. See S. Dauchy, Le conseil souverain de Québec. Une institution de l’ancienne France pour le Nouveau Monde, in: Revue du Nord, 97/411, 2015, pp. 513–526. 4  The estimate in M. Trudel, La population du Canada en 1663, Montréal, 1973, is 3,035 French settlers. The first population census dating back to 1666 (at the initiative of Intendant Jean Talon) reported 3,173 inhabitants (of French origin). 5  Bibliographical information is provided by the online Dictionary of Canadian Biography: http://www.biographi.ca/en/index.php. 6  G. F. Stanley, The policy of Francisation as applied to the Indians during the Ancien Régime, in: Revue d’Histoire de l’Amérique française, III/3, 1949, pp. 333– 348.



The Sovereign Council of New France, 1663–1760519

political and institutional landscape.7 In 1662, he requested, and obtained, a personal interview with the king. We can presume that he was consulted by Louis XIV about the idea of creating a high court in New France, and moreover that he succeeded in convincing the king to appoint him, on an equal footing with the governor, as chair of the future court. It was indeed this prelate, rather than the new governor de Mézy, whom the king entrusted with the responsibility of putting into effect in Québec the edict creating the Sovereign Council. Three days after Mézy and Laval disembarked at Québec, on 18 September 1663, the five judges (Louis Rouer de Villeray, Jean Juchereau de la Ferté, Denis-Joseph Ruette d’Auteuil, Charles Legardeur de Tilly and Mathieu Damours de Chauffours), the Attorney-General (Jean Bourdon) and the clerk (Jean-Baptiste Peuvret Demesnu) were appointed for a renewable one-year term ‘conjointly and in agreement’ by the bishop and the governor, and the court was officially established.8 As governor Mézy certainly had not had sufficient time in the three days since his arrival in New France to assess the merits and qualities of those who had been appointed, it is more than likely that all members of the court were faithful loyalists to the bishop. Soon trouble arose between the governor, constantly stressing that he represented the person of the king, and the bishop, about the replacement or confirmation in office of the court’s members, in particular about Attorney-General Bourdon who had been dismissed by the governor. The royal edict establishing the Council gave no guidance as how to cope with such an impasse, and the court only recovered stability in 1665 when a new governor, de Tracy, and the first royal Intendant, Jean Talon, arrived in Québec. The monarch invested the court with the very same competences and prerogatives as the other parliaments. Its mission, as we can read in the royal Edict of 1663, was ‘to judge, with sovereign power and in last instance, all civil and criminal cases according to the laws and ordinances of our realm and in the same way [i. e. according to the same procedural rules] as in our Parliament of Paris’. There was, in other words, no possibility of appeal against its decisions and the Canadian court was in no way placed under another Parliament’s authority. The Sovereign Council acted as court of appeal and was competent to review the civil and criminal judgments of the lower royal courts in Québec, Montréal and Trois-Rivières.9 Finally, the 7  C. Jaenen, The Role of the Church in New France, New York, Montréal, 1976. 8  See also R. Dubois Cahall, The Sovereign Council of New France. A study in Canadian Constitutional History, New York, 1915. 9  The royal Edict of May 1664 created the lower courts, called ‘prévôtés’. The first was established in Québec in 1666. See J. A. Dickinson, Justice et justiciables. La procédure civile à la prévôté de Québec (1667–1759), Québec, 1982; A. Lachance, La Justice criminelle du Roi au Canada au XVIIIe siècle: tribunaux et officiers, Qué-

520

S. Dauchy

Sovereign Council also had the responsibility to enact royal ordinances (with a right of remonstrance) and could promulgate decrees enforceable in the province. Those decrees or regulations concern the fur trade, mining development, navigation on the Saint Lawrence, land distribution and the organization of settlements, the inhabitants’ morality, taxes payable to the church and even quarrels over precedence between officials; in other words, they deal with all aspects of the colony’s administrative, judicial, social, religious and economical organization.10 2. A judicial and legal system adapted to the requirements of local conditions Aware of the local particularities and difficulties, the central authorities in Versailles, often at the request of the inhabitants and officials in North America, and from 1663 also at the request of the Sovereign Council, introduced when necessary further adjustments or even sometimes made innovations. First, the king decided to unify private law by imposing (as the Company of New France had already done previously) the custom of Paris as the only source of law.11 With this decision, the royal authorities tried to prevent conflicts of laws, in particular between settlers who continued to use the customs of the provinces from where they originated. This legal unification was also supposed to facilitate the work of the notaries – during the French period, these were the only professional lawyers in Canada12 – and the enforcement of the contracts they drew up. The Québec court also requested, and bec, 1978. The judgments in civil cases have been published for the period 1666–1673 in: G. Perron, Prévôté de Québec. Vols. 1–3: Registres civils (1666–1673), Québec, 2002. 10  E. Frelon, Les pouvoirs du Conseil souverain de la Nouvelle France dans l’édiction de la norme (1663–1760), Paris, 2003. 11  D. H. Senecal, Histoire de la coutume de Paris en Canada, in: Revue canadienne, 1864, pp. 163–169; B. de Montigny, Histoire du droit canadien, Montréal, 1869; A. Gerin-Lajoie, Introduction de la coutume de Paris au Canada, in: Revue du barreau de la province de Québec, 1941, pp. 61–65; Y. Zoltvany, Esquisse de la coutume de Paris, in: Revue d’Histoire de l’Amérique française, 25/3, 1971, pp. 365–384 and, more recently, J. Dickinson, New France: Law, courts, and the Coutume de Paris, 1608–1760, in: Manitoba Law Journal, 23, 1995, p. 32; D. Gilles, La condition juridique de la femme en Nouvelle-France: essai sur l’application de la Coutume de Paris dans un contexte colonial, Cahiers aixois d’histoire des droits de l’outre-mer français, 11, 2002, pp. 77–125. 12  The first notaries were in the service of the Company and responsible for drafting commercial contracts and property deeds. Progressively, settlers also asked them to draw up wills and marriage contracts or to advise them in dispute settlements. Cf. J.-M. Augustin, Les premiers contrats de mariage à Montréal de 1648 à 1664 et la coutume de Paris, in: La revue juridique Thémis, 30/1, 1996, pp. 1–19.



The Sovereign Council of New France, 1663–1760521

obtained, a ban on solicitors and advocates in the colony, officially to avoid the inhabitants spending all their money and time on futile pleadings. The instructions addressed by Jean-Baptiste Colbert, State-Secretary of Marine in charge of the overseas colonies, to the local authorities repeated the same objectives: ‘the inhabitants are expected to devote all their energy to agriculture, craft or trade and they should not be diverted by legal procedures’. Local courts as well as the Sovereign Council were therefore expected to settle disputes quickly and without delays in order to avoid costs. Whenever possible they were to proceed orally and without procedural formalism. In other words, the central government strongly encouraged them to prefer mediation and conciliation to judicial conflict resolution. Colonial authorities were certainly concerned to avoid legal quibbling (and at that period advocates were considered to be the main source of excessive delays and costs), but the lack of lawyers in the colony and the limited legal knowledge of the first judges were probably other important factors explaining how solicitors and advocates were marginalised. Most of the judges appointed in 1663 and in the following years were experienced administrators who had played a leading role in the colony’s affairs under the rule of the Company of New France. However, they had no legal training and little practice in dispensing justice. The lack of professional lawyers and the will of the royal authorities to control the appointment of the judges are probably also reasons why the principles of venality and heredity did not apply to the councillors of the Sovereign Council of New France. Furthermore, they were not allowed to wear, as did their colleagues of the metropolitan parliaments and sovereign councils, the red robe characteristic of the judges of high courts. According to the dispositions of the edict of foundation of 1663, the Québec court was expected to dispense justice in the same way and according to the same principles as the other high courts of the realm. At the time when New France became a crown colony, Louis XIV had initiated a codification process in order to achieve legal unification and systematisation.13 The codification process moreover fitted into France’s mercantile policy. The government’s new economic and commercial vision, closely linked to the establishment of overseas colonies, was indeed inconsistent with the legal insecurity provoked by a lack of codified statute law and uniform procedural rules. Not surprisingly, Jean-Baptiste Colbert, Controller-General of Finances (1665) and later also Secretary of State of the Navy in charge of the expanding colonial Empire and international trade (1669), was the driving force behind the codification process and also the main architect of its success. 13  Jean-Louis Halpérin, Five Legal Revolutions since the 17th Century: An Analysis of a Global Legal History, Cham, 2014, p. 35 ff., considers codification as ‘a revolution through systematization’.

522

S. Dauchy

The Sovereign Council applied the criminal ordinance of 1670 as soon as it was promulgated. Its provisions have been unanimously acknowledged as being extremely repressive: a secret and written procedure, a lack of rights of defence, the use of judicial torture and cruel punishments. The new code nevertheless achieved significant application. The use of judicial torture to extort confessions was placed under the strict control of the central courts, and sentences to corporal punishments, banishments or galleys had henceforth to be confirmed by the central courts. A recent study of the criminal cases judged by the Sovereign Council of New France confirms that the court applied the legal formalities and penalties imposed by the criminal ordinance.14 The civil ordinance of 1667 was also introduced in the colony but it first had to be adapted to the local situation. The court submitted 47 remonstrances or petitions in order to modify or cancel the provisions of the royal edict. These remonstrances were mainly related to the implications of a lack of lawyers in the colony and to delays, for the ordinance ignored the colonial high courts and thus did not take into consideration the fact that New France was a vast territory and, in terms of communication, weeks away from the metropolitan royal institutions. After the central authorities had granted important modifications to the original text, simplifying in particular the procedural formalities in all the overseas territories, the Sovereign Council could finally enact the ordinance in 1679.15 Most of the delays were left to the judges’ assessment and procedural formalities were reduced, in particular regarding adjournments and enforcement of judicial decisions.16 At first sight, the Sovereign Council of Québec does not seem to be very different from other superior courts in the kingdom, apart from some necessary adaptations due to local particularities (such as extreme climatic conditions, a very extensive territory, and river travel as the only effective means of communication) and the distance between the colony and the centres of royal power. According to the foundation Act and the court’s practice, as 14  E. Wenzel, La justice criminelle en Nouvelle-France (1670–1760): le grand arrangement, Dijon, 2012, p. 21. About the implementation of the criminal ordinance, see also S. Dauchy, Trois procès à cadavre devant le Conseil souverain du Québec (1687–1708). Un exemple d’application de l’ordonnance de 1670 dans les colonies, in: S. Dauchy/V. Demars-Sion (eds.), Juges et criminels. Études en hommage à R. Martinage, Lille, 2001, pp. 37–49. 15  Edits, ordonnances royaux, déclarations et arrêts du conseil d’Etat du roi concernant le Canada, vol. 1, p. 241 ff.: Édit du roi pour l’exécution de l’Ordonnance de 1667, juin 1679. 16  Cf. S. Dauchy, La réponse du Conseil souverain de Québec au problème des délais de procédure (1663–1703), in: C. H. van Rhee (ed.), The Law’s Delay. Essays on Undue Delay in Civil Litigation, Antwerp, 2004, pp. 83–97. See also E. FabreSurveyer, La procédure au Canada jusqu’à 1679, in: Rapport annuel de la Société d’histoire du Canada, 1932, pp. 1–16.



The Sovereign Council of New France, 1663–1760523

revealed by its records, the court also had a composition, prerogatives and competences similar to the metropolitan high courts. Acting as both supreme court for the colony of New France and as a policy-making body, it appears as a transplant of continental judicial and legal organization in the New World. In reality, the situation was different, and the North American court stood, more than any high court in the French realm, under the supervision of Versailles, and so one could even speak of political, economical ‘and’ judicial guardianship of the Crown. 3. A colonial high court under royal guardianship The appointment of a royal intendant – a logical consequence of the new royal policy in the North American territories – marked a turning point in the history of New France. The first intendant of New France, Jean Talon, was appointed in March 1665 and arrived in Québec on 12 September.17 His royal commission imposed him as the backbone of the colony’s political, institutional and economical reorganization. Colbert indeed gave him instruction ‘to decide everything he will consider necessary and useful for the development of the colony’18 and granted the royal intendant ‘of police, justice and finance’ very wide regulatory and judicial powers to fulfill his mission and achieve the objectives he had set out for New France in the name of the king. Although the Edict of Foundation of the Sovereign Council of 1663 does not mention the royal intendant, Talon’s royal commission gave him the right to intervene in the nomination of the members of the Sovereign Council and de facto he became the president of the court, the first magistrate of the colony. In 1675, a royal ordinance formally established the intendant as president of the Sovereign Council and in 1680 he was even given the power to appoint lower court officials. It is likely that Colbert had taken umbrage at the interference, real or exaggerated, by the Church in civil affairs and convinced the king that the bishop as well as the Jesuits should be kept in a state of subordination to the representatives of royal authority in the colony. The conflict had focused on the regulation of alcohol, which had al17  Th. Chapais, The Great Intendant. A Chronicle of Jean Talon in Canada (1665–1672), Toronto, 1914; J.-C. Dubé, Les Intendants de la Nouvelle-France, Montréal, 1984. 18  Complément des ordonnances et jugements des gouverneurs et intendants du Canada, précédé des commissions des dits gouverneurs et intendants et des différents officiers civils et de justice, Québec, 1856, pp. 33–35: ‘faire et ordonner ce qu’il jugera nécessaire et à propos pour le bien du service et ce qui dépendrait de la dite charge d’intendant … et de tout ordonner ainsi que vous verrez être juste et à propos, validant dès à présent comme pour lors …’ (Royal commission of 23 March 1665). Colbert also wrote a long political memorandum (dated 27 March), partly published in Chapais, The Great Intendant, pp. 38–41.

524

S. Dauchy

ready become in the 1650’s one of the main points of tension between the civil and ecclesiastical authorities in New France. The Jesuits and Bishop Laval had called for an outright prohibition on the sale of alcohol to the ‘savages’, mainly for moral reasons and because drunkenness was a major obstacle to the conversion of the indigenous peoples. Not surprisingly one of the first regulations of the Sovereign Council acceded to their demand. The prohibition was even repeated several times between 1663 and 1667, imposing progressively severer punishments.19 However, put under pressure by Intendant Talon, the Council finally legalized the trade of alcohol in 1668. Officially, economic reasons were put forward to justify this turnaround: the Indians preferred to deal with the Dutch who gave them guns and alcohol in exchange for beaver pelts.20 More likely, this reversal expressed the end of the Church’s stranglehold on the Sovereign Council and a strengthening of the civil authorities in the colony. Apart from his judicial impact, Jean Talon developed a very intensive legislative activity, mainly at the expense of the Sovereign Council. The Foundation Act of 1663 had granted large statutory competences to the court (which in particular could pronounce regulatory decisions or arrêts de règlement), but nevertheless safeguarded the king’s right to change, reform or abolish statutes and regulations or impose new ones.21 As first representative of the king, the intendant could overrule the court’s regulations or impose the judges to enact and implement his personal regulatory decisions, in particular in matters relating to public finance management and taxation, economic and social development, settlement and land policy, trade and mining and last but not least policy on the indigenous population. Jean Talon, like his successors, took his orders and instructions directly in Versailles. During the first years of direct rule, the intendant was in regular correspondence with the State-Secretary of Marine,22 and we can observe that Colbert (appointed Secretary of State for Marine affairs in 1669) signed 19  S. Dauchy, Faisons defenses de traitter ny donner aucunes boissons enyvrantes aux sauvages. Politique colonial et conflits de pouvoirs en Nouvelle-France (1657– 1668), in: E. Bousmar/Ph. Desmette/N. Simon (eds.), Légiférer, gouverner et juger. Mélanges d’histoire du droit et des institutions (IXe–XXIe siècle) offerts à Jean-Marie Cauchies à l’occasion de ses 65 ans, Bruxelles, 2016. 20  H. A. Innis, The Fur Trade in Canada. An Introduction to Canadian Economic History, Toronto, 1956. 21  Edits, ordonnances royaux, déclarations et arrêts du conseil d’Etat du roi concernant le Canada, vol. 1, pp. 37–39: ‘changer, réformer et amplifier les dites Loix et ordonnances, d’y déroger, de les abolir et … de faire tels reglements ou statuts que nous verront être plus utiles à notre service et au bien de nos sujets du dit pays’. 22  Centre des Archives d’Outre-mer d’Aix-en-Provence, correspondance ministérielle relative au Canada, série C11A. Cf. A. Des Rosières, Inventaire analytique de la série C11A, Québec, s.d.



The Sovereign Council of New France, 1663–1760525

most replies himself, often expressing explicitly the king’s personal arbitration of the matter in question. Indeed, Louis XIV himself took great interest in Canadian affairs and did not hesitate to impose his views in colonial matters. Progressively, the role of the Sovereign Council (along with the Church’s influence) in the administration of the colony declined. During Jean Talon’s two terms (1665–1668 and 1670–1672) intervention by the court, in particular in economic affairs, shifted to the intendant. In the 1670’s, a refocusing of the Sovereign Council on its judicial prerogatives as an appellate court can clearly be observed. From a procedural point of view, the civil ordinance of 1667 reorganized the means of review of the decisions of the parliaments and sovereign councils, which could not be challenged with an appeal. This royal ordinance ‘for the reformation of Justice’ also imposed on the courts of the Realm the obligation to observe the royal statutes in their decisions. Whenever a judicial decision did not observe the king’s ordinances, edicts and declarations, the Council of State23 could quash it or declare it null and void. These principles are established in the first title of the ordinance (De l’observation des ordonnances), which also forbids any interpretation of royal legislation by the judges. Although the word ‘cassation’ is not used (it appears for the first time in a decree of 1684), the civil ordinance defines for the first time its underlying concept and, more importantly, declares the State Council in Versailles competent to pronounce the decisions of the high courts null and void. The records of the Sovereign Council of New France contain numerous decisions of the State Council. Most of them seem to settle difficulties or disputes that had been submitted directly to the king and his ministers by the Québec judges: they were enacted by the Sovereign Council and thus became legal precedents to be applied to similar cases. Others (to a lesser extent), some of them at the initiative of the intendant, overruled the judgments of the Québec court.

23  Also known as ‘Conseil d’en haut’ (Upper Council), the ‘Conseil d’État’ (Council of State) was the most important of the royal councils for discussion with the king of the affairs of state. Louis XIV entrusted his Council of State (rather than the Parliaments) with the task to prepare the great ordinances codifying the main branches of the law and to ensure their implementation. The Conseil d’Etat privé (Privy Council), a special section of the Council of State, acted as a supreme court, pronouncing judgements on cases from the various sovereign courts of the realm (including the parlements and Sovereign Councils), and provided final judicial review and interpretation of the law (the request for which was called ‘évocation’). Cf. B. Barbiche, Les institutions françaises de la monarchie française à l’époque moderne, Paris, 1999.

526

S. Dauchy

Conclusion The creation of a Sovereign Council in New France was part of King Louis XIV’s political will to bring his North American territories under tight royal control, as well as of Colbert’s broader efforts to reform the administration of New France which had been badly mismanaged by charter companies during the first half of the 17th century. The Québec high court was the cornerstone of the new French colonial policy in North America. It was expected to guarantee a peaceful co-existence between the settlers and native populations, to encourage settlement and to develop the fur trade and economic activities such as agriculture, mining and shipbuilding. Therefore, the Sovereign Council of New France mainly behaved as a legislative body within a centralized framework during the first years of its existence. The councillors were in charge of transposing the state secretary’s recommendations and the intendant’s proposals into compulsory regulations, a function corresponding to their experience as traders, landowners or local administrators. Their judicial activity became more and more important as the number of cases brought before the court continuously grew. Apart from some conflicts with Intendant Jean Talon, the court gained a large degree of autonomy in judicial matters and acted most of the time independently, reinforced by the distance of the colony from metropolitan France and the need to settle conflicts within a short time and at low cost. Although the councillors had little legal training, the court soon earned respect from the litigants, in particular in civil conflict resolution. In 1703, a royal edict issued by King Louis XIV changed the court’s name into Superior Council and increased the number of councillors to twelve. Most of the judges were of French noble lineage and, until the abolition of the court, very few had received legal training. Legal education only became formalized in Canada in the nineteenth century. Montreal’s McGill University opened its English-language civil law faculty in 1848 (and became Canada’s first law school), and the first French Law Faculty was founded in 1852 at the University of Laval in Québec, whose origins date back to the Seminar established by Bishop Laval in 1663 in order to train priests and sustain the evangelization mission of the Church in North America. The French judges nevertheless contributed significantly to the development of the custom of Paris according to the local situation and requirements, laying the foundations of the future Civil Code of Lower Canada.24

24  D. Gilles, Les juristes de la Nouvelle-France face à la Coutume de Paris: histoire d’une adaptation sous influence, in: A. Astaing/Fr. Lormant (eds.), Le juriste et la coutume du Moyen-âge au Code civil, Nancy, 2015, pp. 185–198.



The Sovereign Council of New France, 1663–1760527

The high court lasted until the end of the French period in 1760, when the French Governor surrendered after Montréal was captured by the British troops. France formally ceded Canada to the British with the Treaty of Paris signed on 10 February 1763. Bibliography Augustin, J.-M., ‘Les premiers contrats de mariage à Montréal de 1648 à 1664 et la coutume de Paris’, La revue juridique Thémis, Vol. 30(1), 1996, 1–19. Barbiche, B., Les institutions françaises de la monarchie française à l’époque moderne, Paris, 1999. Bosher, J. F., ‘Government and private interests in New France’, Canadian Public Administration, Vol. X(2), 1967, 244–257. Chapais, Th., Jean Talon, intendant de la Nouvelle-France (1665–1672), Québec, 1904. Chapais, Th., The Great Intendant. A Chronicle of Jean Talon in Canada (1665–1672), Toronto, 1914. Dauchy, S., ‘Trois procès à cadavre devant le Conseil souverain du Québec (1687– 1708). Un exemple d’application de l’ordonnance de 1670 dans les colonies’, in: Dauchy, S./Demars-Sion, V. (eds.), Juges et criminels. Études en hommage à R. Martinage, Lille, 2001, 37–49. Dauchy, S., ‘La réponse du Conseil souverain de Québec au problème des délais de procédure (1663–1703)’, in: Rhee, C. H. van (ed.), The Law’s Delay. Essays on Undue Delay in Civil Litigation, Antwerp, 2004, 83–97. Dauchy, S., ‘Le conseil souverain de Québec. Une institution de l’ancienne France pour le Nouveau Monde’, Revue du Nord, Vol. 97(411), 2015, 513–526. Dauchy, S., ‘Faisons defenses de traitter ny donner aucunes boissons enyvrantes aux sauvages. Politique colonial et conflits de pouvoirs en Nouvelle-France (1657– 1668)’, in: Bousmar, E./Desmette, Ph./Simon, N. (eds.), Légiférer, gouverner et juger. Mélanges d’histoire du droit et des institutions (IXe–XXIe siècle) offerts à Jean-Marie Cauchies à l’occasion de ses 65 ans, Bruxelles, 2016, 373–393. De Bonnault, Cl., Histoire du Canada français (1534–1763), Paris, 1950. De Montigny, B. A. T. , Histoire du droit canadien, Montréal, 1869. Des Rosières, A., Inventaire analytique de la série C11A, Québec, s.d. Dickinson, J. A., Justice et justiciables. La procédure civile à la prévôté de Québec (1667–1759), Les cahiers d’histoire de l’Université Laval 26, Québec,1982. Dickinson, J., ‘New France: Law, Courts, and the Coutume De Paris, 1608–1760’, Manitoba Law Journal, Vol. 23, 1995, 32–54. Du Bois Cahall, R., The Sovereign Council of New France. A study in Canadian constitutional History, New York, 1915.

528

S. Dauchy

Dubé, J.-C., Les Intendants de la Nouvelle-France, Montréal, 1984. Eccles, W. J., France in America, East Lansing MI, 1990. Fabre-Surveyer, E., ‘La procédure au Canada jusqu’à 1679’, Rapport annuel de la Société d’histoire du Canada, 1932, 1–16. Frelon, E., Les pouvoirs du Conseil souverain de la Nouvelle France dans l’édiction de la norme (1663–1760), Paris, 2003. Gerin-Lajoie, A., ‘Introduction de la coutume de Paris au Canada’, Revue du barreau de la province de Québec, 1941, 61–65. Gilles, D., ‘La condition juridique de la femme en Nouvelle-France: essai sur l’application de la Coutume de Paris dans un contexte colonial’, Cahiers aixois d’histoire des droits de l’outre-mer français, Vol. 11, 2002, 77–125. Gilles, D., ‘Les juristes de la Nouvelle-France face à la Coutume de Paris: histoire d’une adaptation sous influence’, in: Astaing, A./Lormant, Fr. (eds.), Le juriste et la coutume du Moyen-âge au Code civil, Nancy, 2015, 185–198. Giraud, M., Histoire du Canada, 4th ed., Paris, 1966. Groulx, L., Histoire du Canada français depuis la découverte, 4th ed., Montréal, 1962. Halpérin, J.-L., Five Legal Revolutions since the 17th Century: An Analysis of a Global Legal History, Cham/New York, 2014. Havard, G./Vidal, C., Histoire de l’Amérique française, Paris, 2003. Innis, H. A., The Fur Trade in Canada. An Introduction to Canadian Economic History, Toronto, 1956. Jaenen, C., The Role of the Church in New France, New York/Montréal, 1976. Lachance, A., La Justice criminelle du Roi au Canada au XVIIIe siècle: tribunaux et officiers, Laval, 1978. Lahaise, R., Nouvelle France, English colonies. L’impossible coexistence (1606– 1713), Paris, 2010. Mathieu, J., La Nouvelle-France: les Français en Amérique du Nord, XVI–XVIIIe siècle, 2nd ed., Québec, 2001. Perron, G., Prévôté de Québec. Registres civils (1666–1673), 3 vols., Québec, 2002. Pritchard, J., In Search of Empire: The French in the Americas, 1670–1730, Cambridge, 2004. Senecal, D. H., ‘Histoire de la coutume de Paris en Canada’, Revue canadienne, 1864, 163–169. Stanley, G. F., ‘The policy of Francisation as applied to the Indians during the Ancien Régime’, Revue d’Histoire de l’Amérique française, Vol. III(3), 1949, 333–348. Trudel, M., Initiation à la Nouvelle-France. Histoire et institutions, Montréal/Toronto, 1968. Trudel, M., La population du Canada en 1663, Montréal, 1973. Trudel, M., Histoire de la Nouvelle-France, 4 vols., Montréal, 1983–1997.



The Sovereign Council of New France, 1663–1760529

Vattier, G., Esquisse historique de la colonisation de la province de Québec (1608– 1925), Paris, 1928. Wenzel, E., La justice criminelle en Nouvelle-France (1670–1760): le grand arrangement, Dijon, 2012. Zoltvany, Y., ‘Esquisse de la coutume de Paris’, Revue d’Histoire de l’Amérique française, Vol. 25(3), 1971, 365–384.

W. H. BRYSON

The General Court of Virginia, 1619–1776 Introduction The General Court of Virginia began with the reorganization of the government of the colony of Virginia in 1619. The court was established not for any political motives to control, or for any financial motives to collect lucrative fines, but it was a part of the tradition of good government. Private disputes are better settled in official courts of law rather than by self-help and vendetta. Therefore, access to the courts is good public policy. From its foundation in 1607 until 1624, Virginia was a private corporation that was created by a succession of royal charters; in its organization, it was similar to an English municipal corporation.1 The first royal charter and the accompanying instructions set up a Council of government, and this Council was given broad and general judicial powers.2 The model for this was the cities and boroughs of medieval England which had their own courts of law for the settlement of local disputes. In 1624, the charter was revoked, and Virginia came under direct royal control, and, thus, after 1624, all of the Virginia courts were continued as royal courts, even though there was never any formal creation of them as such. The law of Virginia was and is the common law of England except as it has been changed by the Virginians after the bringing of the English law to the new colony in 1607. Virginia was founded and settled initially by Englishmen, and they brought their law with them; once established, immigrants from other parts of the world had to accept the settled legal system as the foundation of the law. Of course, many legal and political changes have been made over the course of time.3 At the beginning, the English law was not 1  F. McCarthy, Participatory Government and Communal Property: Two Radical Concepts in the Virginia Charter of 1606, in: University of Richmond Law Review, 29, 1995, pp. 327–380. 2  The early charters of Virginia are printed at W. W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia, from the first session of the Legislature in the year 1619, vol. 1, Richmond, Philadelphia, New York, 1809–1823, pp. 57–113; for the judicial jurisdiction of the Council, note pp. 65, 69–71, 96, 112. 3  W. H. Bryson, Virginia Civil Procedure, Newark N. J., 2005, pp. 2–4 to 2–45; W. H. Bryson, Virginia Law Reports and Records, in: A. Wijffels (ed.), Case Law in

532

W. H. Bryson

applied as strictly as it might have been due to the absence of legally trained lawyers and judges in the infant colony. However, as time went by, properly trained lawyers appeared in Virginia, and the law was better and better understood and applied and recent English developments were frequently copied in Virginia. As the modern idea of the separation of governmental powers of administration, legislation, and judiciary was not any part of the thinking of the seventeenth century, it is necessary to describe generally the central government of Virginia in the first half of the seventeenth century in order to understand the General Court’s position and jurisdiction. The colony of Virginia was subdivided into counties, and the counties were administered by county courts that had judicial, legislative, and administrative powers. The central government was composed of a Governor, who was appointed by the king, a Council of State, who were also appointed by the king, and the House of Burgesses, who were chosen by popular election. The Governor held office during the pleasure of the crown; the Councillors held office during good behavior, which in practice was for life; the Burgesses held office only during the term of the General Assembly to which they were elected. From 1619 to 1643, the legislature of the colony, the General Assembly, was composed of the Governor, the Council, and the Burgesses acting in concert as a unicameral body. In 1643, the General Assembly was divided into a lower house, the House of Burgesses, and an upper house, composed of the Council and the Governor. The Council also acted administratively as the advisor to the Governor, and the Governor and the Council acted judicially as the General Court. Thus legislation after 1643 required passage by both houses of the legislature and approval by the Governor upon the advice of the Council.4 (Acts of the General Assembly could be vetoed by the king in council.) 1. Origin and jurisdiction The General Court of Virginia came into existence in 1619 when the government of the English colony of Virginia was reorganized. Before this time, there are no official records of any court, and the surviving anecdotal evidence is sparse and questionable as to accuracy. From 1619 onwards, the Governor and the members of his Council sat in judicial sessions, which the Making, vol. 1, Berlin, 1997, pp. 99–108; W. H. Bryson, The Prerogative of the Sovereign in Virginia: Royal Law in a Republic, in: Tijdschrift voor rechtsgeschiedenis, 73, 2005, pp. 371–384. 4  P. A. Bruce, Institutional History of Virginia in the Seventeenth Century, vol. 2, New York, 1910, pp. 255–521.



The General Court of Virginia, 1619–1776533

were called the Quarter Court because it first met quarterly each year. By the end of the seventeenth century, however, there were only two sessions a year, in April and October, and the court was thereafter referred to as the General Court. It sat at the capitol, Jamestown until 1700 and then Williamsburg until 1780.5 Although a very few of the judges were properly trained in the law, most were not; being learned in the law was not a prerequisite to appointment. The political duties of these gentlemen were more important than their judicial ones. Thus, the judges of this court had to learn the law on their own and had to judge according to the arguments of the lawyers who appeared before them. In general, they were wealthy and well educated persons who were from the political elite of the colony. In 1736, it was said by a visitor to Virginia that the courts were conducted with ‘dignity and decorum’. In 1774, Lord Dunmore, then the Governor and a member of the General Court and himself a layman, wrote that many of the judges were ‘very incompetent in a number of intricate points which must necessarily come before them to decide upon …’6 The General Court, being composed of the same gentlemen who composed the Council, was the Virginia equivalent in this respect of the European and British royal privy councils. In addition, the General Court of Virginia was the court of general jurisdiction and the court of first instance for the colony. It had original jurisdiction over felonies and piracies, common law and equity cases, and ecclesiastical cases including the probate of wills.7 As there was no specific act that created this court, there was no official definition of its jurisdiction. Even the first legislative definition of its jurisdiction, which was not made until the general revision of the Virginia statutes in 1705, is vague and general, but it is comprehensive and inclusive: And be it further enacted that the said General Court shall take cognizance of and are hereby declared to have full power and lawful authority and jurisdiction to hear and determine all causes, matters, and things whatsoever relating to or concerning any person or persons, ecclesiastic or civil, or to any other persons or things of 5  See generally O. P. Chitwood, Justice in Colonial Virginia, Baltimore, 1905; A. P. Scott, Criminal Law in Colonial Virginia, Chicago, 1930; H. F. Rankin, Criminal Trial Proceedings in the General Court of Virginia, Williamsburg, 1965. 6  H. F. Rankin, The General Court of Virginia, Its Jurisdiction and Personnel, in: Virginia Magazine of History and Biography, 79, 1962, pp. 148, 153. 7  A general idea of the scope of the jurisdiction of this court in the eighteenth century before 1776 can be had from the cases reported in R. T. Barton (ed.), Virginia Colonial Decisions, 2 vols., Boston, 1909, and T. Jefferson, Reports of Cases Determined in the General Court of Virginia from 1730 to 1740 and from 1768 to 1772, Charlottesville, 1829, and from the seventeenth century from its minute books, see H. R. McIlwaine/J. Kukla (eds.), Minutes of the Council and General Court of Colonial Virginia, Richmond, 1979.

534

W. H. Bryson

what nature soever the same shall be, whether the same be brought before them by original process or appeal from any other court or by any other ways or means whatsoever. Provided always that no person shall take original process for the trial of anything in the General Court of less value than ten pounds sterling or two thousand pounds of tobacco on penalty of having such suit dismissed and the plaintiff being nonsuited and paying costs of suit.8

There were only two limitations on its jurisdiction. First, it could not hear cases involving claims for very small amounts.9 Second, although the Governor and Council, i. e. the General Court, were given admiralty jurisdiction in 1660,10 a separate Court of Vice-Admiralty was created in 1698.11 The main purpose of this new court was to enforce the English Navigation Acts,12 which were the source of substantial revenue to the king. Local juries in the General Court were suspiciously lax in this matter; the courts of admiralty did not use juries. Thus, this revenue enforcement was taken from the General Court and given to the Court of Vice-Admiralty with appeals to the Privy Council in London.13 2. Appeals from the County Courts In 1634, Virginia was divided into counties,14 and there was a court for small claims and for misdemeanors for each county. These local County Courts were collegial courts composed of about fifteen to twenty lay magistrates, who were also called justices of the peace; they were similar to the Quarter Sessions in England. An appeal lay from the County Courts to the General Court.15 8  Act of October 1705, Chap. 19, sects. 5, 6, Hening, Statutes at Large, vol. 3, p. 289. 9  E.  g. Act of November 1647, acts 6, 7, Hening, Statutes at Large, vol. 1, pp. 345, 346. 10  Act of March 1659–60, act 12, Hening, Statutes at Large, vol. 1, pp. 537–538. 11  Bruce, Institutional History of Virginia, vol. 1, pp. 702–705; see generally G. Reese (ed.), Proceedings in the Court of Vice-Admiralty of Virginia, 1698–1775, Richmond, 1983. 12  Statute of 12 Charles II, c. 4 (Statutes of the Realm, vol. 5, pp. 181–205); Statute of 14 Charles II, c. 11 (Statutes of the Realm, vol. 5, pp. 393–400); Statute of 15 Charles II, c. 7 (Statutes of the Realm, vol. 5, pp. 449–452). 13  G. A. Washburne, Imperial Control of the Administration of Justice in the Thirteen American Colonies, 1684–1776, New York, 1967, pp. 163–177. 14  Before 1634, the local government of Virginia was not systematically defined, and, thus, the boundaries of the local small claims courts were somewhat irregular. 15  See generally, A. G. Roeber, Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810, Chapel Hill, 1981.



The General Court of Virginia, 1619–1776535

The County Courts still exist, but today they are called General District Courts. They are now presided over by a single judge who is required to be learned in the law. They can no longer admit wills to probate, but, otherwise, their basic judicial powers have not changed since early colonial times. 3. Appeals to the General Assembly Apparently, from its beginning in 1619, the General Assembly, the legislature of Virginia, had judicial sessions. However, because the early records have not survived, very little is known about this court of law. The evidence that dates from the middle of the seventeenth century shows that this court heard only appeals from the General Court, but only in civil cases.16 These appeals were heard by a standing committee of the General Assembly, the Committee for Private Causes. This committee was composed of burgesses and councillors, and this arrangement continued after the legislature became bicameral in 1643. If the petition for an appeal was allowed by the Committee, the case was reheard by the full General Assembly. After 1643, it was the full House of Burgesses that heard the case, since the Council had already heard the case in their judicial sessions as the General Court.17 Because of the loss of most of the records of colonial Virginia, little is known of the cases in this court. However, some fragments of cases have survived, and they shed some light on its operation.18 These appeals ceased in 1679 when the Governor refused to appoint members of the Council to sit on this committee. This refusal was ordered by King Charles II in a deliberate and successful attempt to limit the independence and power of the General Assembly by taking away its judicial powers. It was done over the objections of the Virginians.19 However, ‘it was inher16  See generally Act of March 1643, act 55, Hening, Statutes at Large, vol. 1, p. 272; Act of November 1647, act 6, Hening, Statutes at Large, vol. 1, p. 345; Act of March 1659, act 7, Hening, Statutes at Large, vol. 1, p. 519; Act of March 1662, act 26, Hening, Statutes at Large, vol. 2, p. 65. 17  Bruce, Institutional History of Virginia, vol. 1, pp. 690–696. 18  Hening, Statutes at Large, vol. 1, pp. 405–406, 548–549, vol. 2, pp. 158–162; W. M. Billings, Temple v Gerard, 1667–1668: An Example of Appellate Practices in Colonial Virginia, in: Virginia Magazine of History and Biography, vol. 94, 1986, pp. 88–107; W. M. Billings, The Cases of Fernando and Elizabeth Key: A Note on the Status of Blacks in Seventeenth-Century Virginia, in: William/Mary Quarterly, 3rd series, vol. 30, 1973, pp. 467–474 (the case of Elizabeth Key in 1655–1656). 19  W. M. Billings, A Little Parliament: The General Assembly in the Seventeenth Century, Richmond, 2004, pp. 55–58, 171; J. Kukla, Robert Beverley Assailed: Appellate Jurisdiction and the Problem of Bicameralism in Seventeenth-Century Virginia, in: Virginia Magazine of History and Biography, 88, 1980, pp. 421–429.

536

W. H. Bryson

ent in imperial administration of justice that lower legislature bodies should not exercise judicial functions’.20 It is interesting to note that, at about the same time, the House of Commons of the English Parliament lost any judicial power it might have had21 and also an attempt to have judicial appeals to the Scottish Parliament failed.22 At this period of time, King Charles II and King James II, who reigned successively from 1660 to 1688, were appointing the English judges to sit during their pleasure only and not during good behavior, the latter being a secure appointment; this was an attempt to control the judiciary and to manipulate the course of justice. Where there is an appeal to the legislature, the results of a judicial decision might be controlled by one or another political party in the legislature to the political detriment of the other and/or the king, as well as to the detriment of judicial independence and the rule of law generally. If the politicians were manipulating the courts, the lack of an appeal to a legislative body, which might be in the control of some other political party, would be self-serving and vice versa. It is unclear as to who was doing what and to whom. Judicial independence is served by the separation of the judicial from the executive and legislative powers of the government. But, in Virginia, this was not achieved until 1776. Regardless of politics and governmental policy, large bodies of public representatives are not effective courts of law. They are not chosen for their legal knowledge or expertise, and their great size renders them inefficient and unwieldy. The theory of legislatures is to express the majority opinion of the community not to go against the majority to protect the rights of a single member of the community. In deciding disputes between individuals, courts are more efficient than legislatures. In Virginia, in the early nineteenth century, private bills for divorce became so numerous as to distract the General Assembly from its public duties; this resulted in the Virginia Constitution of 1851 expressly forbidding private legislative acts of divorce.23 20  J. H. Smith, Appeals to the Privy Council from the American Plantations, New York, 1965, p. 79. 21  W. S. Holdsworth, A History of English Law, vol. 1, London, 1956, pp. 362– 365; J. S. Hart, Justice Upon Petition: The House of Lords and the Reformation of Justice, 1621–1675, New York, 1991, p. 260: ‘By 1675 the upper house [of Parliament] really has become … the Supreme Court of Judicature …’; see also the contribution of Prest in this volume. 22  C. Jackson/P. Glennie, Restoration Politics and the Advocates’ Secession, 1674–1676, in: Scottish Historical Review, 91, 2012, pp. 76–105; see also the contributions of Godfrey and Ford in this volume. 23  Virginia Constitution of 1851, Art. 4, sect. 35; this prohibition has been continued in every Virginia constitution since: Virginia Constitution of 1870, Art. 5, sect. 20; Virginia Constitution of 1902, Art. 4, sect. 63; Virginia Constitution of 1971, Art. 4, sect. 14.



The General Court of Virginia, 1619–1776537

4. Appeals to the Privy Council The English Privy Council evolved in the middle ages out of the AngloNorman curia regis, which was the amorphous body of political advisors and consultants to the king. As the royal government became more and more systematic, the Privy Council acquired a judicial as well as a political function, even after the rise of the royal courts and of Parliament.24 After the restoration of the monarchy in 1660, the Privy Council created a standing committee to hear appeals in judicial cases. This committee was called the Committee for Trade, then the Council for Trade and Plantations, and later the Lords Commissioners of Trade and Plantations. It was replaced in 1696 by the Committee for Hearing Appeals from the Plantations.25 In 1679, appeals from the General Court of Virginia were transferred from the General Assembly of Virginia to the judicial standing committee of the Privy Council. It is today generally thought that due process of law requires at least one fair trial and one fair appeal. By making the appeal lie to a court on the other side of the Atlantic Ocean, the right of appeal was made very expensive and this made appeals of cases involving small sums of money impracticable. Between 1679 and 1696, there were only two appeals from Virginia; from 1696 to 1776, there were fifty-four.26 Two of these appeals were of particular political importance. The first was the Pistole Fee Case (1754); the second was Camm v Hansford and Maury v Fredericksville Parish (1763), the Parsons’ Cause. The first case involved a very contentious dispute between the House of Burgesses and the Lieutenant Governor of Virginia over the right of the Governor to collect a fee or tax of one pistole for putting the seal to each royal patent.27 The fundamental issue was the imposition of a new tax without the consent of the people through their elected representatives, the House of Burgess-

24  See generally J. F. Baldwin, The King’s Council in England During the Middle Ages, Oxford, 1913; W. F. Finlason, The Judicial Committee of the Privy Council, London, 1878; A. V. Dicey, The Privy Council, London, 1887; Washburne, Imperial Control of the Administration of Justice. The Court of Star Chamber was a court of law within the Privy Council, but it was abolished in 1641 as a result of its improper use for political oppression. 25  Smith, Appeals to the Privy Council, pp. 64–72. 26  Smith, Appeals to the Privy Council, pp. 73, 78, 80, 668, 669. 27  J. Munro (ed.), Acts of the Privy Council of England, Colonial Series, vol. 4, 1911, pp. 232–235; J. P. Greene, The Case of the Pistole Fee: The Report of a Hearing on the Pistole Fee Dispute Before the Privy Council, June 18, 1754, in: Virginia Magazine of History and Biography, 66, 1958, pp. 399–422.

538

W. H. Bryson

es.28 The Parsons’ Cause arose when a statute was enacted that effectively diminished the established salaries of the rectors of the Virginia churches; these related cases involved the payment of the statutory salaries of the parsons in currency or in tobacco, raising political questions about statute law and vested rights.29 Appeals from Virginia lay to the Privy Council (the king in Council) and not to the House of Lords (the king in Parliament) because Virginia was not in England, nor was there representation in Parliament, but the king of England (later on the king of Great Britain) was the king of Virginia, a dominion separate from the kingdom of England. The power of the British Parliament to affect Virginia, which had its own legislature, was a matter of serious constitutional dispute in the eighteenth century. The matter was ultimately settled by secession, warfare, and the Treaty of Paris of 1783. Upon independence from Great Britain in 1776, appeals from the General Court were transferred from the Privy Council in London to the new Court of Appeals of Virginia.30 5. Denouement After Independence in 1776, the judges of the General Court were elected by the General Assembly, and they were required to be learned in the law. From 1776 to 1851, there were frequent reorganizations of the Virginia court system, and the jurisdiction of the General Court was constantly being redefined. The General Court continued in existence until 1851, when the court system in Virginia was reorganized yet again, and the General Court of Virginia was gone and heard of no more.31

28  Upon Independence, the first Constitution of Virginia in 1776 provided that all bills, including tax bills, must originate in the lower house of the General Assembly and there only. Virginia Constitution of 1776, Art. 8; Virginia Declaration of Rights of 1776, Art. 6. 29  A. P. Scott, The Constitutional Aspects of the ‘Parson’s Cause’, in: Political Science Quarterly, 31, 1916, pp. 558–577; G. C. Smith, The Parsons’ Cause, 1755–65, in: Tyler’s Quarterly, 21, 1940, pp. 140–71, 291–306; Smith, Appeals to the Privy Council, pp. 607–626. 30  The Court of Appeals is today called the Supreme Court of Virginia. See generally M. V. Nelson, A Study of Judicial Review in Virginia, 1789–1928, New York, 1947; T. R. Morris, The Virginia Supreme Court: An Institutional and Political Analysis, Charlottesville, 1975. 31  F. H. McGuire, The General Court of Virginia, in: Report of the Virginia State Bar Association, 8, 1895, pp. 187–229; Nelson, A Study of Judicial Review in Virginia, pp. 14–16, 231–232.



The General Court of Virginia, 1619–1776539

Discussion and conclusion There was a political motive in the late seventeenth century to having appeals from the General Court of Virginia go to the Privy Council in London rather than to the General Assembly in Jamestown. The Privy Council was a royal institution whose members were appointed and controlled by the king, whereas the lower house of the General Assembly was a democratic body that was popularly elected. In addition, by removing appeals from a local institution to one on the other side of the world, they became more expensive and difficult, making the decisions of the General Court less likely to be appealed. The General Court was believed to be under the control of the royal Governor, who presided there. Thus, democracy might have been partially undermined. In the eighteenth century, however, matters progressed in two unanticipated ways. First, the Privy Council came under the influence of the London merchant community, and, regardless of the king’s personal desires, the Privy Council acted to serve their own personal economic interests, which resulted in the financial oppression of the American colonists. Second, in the eighteenth century, the Virginia aristocracy, who dominated the Virginia Council of State and, thus, the General Court, established their political independence from the royal Governor. Thus, the Governor could not control the colony by dominating its highest court, and the General Court could not be used as a political tool if it ever had been before. In fact, it functioned properly as a court of law, independent of political pressure. An unintended, but beneficial, consequence of the taking away of the appellate jurisdiction of the General Assembly was a step in the direction of the separation of the powers of the government. The separation of the legislative power of the government from its judicial power is important in order to assure the independence of the judiciary. The courts of law must have the independence and the power to administer the rule of law, which sometimes means enforcing individual rights against the will of the majority of the polity. This cannot be done when the judiciary is a part of the legislature or the executive branch of the government. In the seventeenth century, the English political thinkers were very much concerned by the lack of judicial independence from the king, from Charles I onwards.32 This was duly noted and appreciated in eighteenth century Virginia. In 1697, Henry Hartwell, a Virginian, wrote: 32  C. H. McIlwain, The Tenure of English Judges, in: American Political Science Review, 7, 1913, pp. 217–229; A. F. Havighurst, The Judiciary and Politics in the Reign of Charles II, in: Law Quarterly Review, 66, 1950, pp. 62–78, 229–252;

540

W. H. Bryson

It is thought an inconvenient thing in all governments that the justice and policy of the government should be lodged in the same persons, who ought to be a check upon one another …33

Therefore, in 1776, upon independence from Great Britain, the first constitution of Virginia sought to assure judicial independence by expressly separating the powers of the government into three independent branches, the judiciary being one of them. That the legislative and executive powers of the state should be separate and distinct from the judiciary …34 The legislative, executive, and judiciary departments shall be separate and distinct so that neither exercise the powers properly belonging to the other, nor shall any person exercise the powers of more than one of them at the same time …35

The result was that neither the Governor nor any member of the legislature could be a member of the General Court, or of any other court of Vir­ginia.36 The primary purpose of the separation of the powers of government is to prevent tyranny. But another major benefit is to protect judicial independence. It allows the courts to prevent arbitrary and illegal actions by the executive, such as imposing taxes without the consent of the taxpayers. It allows the courts to prevent improper actions by the legislature, such as passing ex post facto laws and laws that destroy vested rights. Ultimately, judicial independence is crucial to the administration of the rule of law, the opposite of the rule of men, which usually results in tyranny. Bibliography Baldwin, J. F., The King’s Council in England During the Middle Ages, Oxford, 1913. Barton, R. T. (ed.), Virginia Colonial Decisions, Boston, 1909. Billings, W. M., ‘The Cases of Fernando and Elizabeth Key: A Note on the Status of Blacks in Seventeenth-Century Virginia’, William and Mary Quarterly, Vol. 30, 1973, 467–474. A. F. Havighurst, James II and the Twelve Men in Scarlet, in: Law Quarterly Review, 69, 1953, pp. 522–546. 33  H. Hartwell/J. Blair/E. Chilton, The Present State of Virginia and the College, Williamsburg, 1940, p. 46. 34  Virginia Declaration of Rights of 1776, Art. 5. 35  Virginia Constitution of 1776, Art. 3. 36  For the later history of judicial independence, see W. H. Bryson, Judicial Independence in Virginia, in: University of Richmond Law Review, 38, 2004, pp. 705– 720.



The General Court of Virginia, 1619–1776541

Billings, W. M., ‘Temple v Gerard, 1667–1668: An Example of Appellate Practices in Colonial Virginia’, Virginia Magazine of History and Biography, Vol. 94, 1986, 88–107. Billings, W. M., A Little Parliament: The General Assembly in the Seventeenth Century, Richmond, 2004. Bruce, P. A., Institutional History of Virginia in the Seventeenth Century, Vol. 2, New York, 1910. Bryson, W. H., ‘Virginia Law Reports and Records’, in: Wijffels, A. (ed.), Case Law in the Making, Berlin, Vol. 1, 1997, 99–108. Bryson, W. H., ‘Judicial Independence in Virginia’, University of Richmond Law Review, Vol. 38, 2004, 705–720. Bryson, W. H., Virginia Civil Procedure, Newark N. J., 2005. Bryson, W. H., ‘The Prerogative of the Sovereign in Virginia: Royal Law in a Republic’, Tijdschrift voor rechtsgeschiedenis, Vol. 73, 2005, 371–384. Chitwood, O. P., Justice in Colonial Virginia, Baltimore, 1905. Dicey, A. V., The Privy Council, London, 1887. Finlason, W. F., The Judicial Committee of the Privy Council, London, 1878. Greene, J. P., ‘The Case of the Pistole Fee: The Report of a Hearing on the Pistole Fee Dispute Before the Privy Council, June 18, 1754,’ Virginia Magazine of History and Biography, Vol. 66, 1958, 399–422. Hart, J. S., Justice Upon Petition: The House of Lords and the Reformation of Justice, 1621–1675, New York, 1991. Hartwell, H./Blair, J./Chilton, E., The Present State of Virginia and the College, Williamsburg, 1940. Havighurst, A. F., ‘The Judiciary and Politics in the Reign of Charles II’, Law Quarterly Review, Vol. 66, 1950, 62–78, 229–252. Havighurst, A. F., ‘James II and the Twelve Men in Scarlet’, Law Quarterly Review, Vol. 69, 1953, 522–546. Hening, W. W., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the first session of the Legislature in the year 1619, 13 vols., Richmond, Philadelphia/New York, 1809–1823. Holdsworth, W. S., A History of English Law, Vol. 1, London, 1956. Jackson, C./Glennie, P., ‘Restoration Politics and the Advocates’ Secession, 1674– 1676’, The Scottish Historical Review, Vol. 91, 2012, 76–105. Jefferson, T., Reports of Cases Determined in the General Court of Virginia from 1730 to 1740 and from 1768 to 1772, Charlottesville, 1829. Kukla, J., ‘Robert Beverley Assailed: Appellate Jurisdiction and the Problem of Bicameralism in Seventeenth-Century Virginia’, Virginia Magazine of History and Biography, Vol. 88, 1980, 421–429.

542

W. H. Bryson

McCarthy, F., ‘Participatory Government and Communal Property: Two Radical Concepts in the Virginia Charter of 1606’, University of Richmond Law Review, Vol. 29, 1995, 327–380. McGuire, F. H., ‘The General Court of Virginia’, Report of the Virginia State Bar Association, Vol. 8, 1895, 187–229. McIlwain, C. H., ‘The Tenure of English Judges’, American Political Science Review, Vol. 7, 1913, 217–229. McIlwaine, H. R./Kukla, J. (eds.), Minutes of the Council and General Court of Colonial Virginia, Richmond, 1979. Morris, T. R., The Virginia Supreme Court: An Institutional and Political Analysis, Charlottesville, 1975. Munro, J. (ed.), Acts of the Privy Council of England, Colonial Series, Vol. 4, London, 1911. Nelson, M. V., A Study of Judicial Review in Virginia, 1789–1928, New York, 1947. Rankin, H. F., ‘The General Court of Virginia, Its Jurisdiction and Personnel’, Virginia Magazine of History and Biography, Vol. 70(2), 1962, 142–153. Rankin, H. F., Criminal Trial Proceedings in the General Court of Virginia, Williamsburg, 1965. Reese, G. (ed.), Proceedings in the Court of Vice-Admiralty of Virginia, 1698–1775, Richmond, 1983. Roeber, A. G., Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810, Chapel Hill, 1981. Scott, A. P., ‘The Constitutional Aspects of the “Parson’s Cause”‘, Political Science Quarterly, Vol. 31, 1961, 558–577. Scott, A. P., Criminal Law in Colonial Virginia, Chicago, 1930. Smith, G. C., ‘The Parsons’ Cause, 1755–65’, Tyler’s Quarterly Historical and Genealogical Magazine, Vol. 21, 1940, 140–171, 291–306. Smith, J. H., Appeals to the Privy Council from the American Plantations, New York, 1965. Washburne, G. A., Imperial Control of the Administration of Justice in the Thirteen American Colonies, 1684–1776, New York, 1967.

List of contributors W. H. Bryson, Blackstone Professor of Law, University of Richmond, Virginia, U.S.A. I. Czeguhn, Professor of Legal History and Private Law, Faculty of Law, Free University of Berlin, Germany. S. Dauchy, Research Director CNRS – Lille University, France; Professor of Legal History, University Saint-Louis, Brussels, Belgium. J. D. Ford, Professor of Civil Law, School of Law, University of Aberdeen, Scotland. D. Freda, Professor of Legal History, Department of Law, University ‘Federico II’ of Naples, Italy. A. M. Godfrey, Professor of Legal History, University of Glasgow, Scotland. N. G. Jones, Reader in English Legal History, Faculty of Law, University of Cambridge, United Kingdom. M. Korpiola, Professor of Legal History, Faculty of Law, University of Turku, Finland. P. Oestmann, Professor of German Legal History and Private Law, Faculty of Law, University of Münster, Germany. H. Pihlajamäki, Professor of Comparative Legal History, Faculty of Law, University of Helsinki, Finland. W. Prest, Professor Emeritus of History and of Law, University of Adelaide, Australia. C. H. van Rhee, Professor of European Legal History, Faculty of Law, Maastricht University, The Netherlands. K. Salonen, Professor of European and World History, University of Turku, Finland. D. Tamm, Professor Emeritus of Legal History, Faculty of Law, University of Copenhagen, Denmark. L. López Valencia, Research Professor at the Centro de Estudios de las Tradiciones, El Colegio de Michoacán, Centro Público de Investigación del Consejo Nacional de Ciencia y Tecnología, Mexico. A. Wijffels, Senior Research Fellow, CNRS, Lille (UMR 8025), France.