The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives mia korpiola• marko lamberg• anu lahtinen elsa trolle önnerfors• per nilsén• heikki pihlajamäki jussi sallila• marianne vasara-aaltonen martin sunnqvist• kjell å. modéer
stockholm 2014 GRUNDAT AV GUSTAV OCH CARIN OLIN The Olin Foundation for Legal History INSTITUTET FÖR RÄTTSHISTORISK FORSKNING
Editor: Mia Korpiola Cover picture: Castle Tre Kronor, view from southwest, 1661, painting by Govert Camphuysen, Photo©Stadsmuseum, Stockholm Cover & Graphic Form: Pablo Sandoval Printing & Binding: Tallinna Raamatutrükikoja, Estonia The depicted medal of Johan Stiernhöök, engraved by C.M. Mellgren, was made on behalf of the Swedish Academy in 1837 Publisher: Institutet för Rättshistorisk Forskning Grundat av Gustav & Carin Olin box2298, 103 17 Stockholm e-mail: Olin.found@telia.com www.rattshistoriskforskning.se isbn 978-91-86645-08-3 issn 0534-2724 Order & Distribution: Jure ab. Artillerigatan 67, 114 45 Stockholm phone +46 8 662 00 80, fax+46 8 662 00 86 e-mail: order@jure.se www.jure.se
Band 26 RÄTTSHI STORI SKA STUDI ER
mia korpiola• marko lamberg• anu lahtinen elsa trolle önnerfors • per nilsén• heikki pihlajamäki jussi sallila• marianne vasara-aaltonen martin sunnqvist• kjell å. modéer
The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives
acknowledgements 9 ortunately for us, the Finnish Cultural Foundation (Suomen FKulttuurirahasto) perceived the importance of the project, and with the Foundation’s grant, the participants of the project have been able to meet for seminars and go on research trips related to the project, mainly to Stockholm, but also Tartu and Cologne. This sponsorship has been invaluable for this research project. The Olin Foundation (Institutet för Rättshistorisk Forskning grundad av Gustav och Carin Olin) has also kindly sponsored our final seminar. We are very grateful that it has accepted this book in its Rättshistoriska studier series. The research project wishes to acknowledge the grant by Stiftelsen för Sigillhistorisk Forskning that made it possible to have the images of the seals of the Svea Court of Appeal drawn. We owe a special debt to Professors Lars Björne (turku), Mats Kumlien (uppsala) and Peter Oestmann (münster) who generously read and commented on an earlier version of the whole manuscript as well as to Nils Jörn (wismar) for his comments.
Acknowledgements Preface General Background: From Judicial Crisis to Judicial Revolution through the Svea Court of Appeal? A Safe Haven in the Shadow of War? The Founding and the Raison d’être of the New Court, Based on its Early Activity The Tale of Two Courts in One Town: The Relationship between the Stockholm Town Court and the Svea Court of Appeal 1614 – 1624 Prolonged Noble Property Disputes in the Svea Court of Appeal: Case Studies from the Early Years Suum Cuique Tribuere – Give to Each His Own: Court Cases Involving Swedish Nobility in the Svea Court of Appeal 1650 – 1690 Slandering the King and His Councillors: The Svea Court of Appeal and Judicial Practice 1614 – 1700 The Court of Appeal as Legal Transfer: The Svea and Dorpat Courts Compared Entangled in Insolvency: The Svea Court of Appeal and the Making of Bankruptcy Law in Late Seventeenth-Century Sweden 9 14 23 55 109 131 163 201 217 261 the svea court of appeal in the early modern period 10 Table of Contents Mia Korpiola Mia Korpiola Marko Lamberg Anu Lahtinen Elsa Trolle Önnerfors Jussi Sallila Per Nilsén Heikki Pihlajamäki
table of contents 11 From Well-travelled “Jacks-of-all-trades” to Domestic Lawyers: The Educational and Career Backgrounds of Svea Court of Appeal Judges 1614 – 1809 Insignia of Independence or Subordination? The Iconography of the Seals of the Svea Court of Appeal Mixed Legal Systems in Early Modern Sweden: Judicial Traditions and Reforms in an Expanding European Great Power – Some Concluding Remarks Contributors Note on Some Editorial Principles Glossary Appendix with images 301 355 395 424 426 428 430 Marianne Vasara-Aaltonen Martin Sunnqvist Kjell Å. Modéer
Tre Kronor or Three Crownswas a castle located in Stockholm, Sweden, on the site where Stockholm Palace is today. It is believed to have been a citadel that Birger Jarl built into a royal castle in the middle of the thirteenth century. The name “Tre Kronor” is believed to have been given to the castle during the reign
of King Magnus IVin the middle of the fourteenth century. Most of Sweden’s national library and royal archives were destroyed when the castle burned down in 1697, making the country’s early history unusually difficult to document. Photo© Stadsmuseum, Stockholm
n 1997 whenJohan Hirschfeldt, then president of the Svea Court of IAppeal, envisaged the celebrations of its fourth centenary, he expressed his hopes for a book analysing its history. However, as Sture Petrén, Stig Jägerskiöld and Tord O:son Nordberg had published a fullscale scientific work in 1964 focusing on the history of the Court until 1734,1 Hirschfeldt visualized that the book published in 2014 would recount the Court’s history mainly from 1734 until the present, but perhaps with a less scientific approach.2 Indeed, the notion that the earlier history of the Svea Court of Appeal has already to some extent been exhausted, thus rendering it a less worthwhile subject, seems to be recurring. More than a decade later, and even today, such a notion was expressed in the review of the Festschrift Svea hovrätt 400 år [Engl. Svea Court of Appeal 400 Years] inSvenska Juristtidningen [Engl. Swedish Lawyers’ Journal]. “It is a wise editorial starting point [to focus on today and the future] especially as the early history of the Svea Court of Appeal already is extraordinarily well documented by inter alia Sture Petrén, President of the Court of Appeal, and Professor Stig Strömholm in connection with the 350th and 375th anniversaries of the court.”3 Luckily, such opinions were still unknown to me when in 2009 I felt that the Svea Court of Appeal merited a book focusing on its history for its fourth centenary in 2014 and started planning this book project in Helsinki. It was a natural next step to ask other researchers who had done research on the Svea material or other courts of appeal to join the project, approaching the Svea Court from various perspectives. Since the work the svea court of appeal in the early modern period 14 1 Petrén, Sture – Jägerskiöld, Stig – Nordberg, Tord O:son 1964. 2 Hirschfeldt, Johan 2002 pp. 14-15. 3 Abrahamsson, Olle 2014 p. 109: “Jubileumsskriftens huvudsyfte är alltså att ställa dagens och morgondagens frågor under debatt. Det är en klok redaktionell utgångspunkt, särskilt som Svea hovrätts tidiga historia redan är utomordentligt väl dokumenterad av bland andra hovrättspresidenten Sture Petrén och professor Stig Strömholm i anslutning till hovrättens 350- respektive 375-årsjubileum.” Preface
preface – mia korpiola 15 started, the project group has been even more convinced of the merits and value of conducting more research on the earlier history of the Court instead of feeling inhibited by preconceived notions that it had been exhausted by the 350th anniversary book, further research by Stig Jägerskiöld,4 and a number of articles mainly from the period between and during the two World Wars.5 Rather, our shared opinion was that the vast archives of one of the most historical courts of Sweden had been relatively seldom used in legal history research. Indeed, the material for the period 1614 –1948 alone occupies 4.8 shelf kilometres according to Hirschfeldt.6 Yet, despite its potential, there are relatively few modern legal history studies that have focused on the material of the Svea Court of Appeal. Maria Ågren’s book on the seventeenth-century practice of the court regarding the evolution of the institution of ancient usage (urminnes hävd) is one of the few.7 Another significant study is Elsa Trolle Önnerfors’s recent book on the praxis of the Svea Court in the law of succession and testamentary litigation in the latter part of the seventeenth century.8 Several other Swedish courts of appeal have also merited attention. Rudolf Thunander’s important book on the practice in the criminal cases of the Göta Court of Appeal was published two decades ago,9 while Iisa Vepsä’s study on the establishment and first decades of the Vaasa Court10 and Heikki Pihlajamäki’s work on the Dorpat (present-day Tartu) Court represent more recent research.11 We also knew, based on our own knowledge, partly of the Svea archive, partly of other related materials such as other Swedish courts of appeal, that there was no end to the research opportunities that this monumental court archive could give rise to even after the ravages of fires and archival pruning.12 Admittedly, when the project was started, a broader chronological scope up until the twentieth century was planned. However, as 4 E.g., Jägerskiöld, Stig 1963. 5 E.g., Afzelius, Ivar 1914 pp. 171-183; Almquist, J.E. 1940 pp. 468-478; Petrén, Sture 1945 pp. 171-184; Petrén, Sture 1947 pp. 1-25. 6 Hirschfeldt, Johan 2002 p. 16. 7 Ågren, Maria 1997. 8 Trolle Önnerfors, Elsa 2013. See also Korpiola, Mia 2007 pp. 153-179. 9 Thunander, Rudolf 1993. 10 Vepsä, Iisa 2009; Vepsä, Iisa 2012 pp. 499-524. 11 Letto-Vanamo, Pia – Pihlajamäki, Heikki 2002 pp. 129-146; Pihlajamäki, Heikki 2003 pp. 197-213; Pihlajamäki, Heikki 2007 pp. 62-80. 12 E.g., Landahl, Sten 1950 pp. 199-224.
the svea court of appeal in the early modern period 16 some researchers had to leave the project for personal reasons, it became obvious that the chapters of the book would largely concentrate on the long seventeenth century, i.e., much the same period already covered in the 350th anniversary Festschrift from 1964. This is also why the book is entitledThe Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives. The research project had a couple of leading principles in its work. Firstly, the articles in the book had to produce new research and fresh insights into the history of the Court. Secondly, partly related to this, the essays were to be based on archival research using its rich records. While the 300th anniversary article by Ivar Afzelius13 and the 350th anniversary book by Sture Petrén, Stig Jägerskiöld and Tord O:son Nordberg had been excellent pioneering works and a basis for any subsequent research on the Svea Court of Appeal, during recent decades new research questions have been posed. Some of these perspectives are also apparent in this book. Justiznutzung, how legal actors used law courts or legal instruments strategically to further their aims, has been an important aspect of historical research on courts, crime and litigation in the years since Martin Dinges coined the term in the 1990s and early 2000s.14 In their articles, both Anu Lahtinen and Elsa Trolle Önnerfors investigate how the nobility used the Court of Appeal, which was their forum privilegiatum, although the extent of this forum privilege changed over time. While the approach of Trolle Önnerfors is quantitative, Lahtinen qualitatively explores three noble property disputes in depth, highlighting how struggles for the ownership of estates could – and did – drag on for many decades on end. It was difficult to achieve a final conclusion to a court case despite a string of investigations by and verdicts from town courts, royal officials and courts – even the king in person. This partly explains the necessity to have a permanent superior royal court to monitor the goings-on in various provinces and counteract local power bases. However, the cases also indicate that the execution of the verdicts of even the Svea Court of Appeal was not quite straightforward. Lahtinen demonstrates some of the arguments and legal strategies of litigants in the Svea Court of Appeal. She also contributes to the gender perspective by discussing the uses and threats of the guardian13 Afzelius, Ivar 1914 pp. 171-183. 14 E.g., Dinges, Martin 2000 pp. 503-544.
preface – mia korpiola 17 ship system (målsmanskap) to women. Elsa Trolle Önnerfors explores the types of case nobles litigated about in the Svea Court. Property disputes featured prominently here. She also points out the importance of the noble estate in using legal instruments, such as the will, for inheritance and property strategies. Wills were first disputed in the courtroom before the new norms regulating their use were enacted. The 1686 Statute of Wills was largely based on Svea Court of Appeal precedents and thus, through its practice, the Svea Court of Appeal had a law-making role. Indeed, because the medieval laws15 were still in force until the 1734 Code replaced them, there was room for innovation through court practice, reception and statutory law. The role of the Svea Court of Appeal in developing Swedish law by its practice is also investigated in Jussi Sallila’s and Per Nilsén’s articles. In his chapter, Per Nilsén focuses on political crimes through a particular aspect of lese-majesty, slandering the king and the members of the Council of the Realm. He argues persuasively that the Svea Court of Appeal cooperated closely with the King in interpreting the section of King Christopher’s 1442 Law of the Countryside, and thus developed the law through its leading cases that were followed as precedents in the Court’s own practice. Nilsén also provides more evidence on how the courts of appeal mitigated the rigours of the law. In presenting his conclusion, he calls for further research that could compare the practice of the Svea Court of Appeal with its sister court in Jönköping, the Göta Court of Appeal. Jussi Sallila focuses on the development of Swedish bankruptcy law, another field in which several of the leading cases of the Svea Court had a law-making role in the later seventeenth century. However, in his article, Sallila revisits the research by Stig Jägerskiöld and reinterprets some of his evidence. As far as Swedish bankruptcy law was concerned, Sallila argues, Jägerskiöld overstressed the role of the reception of foreign law and its Europeanization. Instead, as in many other fields of law, the domestic elements intermingled with the foreign legal influences, resulting in a unique blend. Mia Korpiola also offers a fresh reading of the establishment of the Svea Court of Appeal from the perspective of its own records, especially for its first year. While the Svea Court could have been 15 The roughly mid-fourteenth-century Town Law promulgated by King Magnus II Eriksson of Sweden (r. 1319 –1363) and the 1442 Law of the Countryside promulgated by King Christopher III of Bavaria (1441 –1448).
the svea court of appeal in the early modern period 18 one in a string of several experiments of organizing the highest judicial powers of the king, there were special circumstances that made the courts of appeal into a success story. Korpiola suggests that the establishment of the Court was necessary to provide the people with a show of good governance at a time of crisis. Because of the wars, the Crown needed an institution to handle the administration of justice and adjudicate appellate cases that had previously been referred to the Council of the Realm during the absences of King Gustav II Adolf from the capital on various campaigns. The exigencies of war that prompted the establishment of the new tribunal were so pressing that many practical matters related to the daily business of the Court had been left unregulated when the Court started its work in May 1614. No clear-cut divide was made between the powers of the Svea Court of Appeal and the monarch during his long absences from the capital and during ordinary circumstances when the King returned home. Courts vis-à-vis other courts are the subject of Marko Lamberg and Heikki Pihlajamäki. While Lamberg focuses on the relations and interaction between the new royal Court of Appeal and the Stockholm Town Council and the local Town Court, Pihlajamäki applies the notion of legal transfers to the courts of appeal in Sweden. The point of departure for Lamberg is the establishment of the Svea Court of Appeal that reduced the status of the Town Court of Stockholm and its burgher judges to some extent. Lamberg suggests that the local court may have occasionally been inclined to favour local litigants and the town’s economic interests in its interpretations, but that the Svea Court of Appeal, having a more detached attitude, took its role as guarantor of justice for individuals seriously. Despite the occasional flaring of tensions, the courts maintained working cooperation with one another. The Svea Court of Appeal forced the Town Court to pay attention to the letter of the law and its proper interpretation, while relieving the burghers of some justice-related work. Heikki Pihlajamäki compares two Swedish courts of appeal, Svea and Dorpat (present-day Tartu) in Swedish Livonia in terms of legal culture. He observes that in establishing the Dorpat Court after the model of Svea, the local context was taken into consideration to some extent. In practice however the local legal culture, more learned and more feudal as it was, made the Dorpat Court an unmistakably different court of appeal from the Svea Court. It was more European and more learned, using torture as a matter
preface – mia korpiola 19 of course, following somewhat different legal sources, arguing routinely withius commune authorities (Roman law, learned jurisprudence) and with learned advocates representing the parties. Pihlajamäki’s findings suggest that a comparison between several aspects of the Swedish courts of appeal may lead to observations about their particular features. The court of appeal had proved itself a useful institution for the administration of justice, adjudicating cases and legitimizing the rule in the eyes of the Crown. Yet, the Swedish courts of appeal may have had somewhat individual identities depending on the special qualities of the soil of the region in which they were planted. Indeed, this is also suggested by the research of Iisa Vepsä on the Court of Appeal of Vaasa (Sw. Vasa), established in 1775. In the jurisdiction of the Vaasa Court, there were few noble estates and, as Vepsä has observed, “from the viewpoint of the litigants, it [the Vaasa Court of Appeal] was first and foremost the court of peasants.”16 This is in stark contrast with what Heikki Pihlajamäki has observed about the Dorpat Court; namely, that “the access of peasants to the Court of Appeal was effectively barred.”17 This made the Vaasa Court probably into the most down-to-earth and least sophisticated of the Swedish courts of appeal. By contrast, Maria Ågren has used her analysis of the cases of the Svea Court of Appeal in 1686-1687 to suggest that the Svea Court largely served Stockholm and its surroundings, which were over-represented (Stockholmsområdet var […] överrepresenterat) in the total number of cases.18 Thus, the wealthy and cosmopolitan capital gave a special flavour to the cases of the Svea Court, probably also adjudicating some of the most legally complex disputes in the Realm. As Elsa Trolle Önnerfors has argued in her chapter, a significant number of the litigants at the Svea Court of Appeal in the latter half of the seventeenth century were noble. While almost a quarter of the litigants were noble on average, their proportion increased to a third at the end of the seventeenth century. This was partly due to new ennoblements and partly to the Great Reduction of 1680, the repossession of Crown lands (Sw. reduktionen), which came to nearly halve 16 Vepsä, Iisa 2009 p. 223: “oikeudenhakijoiden näkökulmasta se oli ennen kaikkea talonpoikien oikeus.” 17 See Heikki Pihlajamäki’s chapter in this volume. 18 Ågren, Maria 1997 p. 59.
the svea court of appeal in the early modern period 20 the estates owned by the nobility and resulted in a struggle for the remaining resources. Such findings would indicate that all the Swedish courts of appeal had differents profiles. However, much more research would need to be done in this area. The essay by Marianne Vasara-Aaltonen tells a story about the professionalization of appeal court judges in early modern Sweden up to 1809 in terms of increased university education first abroad and then in Sweden and more specifically judicial career paths. Her research also highlights the uses of comparative approaches in legal history. She has conducted longue durée research into the educational background of the judges of the Svea Court of Appeal in the seventeenth and eighteenth centuries. In her comparative analysis juxtaposing the education and careers of the Turku Court of Appeal judges and those of the Svea Court, Vasara-Aaltonen has observed that the early seventeenth-century Turku Court had more educated judges than the Svea Court. In the last of the research articles of this volume, Martin Sunnqvist also employs the comparative method in analysing the seal of the Svea Court of Appeal in the context of royal jurisdictional powers in Sweden and certain other European countries. Sunnqvist acknowledges the iconographical debt of the Svea Court to its predecessor, King Erik XIV’s High Council in the 1560s, but argues that the differences indicate the independence of the Svea Court in relation to the ruler. The present seal in its 1818 form stresses the equality of every man in the eyes of the law. The balanced scales acted as harbingers of dawning legal modernity, a world in which the estates and their privileges no longer existed and all citizens were equal before the law. As Elsa Trolle Önnerfors pointed out in her article, the dismantling of the privileges of the Swedish nobility was a long process that finally came to an end in the twenty-first century despite the forum privileges of the estate being abolished in 1865 and 1916. Instead of declaring the earlier history of the Svea Court exhausted after this book, we rather invite more legal historian and historians to conduct research into its extensive records. Our perspectives represent just a few approaches and research questions out of a vast array of opportunities. Even for many of the contributors, these essays are rather a beginning than an end to Svea Court of Appeal research. Through this vänbok, liber amicorum, and the research it presents, I and all the other contributors wish to pay our homage to the Svea Court of Appeal in celebrating its fourth
abrahamsson, Olle 2014: “Svea hovrätt 400 år – en framåtsyftande jubileumsskrift.” In: Svensk Juristtidning afzelius, Ivar 1914: “Ett Trehundraårsminne: Anförande vid Svea hovrätts plenum den 16. febr. 1914.” In: Svensk tidskrift almquist, Jan Eric 1940; “Bidrag till frågan om Svea hovrätts uppkomst.” In: Svensk Juristtidning preface – mia korpiola 21 centenary. With good reason did the Court become an institutional model that was considered worth replicating in other regions of the Swedish Realm. We wish the Svea Court of Appeal many happy future years dispensing justice to the people of Sweden as it has been doing for four centuries now. Bibliography Secondary Literature
preface, bibliography 22 dinges, Martin 2000: “Justiznutzung als soziale Kontrolle in der Frühen Neuzeit.” In: Kriminalitätsgeschichte: Beiträge zur Sozial- und Kulturgeschichte der Vormoderne Konflikte und Kultur – Historische Perspektiven, 1 (eds. Andreas Blauert and Gerd Schwerhoff), Konstanz hirschfeldt, Johan 2002: “Svea hovrätt inför sitt 400-årsjubileum – planer till en domstolshistorik.” In: Rättshistoriska studier vol. 22 (ed. Kjell Å. Modéer), Stockholm jägerskiöld, Stig 1963: Studier rörande receptionen av främmande rätt i Sverige under den yngre landslagens tid, Lund korpiola, Mia 2007: “’The Fall and Restoration of Elin Tönnesdotter’: Land, Noble Property Strategies and the Law in Early Seventeenth-Century Sweden.” In: The Trouble with Ribs: Women, Men and Gender in Early Modern Europe (eds. Anu Korhonen and Kate Lowe), COLLeGIUM. Available online at: https://helda.helsinki.fi/bitstream/handle/10138/25757/002_09_korpiola.pdf?s equence=1 (last accessed on 3 July 2014) landahl, Sten 1950: “Skoglar Bergström och gallringen i Svea Hovrätts arkiv.” In: Donum Boëthianum: Arkivvetenskapliga bidrag tillägnade Bertil Boëthius 31/1/ 1950, Stockholm letto-vanamo, Pia – Pihlajamäki, Heikki 2002: “Funktionen des Livländischen Hofgerichts (1630 –1710): Bericht über ein Forschungsprojekt.” In: Geschichte und Perspektive des Rechts im Ostseeraum(eds. Jörn Eckert and Kjell Å. Modéer), Frankfurt am Main petrén, Sture 1947: “Våra första advokater.” In: Svensk Juristtidning petrén, Sture – Jägerskiöld, Stig – Nordberg, Tord O:son 1964: Svea hovrätt. Studier till 350-årsminnet, Stockholm pihlajamäki, Heikki 2003:“,.... dass kein Theil mit Billigkeit zu klagen Ursache habe‘: Die schwedische Hof- und Untergerichtsreform der Jahre 1630/32 in Livland und das Schicksal der bäuerlichen Gerichtsbarkeit: Studien zur Alten Forschung.” In: Integration durch Recht (eds. Nils Jörn, Bernhard Diestelkamp and Kjell Åke Modéer), Cologne pihlajamäki, Heikki 2007: “Der frühmoderne Jurist und die Rechtsquellen: Rechtsanwendung in den livländischen Gerichten der schwedischen Zeit (ca. 1630 –1710).” In: Höchstgerichte in Europa: Bausteine frühneuzeitlicher Rechtsordnungen(eds. Leopold Auer, Werner Ogris and Eva Ortlieb), Wien thunander, Rudolf 1993: Hovrätt i funktion: Göta hovrätt och brottmålen 1635-1699, Rättshistoriskt bibliotek vol. 49, Lund trolle önnerfors, Elsa 2014: Justitia et Prudentia: Rättsbildning genom rättstilllämpning: Svea hovrätt och testamentsmålen 1640-1690, Rättshistoriskt bibliotek vol. 70, Stockholm vepsä, Iisa 2009: Oikeuden hakijat: tutkimus Vaasan hovioikeuden perustamisesta ja varhaisesta toiminnasta, Helsinki vepsä, Iisa 2012: “Lain ja asian luonteen mukaan – oikeuslähteet 1700-luvulla.” In: Lakimies ågren, Maria 1997: Att hävda sin rätt: Synen på jordägandet i 1600-talets Sverige, speglad i institutet urminnes hävd, Rättshistoriskt bibliotek vol. 57, Stockholm
the svea court of appeal in the early modern period 23 General Background: From Judicial Crisis to Legal Revolution through the Svea Court of Appeal? mia korpiola
The portrait depicts Gustav II Adolf in what traditionally has been described as a Polish costume with a red jacket decorated with braid, velvet cuffs, a lace collar and a red hat, with a view of Frankfurt am Main in the background. During the years 1631 and 1632, Gustav II Adolf operated a campaign to be elected King of Poland, where his aging cousin, and archenemy, SigismundIII still held the throne. Painting by Matthäus Merian. GustavII Adolf(1594 – 1632)
general background – mia korpiola 25 19 RA, SH; HA, A1 a 1:1, sine pagina. 20 RA, SH; HA, A1 a 1:1, fol. 1. 21 Bure, Anders 1631, fol. B 2. he first recordbook of the Svea Court of Appeal describes Thow Axel Oxenstierna (1583 –1654), the Chancellor of Sweden, gave a “beautiful and wonderful oration” (een skön och härligh Oration) on 19 May 1614 to the noblemen and commoners who had assembled at the Castle of Stockholm for the commencement (ingång) of the activity of the recently established court. The authorization of the court, duly signed and sealed by the king, was then solemnly read as well as the names and oath of the judges waiting to be installed. At that juncture, each judge then present, starting with the court’s future president and the King’s judge-assignee (Doomhafwande), the experienced and authoritative Count Magnus Brahe (1564 – 1633), came forward, put a hand on the law book and took the sacred oath to do justice to everyone. During the following day, more judges and officials were publicly sworn in.19 On 22 May, the first law term of the court started officially with ten judges present, and they heard their first case.20 Thus, the first royal Court of Appeal or hovrätt in Stockholm started its activity. It was not then called the “Svea Court of Appeal” as nowadays, but was called by several rather different names, discussed more in detail in the next chapter. The most common of these was “konungslige hovrätt,” (lit. royal law court of the [King’s] court). For example, in his Orbis Arctoi, a Latin description of Sweden to the learned world, first published in 1626, Swedish official and cartographer Anders Bure (1571 – 1646) called the Svea Court of Appeal a “parliament or the supreme court of the province (Parlamento vel summo judicio regio) calledHoffrettenorKonungznämd.” The reform of the Swedish justice system through the establishment of the court in February 1614 has been called “without doubt one of the most significant internal occurrences during the reign [reign 1611 – 1632] of Introduction
Gustav Adolf”.22 After its establishment, we are told, “[f]airness and equitable treatment for all the citizens throughout the nation became a reality.”23 More modestly, the first court of appeal seems to have been a success story as several other similar tribunals were established later.24 The Court of Appeal for Finland was founded in Turku (Åbo) in 1623, Dorpat (Tartu in present-day Estonia) in the Baltic province of Livonia in 1630, Göta (in Jönköping) in Southern Sweden in 1634, and Greifswald, Swedish since 1655, for the German territories. Another court of appeal for the eastern part of the realm (Northern Finland) was established in Vaasa (Vasa) in 1776.25 Even after the establishment of other regional courts of appeal, the Svea Court remained the leading primus inter pares as the oldest and most prestigious of these.26 The courts of appeal thus became “the pivots of legal life”27 in Sweden. The significance of the events of 1614 must be seen against the “judicial crisis” theory proposed in some research on the Svea court. In his 1966 article, Sture Petrén has described the establishment of the Court of Appeal as a reaction to a crisis in the Swedish legal culture, arguing that the reign of King Charles IX(de facto r. 1599 – 1611) was spent in “great internal 22 Ahnlund, Nils 1932 p. 185: “Rättegångsreformen är utan tvivel en av de betydelsefullaste inre tilldragelserna under Gustav Adolfs regering.” 23 Peterson, Gary Dean 2007 p. 129. 24 Cf. Roberts, Michael 1953 p. 267, considered the establishment of other courts of appeal as a sign of the failure of the reform,“[a]bove all, the intention of centralizing the highest justice in the court was not realized. […] The relationship of Svea Hovrätt to these new courts was not clearly defined; and thus in effect the idea of unifying the central administration of justice was not carried out.” 25 For brief textbook mentions of the Swedish courts of appeal, see, e.g., Inger, Göran 1986 p. 71. For the Turku court, see, especially Melander, K.R. 1936 andTurun hovioikeus 1623 31/10 1973 =Åbo hovrätt 1623 31/10 1973, and for Göta, see, e.g., Thunander, Rudolf 1993. For the later Vaasa court, see Vepsä, Iisa 2009. 26 However, it is occasionally forgotten in the literature that although the Svea Court of Appeal was the oldest royal court of appeal, the 1614 Judicature Ordinance takes cognisance of the already existing ducal courts of appeal. According to the final wording of the Ordinance, the new royal court and “supreme judgement” (öfwerste Doom) heard all legally wagered causes from all the ducal hoffrätter or high courts according to the donations, all lagman’s courts and town courts of the kingdom, the Provincial Council (Landzrådh) of Estonia, the town courts of Narva and Tallinn (both in present-day Estonia), 13 Article, Rättegångs-Ordinantie (1614), Kongl. stadgar, ed. Schmedeman, p. 134. See also the negotiations with the Dowager Queen Kristina and Duke Johan at the Diet of Örebro in 1614, Svenska riksdagsakter, 1. series, 2:1, ed. Ahnlund, pp. 398-410. 27 Letto-Vanamo, Pia 1991 p. 34. the svea court of appeal in the early modern period 26
general background – mia korpiola 27 strife and dissensions,” religious disputes between Catholics and Protestants, and the first civil war between the partisans of Duke Karl of Södermanland [later Charles IX] and King Sigismund [of Sweden, r. 1592 – 1599]. After the latter’s deposition, “ruthless persecution of the followers of Sigismund […] and the believers in the old faith” followed. But what Petrén especially emphasized was the increasing lawlessness of the reign of King Charles. “[T]here was also a steady deterioration in the general administration of justice, owing to the slackening of the whole judicial machinery caused by the political unrest.”28 At the Diet in 1611, the Estates and the Council of the Realm had been drawing attention to the lack of judges and trials and the difficulty in having sentences executed as this had been left to the injured party. Consequently, cases dragged on. Concerns were also raised that nobody was to lose his life, freedomor property unless his case had been lawfully examined.29 Petrén refers to the “irregularities of procedure” that “added to the confusion that characterized the functioning of law courts” during the reign of King Charles IX. “One of the most urgent tasks of his king and successor therefore was to put a stop to the dissolution of the judicial institutions.”30 Günter Barudio has pinpointed the prevalence of ordinary crimes, especially offences against the Decalogue, referring to the so-called Ordinance on Heinous Crime of Charles IX in 1611.31 The King was as unsuccessful in improving the conditions of his realm through this ordinance as during the ten previous years of his restless reign.32 The 1614 Ordinance of Judicial Procedure (Rättegångs-Ordinantie) that established the Svea Court also referred to the inadequate state of law and justice in the Realm that the people complained about. The Ordinance attempted to remedy the situation as the King’s office was required to suppress injustice and “to have the wholesome justice reign and be administered” (then helsosamma Justitia […] widh macht hållas och administreras).33 28 Petrén, Sture 1966 p. 263. 29 The proposition (framställning) of the Estates and the Council of the Realm on the King’s assurance (konungaförsäkran), 19 Dec. 1611, Svenska riksdagsakter, 1. series, 2:1, ed. Ahnlund, pp. 62-64. 30 Petrén, Sture 1966 p. 264. To a lesser degree, see also Thunander, Rudolf 1993 p. 9. 31 K. Carl den IX Straff-Ordning (1611) in Kongl. stadgar, förordningar, bref, ed. Schmedeman, pp. 130-131. 32 Barudio, Günter 1982 p. 141. 33 Rättegångs-Ordinantie (1614), inKongl. stadgar, ed. Schmedeman, pp. 133-134.
the svea court of appeal in the early modern period 28 Admittedly, the founding of the Court, bringing order to disorder, seems like a beacon of light against such a sombre background. But was the state of the justice system in the previous decade really as lamentable as has been suggested? Had there not been various attempts on the part of the crown to control the Swedish judicature better and provide the people of Sweden with justice and order? In this chapter, the Svea Court of Appeal will be presented against the background of the re-organization of the King’s judicial powers as the highest judge in his realm. I will be investigating the pre-history and early stages of the so-called “legal revolution” in Sweden. In early modern Sweden, the courts of appeal have generally been identified as one of its main instruments, symbolizing elements of interruption and change in the Swedish legal culture. As Göran Inger has observed, “[t]here were no medieval counterparts for the courts of appeal, established in the seventeenth century. They were new creations with German equivalents as models.”34 Without wishing to debate Inger’s view as such, the courts of appeal should also be seen in the light of the longue durée history of supreme jurisdiction, as means to organize and centralize the royal jurisdiction and bring the administration of justice more effectively under the control of the royal administration. Below, I will discuss the Svea Court of Appeal in its context as part of organizing the ruler’s judicial power and as part of the legal revolution. The “judicial crisis” supposedly behind the establishment of the court will be assessed against this background. In late-medieval and early modern Europe, the higher justice of kings and rulers came to play a considerable role in what has been called a “judicial revolution” at least since about 1980. In the context of European legal history, the judicial revolution has been defined as the “tendency for local communities progressively to lose control of both the content and the administration of criminal law to the agents of the expanding state.”35 Richard L. Kagan has also written about a “legal revolution” in late medieval and early modern Castile, meaning by this term a marked rise in “the for34 Inger, Göran 1986 p. 117: “Någon medeltida motsvarighet till de på 1600-talet inrättade hovrätterna fanns inte. De var nyskapelser med tyska motsvarigheter som förebild.” 35 Gatrell, V.A.C. – Lenman, Bruce – Parker, Geoffrey 1980 p. 6. Courts of Appeal as Tools of the Legal Revolution
general background – mia korpiola 29 mal adjudication of disputes,” especially civil litigation, “accompanied by a widespread interest in legal study, the development of a sophisticated legal profession, and the expansion of the royal judiciary.”36 What is then meant by the legal revolution in Sweden? Here it is considered to mean the unification of Swedish law and legal practice which could only be achieved by centralizing the judiciary and by submitting it to monitoring fromabove, royal control. In practice, a hierarchical system had to be established which screened – and if necessary reversed – the decisions and verdicts of the local courts. The completion of judicial centralization took at least a century to establish, this having already started in the Middle Ages when the local communities started to lose some of their powers. The right to elect judges became the right to nominate judges. In Sweden, this change was also inherently intertwined with the growing power of the king. In the early modern era, the discretion of the local courts and officials was increasingly eroded so that they were to abide by the letter of the law. By contrast, the king showed mercy through the prerogative of pardon and by adjudicating over cases in which the law was unclear or there was a gap. This also meant that all criminal cases were to be taken to court so that the revenues from the judiciary were to go to the king. Textbooks have called the seventeenth century a “transitional period when the so-called judicial revolution, a thorough juridification of society, took place in Sweden.”37 Others have seen the Swedish seventeenth-century centralization, harmonization and state control of the justice system and administration as the “juridical revolution” (juridinen vallankumous).38 The courts of appeal have been identified as the main instruments of the judicial revolution in Sweden. In his work on the Göta Court of Appeal, Rudolf Thunander discussed the establishment of the courts in the context of the judicial revolution (judiciella revolutionen), listing a number of consequences of the courts of appeal. The unification of the administration of justice and its rendering more effective have been highlighted as the “central background idea” of the courts of appeal. The court hierarchy 36 Kagan, Henry L. 1981 esp. pp. xx-xxii. 37 Pihlajamäki, Heikki – Pylkkänen, Anu 1999 pp. 26-27: “Koko 1600-lukua voidaan pitää ylimenokautena, jolloin Ruotsissa tapahtui niin sanottu oikeudellinen vallankumous, yhteiskunnan läpikotainen oikeudellistuminen.” 38 Kekkonen, Jukka 2002 pp. 62-63.
the svea court of appeal in the early modern period 30 was firmly established and the appeal system confirmed. Indeed, the unification took largely place by the central power monitoring the activities of the lower courts.39 Göran Inger considered the “control function” of the courts of appeal over the lower courts of paramount significance to the Swedish legal development through the creation of a uniform legal practice within the jurisdiction of each court of appeal.40 Indeed, the monitoring done by the courts of appeal resulted in more uniform legal practice within the jurisdiction district by the appeal system and the submission of a large portion of capital penalties to the scrutiny of the superior court. Judges were required to send in their written court records for inspection annually. The lower courts were to base their decisions on the law, which reduced their traditional discretionary powers.41 In addition, royal officials were investigated and impeached at the courts of appeal for wrongdoings or dereliction of duty, and incompetent or venal judges were charged with misconduct and punished and replaced if found guilty. To what extent the establishment of the courts of appeal contributed to the formation of a modern legal system is more disputed.42 Indeed, researchers have also emphasized the stratification of the Swedish court system as the courts of appeal became the privileged courts of the nobility, largely staffed by other noblemen who judged their peers.43 What is undoubtedly true is that it contributed to the professionalization of lawyers. Once the use of advocates was permitted in 1615, the Svea Court of Appeal quickly attracted such attorneys affiliated with the Court.44 By star39 E.g., Thunander, Rudolf 1993 esp. pp. 6-15. See also the textbooks of Kekkonen, Jukka 2002 pp. 64-65; Kekkonen, Jukka 2002 p. 18. 40 Inger, Göran 1986 p. 71. 41 Rättegångs-Ordinantie (1614), Kongl. stadgar, ed. Schmedeman, p. 139; Petrén, Sture 1964 pp. 3-45. 42 Heikki Pihlajamäki and Anu Pylkkänen (1999 p. 279) have denied the modernity of the system, while Jukka Kekkonen considers that not merely a “quintessential shift from traditional to premodern or partly even towards modern administration of justice” (olennainen siirtymä traditionaalisesta esimoderniin tai osin jopa modernin oikeudenkäytön suuntaan) took place during the seventeenth century. Kekkonen means the shift from communitarian towards a state-controlled and a professionalizing system in particular, although he emphasises the slowness of the change in practice and the local variations; Kekkonen, Jukka 2002, p. 19. 43 Kekkonen, Jukka 2002, p. 18; Kekkonen, Jukka 2002 p. 65. 44 Rättegångs-Process, 23 June 1615, Kongl. stadgar, ed. Schmedeman, pp. 152-153; Petrén, Sture 1947 pp. 1-25; Letto-Vanamo, Pia 1989 esp. pp. 14-20, 23-26, 33-63, 175-222.
general background – mia korpiola 31 ting to accept law students as trainees observing sessions (auskultant) regularly from 1628 on, the courts of appeal contributed to a degree of professionalization of Swedish lawyers despite the Swedish judiciary and legal culture remaining largely lay-dominated for centuries.45 The role of the courts of appeal in making law has been emphasized. This took place partly through “the fundamental and authoritative answers and statements,” given by the courts to questions put to them; partly through the case law created by their precedents.46 On the other hand, ever since the inception, the courts of appeal turned directly to the king for guidance in difficult matters involving the interpretation of law.47 The activities of one court of appeal could also influence the praxis of the other courts through circulars, legal questions relating to particular cases put by one court to the king, whose authoritative answer was then circulated to the rest.48 Thus, some unification of the law in the whole realm took place even if the question regarding the interpretation of the law came from one particular court of appeal. The courts of appeal have traditionally also been considered as the key institutions in the reception of mainly Roman foreign law. However, recent research has shown that the perceptions of the influence of Roman law on court-of-appeal practice need to be reconsidered. Roman law was not considered an authoritative source of law, and it was rarely explicitly cited by the Svea Court as justification for its decisions. Rather, the influence was more indirect.49 To what extent the first statutes of 1614 (1614 Ordinance of Judicial Procedure) and 1615 (Rules on the Procedure of the Court of Appeal) establishing and regulating the court were modelled on foreign high courts and parliaments is disputed. Nowadays, researchers would hardly adhere to Karl Gustaf Westman’s nationalistic notion that “[f]ew institutions 45 Gaunt, David 1975 esp. pp. 31-71; Petrén, Sture 1964 pp. 86-93; Jägerskiöld, Stig 1964 pp. 204-212. See also Kekkonen, Jukka 2002 pp. 18-19; Kekkonen, Jukka 2002 p. 66. 46 E.g., Inger, Göran 1986 p. 71. 47 E.g., the King’s answer to the Svea Court of Appeal regarding the questions asked, 23 June 1615, Kongl. stadgar, ed. Schmedeman, pp. 163-165. 48 E.g., Letter from Charles XI to the Svea Court of Appeal, 30 June 1687, Kongl. stadgar, ed. Schmedeman, pp. 1129-1130. 49 See esp. Jägerskiöld, Stig 1963 esp. pp. 199-202; Modéer, Kjell Åke 1996 p. 193, and for recent criticism of the extent of the use of Roman law in the Svea Court of Appeal, Trolle Önnerfors, Elsa 2013 pp. 350-351. See also Heikki Pihlajamäki’s and Jussi Sallila’s chapters in this book.
the svea court of appeal in the early modern period 32 have probably been created so free from foreign influences as the Court of Appeal through the Ordinance of Judicial Procedure.”50 Some have seen the influence of the Parisianparlement51 or the Dutch courts,52 while others have considered the examples of the German Hofgerichte and the Reichskammergericht to have been especially important.53 Thus researchers are relatively unanimous about the great importance of the establishment of the courts of appeal as means of better enforcing the legal revolution. This largely corresponds with the results on research done on many other parts of late medieval and early modern Europe: the founding of superior courts and the establishment of a hierarchy of courts was an important feature of state formation and centralization.54 However, the success of the concentration of justice as a means of centralization of princely power usually required maintenance of the jurisdictional boundaries of the courts because otherwise the judicial hierarchy would have been eroded.55 In German lands, the latter half of the fifteenth and the early century saw a veritable string of Hofgerichtsordnungen heralding a phase of “determined centralization” and the “construction of central judicial institutions” in the new appeal style in the principalities.56 While it has been observed that the founding of theReichskammergericht, the Imperial Chamber Court of the Holy Roman Empire in 1495 served more to weaken imperial authority than to strengthen it, this was not the case for several German territorial states such as Hesse, or the Papal Rotain Rome, for example.57 The influence of the Reichskammergericht on other superior courts of Europe was to manifest itself in other ways; for example, it served as a model for later court ordinances, and indeed, both it and other courts mo50 Westman, Karl Gustaf 1934 p. 50: “Få institutioner torde ha tillskapats så fritt från utländsk påverkan som hovrätten genom rättegångsordinantian.” 51 For French influences, see Haralds, Hj. 1914 pp. 123-129; Haralds, Hj. 1927 pp. 35-37, 41, 44-45. 52 For possible Dutch influence, see Petrén, Sture 1945 p. 184. 53 E.g., Almquist, Jan Eric 1940 esp. pp. 475-476; Petrén, Sture 1964 pp. 22-24, 57-58. See also Pihlajamäki, Heikki 2004 pp. 269-272; Inger, Göran 1986 p. 117; Westman, Karl Gustaf 1934 p. 50. 54 E.g., Godfrey, A.M. 2009 pp. 444-449. 55 See, e.g., Kagan, Henry L. 1981 pp. 32-33. 56 Nehlsen-von Stryk, Karin 1997 pp. 147-148, 154-156: in the Electorate of the Palatinate (Kurpfalz, 1462), Württenberg (1475), Rhineland-Palatinate (1476), Hesse (1500) and Baden (1509). 57 Nehlsen-von Stryk, Karin 1997 esp. pp. 147-157; Salonen, Kirsi 2012 esp. pp. 42-64.
general background – mia korpiola 33 delled on it came to represent legal modernity and advancement in comparison with the princely high courts established earlier.58 Sweden, influenced by German examples especially, fits the trend well. In fact, it had been assessed that the “Swedish development of Supreme Court exposed the country to a Europeanization process that started in the first half of the sixteenth century and ended with the Absolutism in the 1680s.”59 As has been observed, Swedish medieval state formation “was to a great extent a matter of the king acquiring control over communities or at least establishing certain instruments of power over them.” Accordingly, “gaining control over jurisdiction rather than over legislation” was at the heart of royal judicial power. This was only partially achieved.60 Feudal or patrimonial courts hardly existed in medieval Sweden in comparison to many other parts of Europe of the time. While the jurisdictional layout of the country was relatively simple, the sources of law were correspondingly fewer than in much of Central and Southern Europe. In later medieval Sweden, the judiciary was manned by laymen who had been nominated by the local communities and appointed by the king. The district judge (häradshövding), who was usually a local nobleman, was obliged to convene the local assizes three times a year, which the medieval laws specified. In addition to the ordinary district court sessions in the winter, summer and autumn, extraordinary assizes could be convened if certain serious crimes had taken place in the meanwhile or if the king convened a court session by letter or messenger.61 According to the mid-four58 Nehlsen-von Stryk, Karin 1997 pp. 147-148. 59 Modéer, Kjell Åke 1996 p. 193. 60 Lindkvist, Thomas 1997 pp. 225, 227. 61 Magnus Erikssons landslag, eds. Holmbäck, Åke – Wessén, Elias (hereafter MEL), Rättegångsbalken (hereafter R, Chapter on Procedure) 12, p. 163 and R 7, pp. 161-162. The winter assizes were to be held during a period from the “twentieth day after Christmas until the nine-week Lent” (i.e., roughly between mid-January until early February), the summer assizes from between “the mass of St. Botolf until St. Olof ’s Day” (i.e., roughly between mid-June and the end of July), while the autumn assizes were to be convened between “the Mass of St. Michael until the Advent” (the end of September and the end of November). In the 1442 law, these were identical for the autumn and winter assizes, while the summer assizes were to be held earlier in the period between Sweden and its Medieval Judicial System: Problems of the Sixteenth Century
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