the svea court of appeal in the early modern period 224 Ordinance, were to stick to the Swedish laws and were expressly forbidden to use “foreign,” or Roman, law. Such a simple solution was not, however, applicable to Livonia. In the conquered province, Roman law had gained a considerable bridgehead before the Swedes came, in addition to which the conquerors had to come to terms with the local law as well. Solutions existed within the ambit of European law which had to be taken and to be transferred – giving them, as nearly always in the case of legal transfers, a necessary adjustment to the local needs. Given the basic solution of not incorporating Livonia closely into the realm, nothing was more natural for the Swedes than to take the common European model of legal spheres, theStatutentheorie, as the point of departure. 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 to the legal problem at hand, the solution was sought in the next largest sphere – and so on, until one eventually arrived at ius commune, providing the final “safety net.”607 Varieties of the statute theory were known in practically every major European country. The French with their Droit commun, the Spaniards withderecho 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 Europeanius commune.608 The statute theory was woven into ArticleXXIXof the so-calledVerbesserte Landgerichtsordnung of 1632, regulating the lower courts in the country side in the first place. According to this article, Livonian law came first, then Swedish, and then Roman law.609 Another point worth considering is the jurisdiction of the Courts of Appeal. Let us start with the Livonian norms and the Land Court Ordinance. According to Article 5 of theLCOof 1632, “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 belonged to the jurisdiction of the noble court.”610 This seemed to include everyone. 607 See Wiegand, Wolfgang 1977. 608 See Glenn, Patrick 2007. 609 The courts were to judge “erstlich nach lieffländischen Rechten löblichen Gewohnheiten, soweit dieselbe demWorte Gottes oder demKönigl. juri superioritatis nicht entgegen, wo dar aber nicht eine Gewißheit nicht vorhanden, nach Schwedischen Rechten, Constitutionen, Reichs-Abschieden, und Gebräuchen, so mit dem jure saniorum populorum communi einstimmig, sprechen und verabschieden,” Sammlung der Gesetze, vol. 2, ed. Buddenbrock, pp. 104-105.
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