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Central Courts in Early Modern Europe and the Americas

Editors: Godfrey, A.M. | Rhee, C.H. van

Comparative Studies in Continental and Anglo-American Legal History, Vol. 34

(2020)

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About The Author

A. M. Godfrey is Professor of Legal History at the University of Glasgow. His research and teaching interests are in legal history and the law of obligations. His main research field is the history of central justice, law courts, jurisdiction and dispute settlement in medieval and early modern Scotland. He has published extensively on the origins and development of the Court of Session, on the foundation of the College of Justice in sixteenth-century Scotland, and on early modern litigation and arbitration. With Heikki Pihlajamäki and Markus D. Dubber he has co-edited »The Oxford Handbook of European Legal History« (2018). He is a member of the editorial committee and former editor of »The Journal of Legal History«. Prof. Dr. C.H. (Remco) van Rhee is Professor of European Legal History and Comparative Civil Procedure at Maastricht University in the Netherlands.

Abstract

The intimate connection between medieval royal government and the administration of justice led to a new generation of centralized law courts emerging in early modern Europe. Some were newly created institutions, but often they were associated with the evolution of the judicial role of royal councils, or equivalent bodies, which sat outside the ordinary course of justice. Typically these were empowered on behalf of the sovereign to make interventions in legal process on grounds of equity. Legal change of this kind was connected with the development of the state, and reflected the way that enhancement in the exercise of centralized judicial authority could be a powerful force reshaping the administration of justice more generally. The contributions to this book seek to examine how such newly created or reformed central judicial bodies (in Europe but also to some extent in European colonial settlement in the Americas) became integrated into the wider structures of jurisdiction within states, with a superior or even supreme jurisdiction. A particular emphasis is given to exploring how their jurisdiction and authority related to other more political institutions of central governance with an adjudicative role, such as parliaments or privy councils.

Table of Contents

Section Title Page Action Price
Preface 5
Table of Contents 7
A. M. Godfrey / C. H. van Rhee: Introduction 9
1. Central courts 9
2. Jurisdiction 17
(a) Defining central court jurisdiction 17
(b) Jurisdictional change conditioned by wider political context 18
(c) Shaping of jurisdiction through innovations in procedure and remedies 19
(d) Importance of appeals in developing supreme jurisdiction 19
(e) General or supplementary models of central jurisdiction 20
(f) Contesting and declining jurisdiction 20
(g) Jurisdictional complexity and institutional competition 21
(h) Limits on jurisdiction 22
(j) Central jurisdiction and unlocking the procedural rigidity of medieval legal process 24
3. Central courts, privy councils and parliaments 24
(a) Relieving the burden of judicial work on royal councils 25
(b) Privy councils in relation to the jurisdiction of ordinary courts 26
(c) The indeterminacy of residual jurisdiction: blurred division between executive and judicial bodies 28
(d) Lack of unified ordinary jurisdiction balanced by development of extraordinary jurisdiction 30
(e) Personal intervention by the monarch and the exercise of grace 31
(f) Privy councils and jurisdictional conflict 31
Conclusion 33
Bibliography 34
K. Salonen: The Sacra Romana Rota 37
1. What was the medieval Sacra Romana Rota? 37
2. The birth and development of the Sacra Romana Rota 40
3. Jurisdiction of the Sacra Romana Rota 44
4. The role of the Rota in the papal administration 54
Conclusions 61
Bibliography 62
N. G. Jones: The English Court of Chancery 67
Introduction 68
(a) Central court jurisdiction in England, 1200–1700 68
(b) The location and staffing of the Court of Chancery 71
1. The development of the Court of Chancery 73
(a) The general relationship between the courts and royal exercise of judicial authority 73
(b) The Court of Chancery as a new institution 74
(c) A court with political authority? 75
(d) The court’s role in centralisation or decentralisation of judicial structures and jurisdiction 76
2. The court’s technical jurisdiction, and changes to it 77
(a) Rules on jurisdiction 77
(b) Changes in the application of existing remedies, and jurisdictional and procedural rules 85
(c) The court’s practice as compared with normative sources 88
(d) Contested jurisdiction 89
(e) Acknowledgment of jurisdictional change, or of jurisdictional problems 95
3. The court’s relationship to the Privy Council, Parliament, and other jurisdictions 100
(a) Relationship with Parliament and the Privy Council 100
(b) Interactions between superior jurisdictions 103
(c) Procedures facilitating the transfer of cases between jurisdictions 109
Conclusions 110
(a) Assertion of jurisdiction? 110
(b) Promotion of civil justice 111
(c) Contribution to the development of state institutions 114
Bibliography 115
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
Introduction 151
1. Political context for the development of the court 155
2. Jurisdiction of the court 156
(a) Litigation and contested jurisdiction 160
(b) Jurisdiction and the College of Justice 162
3. Relationship between central jurisdictions 166
(a) The division of jurisdiction after 1532 168
(b) The Session as Judge Ordinary 172
(c) The category of civil causes 175
(d) The jurisdiction of the Privy Council 176
(e) Remits from Privy Council to the Session 178
Conclusion 182
Bibliography 184
J. D. Ford: Adjudication in the Scottish Parliament, 1532–1707 189
Bibliography 220
P. Oestmann: The highest courts of the Holy Roman Empire: Imperial Chamber Court and Imperial Aulic Council 225
1. Overview of highest courts in medieval and early modern times 225
2. Political contexts for the highest courts’ establishment and development 230
3. Technical jurisdiction of the highest imperial courts; changes over time in the context of the overall structure of courts and jurisdiction 239
4. Relation between the highest courts and territorial privy councils and parliaments 264
Conclusions 271
Bibliography 273
D. Tamm: The King in Council and the Supreme Court in Denmark, 1537–1660 287
1. The king and his court 287
2. Justice as a royal attribute 291
3. Categorizing the cases 293
4. The judges and the court 294
5. Judges and legislators 298
6. The King’s Court and other Danish courts 300
7. Doing justice 302
Bibliography 303
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
Introduction 351
1. The Court of Appeal in political context 354
2. The jurisdiction of the court 358
3. The revision procedure 369
Conclusions 374
Bibliography 375
A. Wijffels: The supreme judicature in the Habsburg Netherlands 377
1. Political context 377
2. The Ancien Régime’s multi-layered system of public governance and courts 378
3. The territorial prince’s higher courts 380
4. The Great Council of Malines 383
5. The Privy Council 387
6. Supreme judicature and the law-making process 393
Conclusion – a tentative comparative outlook 394
Bibliography 396
C. H. van Rhee: Supreme judicature in Holland, Zeeland and West-Friesland after the Dutch Revolt, 1582–1795 403
Introduction 403
1. Two superior courts 404
2. Other bodies exercising superior justice in Holland, Zeeland and West-Friesland: A patchwork of competences 410
Conclusion 414
Bibliography 416
D. Freda: The Sacro Regio Consiglio of Naples, 15th–17th century 419
1. The reorganization of the courts of the Kingdom of Naples: the Sacro Regio Consiglio 419
2. ‘Ista est nova decisio Sacri Consilii, quae habet vim legis, et sic facit ius’ 422
3. The other great tribunals of the Neapolitan Kingdom 426
4. The normative chaos: the prammatiche 429
5. Rise and fall of a superior court: the Sacro Regio Consiglio and the Consiglio Collaterale 432
Bibliography 436
I. Czeguhn: The history of the supreme courts in the Iberian peninsula from the 14th century to the 18th century 439
1. Developments in the Kingdom of Aragón 439
(a) The Justicia in the Kingdom of Aragón 439
(b) The Audiencia and the Consejo Real in the Kingdom of Aragón 442
2. Developments in the Kingdom of Castile 444
3. The Consejo Real (Royal Council of Castile) in the sixteenth century 450
4. The reforms of the Bourbons: Impulse for the unification of the judiciary 457
Bibliography 459
L. López Valencia: The Royal and Supreme Council of the Indies: the Supreme Court of New Spain 463
1. Introduction: Spanish polysynody 463
2. The Royal and Supreme Council of the Indies 470
(a) Regulation 473
(b) Composition 477
(aa) The president of the Royal and Supreme Council of the Indies 477
(bb) Councillors 482
(cc) Powers of the councillors 486
(dd) Juntas and commissions 491
(ee) The Grand Junta of Competencies 491
(ff) The General Board of Commerce and Currency 493
(gg) The Council of the Holy Crusades 493
(hh) The Fiscal 493
(ii) The Grand Chancellor of the Indies 494
(jj) The Secretariats of Council 495
(kk) The Chamber of the Indies 498
(ll) The Chamber Clerk’s Office 499
(mm) Relatores (rapporteurs) 500
(nn) Attorney, advocate of the poor and marshals 500
(oo) Functionaries entrusted with the Council’s finances 502
(pp) Other officials 502
(c) Functions 502
(aa) Government of the West Indies 504
(bb) Administration of Indian justice 505
(d) The final phase 508
Conclusions 508
Bibliography 511
S. Dauchy: The Sovereign Council of New France, 1663–1760 517
1. A colonial court modelled on the metropolitan high courts 518
2. A judicial and legal system adapted to the requirements of local conditions 520
3. A colonial high court under royal guardianship 523
Conclusion 526
Bibliography 527
W. H. Bryson: The General Court of Virginia, 1619–1776 531
Introduction 531
1. Origin and jurisdiction 532
2. Appeals from the County Courts 534
3. Appeals to the General Assembly 535
4. Appeals to the Privy Council 537
5. Denouement 538
Discussion and conclusion 539
Bibliography 540
List of contributors 543