Central Courts in Early Modern Europe and the Americas
BOOK
Cite BOOK
Style
Godfrey, A., Rhee, C. (Eds.) (2020). Central Courts in Early Modern Europe and the Americas. Duncker & Humblot. https://doi.org/10.3790/978-3-428-58033-0
Godfrey, A.M. and Rhee, C.H. van. Central Courts in Early Modern Europe and the Americas. Duncker & Humblot, 2020. Book. https://doi.org/10.3790/978-3-428-58033-0
Godfrey, A, Rhee, C (eds.) (2020): Central Courts in Early Modern Europe and the Americas, Duncker & Humblot, [online] https://doi.org/10.3790/978-3-428-58033-0
Format
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)
Additional Information
Book Details
Pricing
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 |