Conquest and the Law in Swedish Livonia (ca. 1630–1710)
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Editors
Jón Viðar Sigurðsson (Oslo) Ingvild Øye (Bergen) Piotr Gorecki (University of California at Riverside) Steve Murdoch (St. Andrews) Cordelia Heß (Gothenburg) Anne Pedersen (National Museum of Denmark)
VOLUME 77
The titles published in this series are listed at brill.com/nw
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A Case of Legal Pluralism in Early Modern Europe
By
Heikki Pihlajamäki
LEIDEN | BOSTON
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This title is published in Open Access with the support of the University of Helsinki Library.
This is an open access title distributed under the terms of the CC BY-NC-ND 4.0 license, which permits any non-commercial use, distribution, and reproduction in any medium, provided no alterations are made and the original author(s) and source are credited. Further information and the complete license text can be found at
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The terms of the CC license apply only to the original material. The use of material from other sources (indicated by a reference) such as diagrams, illustrations, photos and text samples may require further permission from the respective copyright holder.
Cover illustration: Livoniae Nova Descriptio, cartographers: Johannes Portantius and Abraham Ortelius (Antwerp 1574). Collection: National Library of Estonia, digital archive digar (http://www.digar.ee/arhiiv/ nlib-digar:977, accessed 18 August 2016).
Library of Congress Cataloging-in-Publication Data
Names: Pihlajamäki, Heikki, 1961- author. Title: Conquest and the law in Swedish Livonia (ca. 1630-1710) : a case of legal pluralism in early modern Europe / By Heikki Pihlajamäki. Description: Leiden : Boston, 2017. | Series: The northern world ; 77 | Includes bibliographical references and index. Identifiers: LCCN 2016046362 (print) | LCCN 2016046740 (ebook) | ISBN 9789004331525 (hardback : alk. paper) | ISBN 9789004331532 (E-book) Subjects: LCSH: Law--Livonia--History. | Law--Latvia--History. | Law--Sweden--Hisory. | Law--Estonia--History. | Legal polycentricity--Europe, Northern--History. Classification: LCC KJC530 .P55 2017 (print) | LCC KJC530 (ebook) | DDC 349.479809/032--dc23 LC record available at https://lccn.loc.gov/2016046362
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1569-1462 isbn 978-90-04-33152-5 (hardback) isbn 978-90-04-33153-2 (e-book)
Copyright 2017 by the Authors. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. Koninklijke Brill NV reserves the right to protect the publication against unauthorized use and to authorize dissemination by means of offprints, legitimate photocopies, microform editions, reprints, translations, and secondary information sources, such as abstracting and indexing services including databases. Requests for commercial re-use, use of parts of the publication, and/or translations must be addressed to Koninklijke Brill NV.
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Acknowledgements vii
1 Introduction 1 1.1 The Research Questions 1 1.2 Archival Material 10 1.3 Previous Research 13 1.4 The Structure of the Book 18
2 The Outset: The Livonian and Swedish Legal Orders at the Time of the Swedish Conquest 21 2.1 Livonian Administration, Judiciary, and the Legal Procedure before the Swedish Conquest 21 2.2 Livonian Law and the Legal Sources: The European Context 41 2.3 Swedish Law before the Conquest of Livonia 64 2.4 Summary 82
3 The Reorganisation of the Livonian Judiciary under the Swedish Rule 85 3.1 The Alternatives: Colonial Systems and Their Judicial Organisations 85 3.2 Sweden’s Other Overseas Possessions: Organizing the Judiciary in Estonia and the Reich 94 3.3 Reforming the Livonian Judicial Structure 100 3.4 The Personnel in Charge: Judges, Lawyers, and Administrators 135 3.5 Summary 149
4 The Procedure in the Livonian Courts of the Swedish Era 151 4.1 The Classification of Cases into Civil and Criminal 151 4.2 The Civil Procedure in the Lower Courts 153 4.3 The Criminal Procedure in the Lower Courts 172 4.4 The Cases and the Procedure at the High Court of Dorpat 216 4.5 The Revision Procedure 228 4.6 Summary: Legal Procedure in Seventeenth-Century Livonia 235
5 Transplanting Swedish Law? The Legal Sources at the Livonian Courts 238 5.1 The Theory of Legal Spheres 238 5.2 The Ius Commune in the Livonian Court Records 239
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5.3 The Influence of Swedish Law in Livonia 244 5.4 The Livonian Legal Sources 246 5.5 Divine Law and Natural Law 248 5.6 The Theory and the Practice of Legal Sources: Europe and Livonia 249
6 Conclusions 256 6.1 The Starting Point: Livonian and Swedish Law before the Conquest 256 6.2 The Organization of the Judiciary in Swedish Livonia 258 6.3 The Judicial Procedure 259 6.4 Legal Sources in the Courts of Swedish Livonia 262
Sources and Bibliography 265 Archival Sources 265 Printed Sources 265 Literature 266 Index 291
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This book has been long coming. The initial work was a project to examine the archives of the Livonian High Court (Sw. hovrätt), one of the oldest high courts established in the Swedish realm in the seventeenth century. It soon became evident, however, that the functions of the High Court could not be understood without setting them in a larger context – that of the entire new judiciary which was emerging after Sweden had conquered Livonia. As is so often the case in scholarship, the end product looks rather different to that which had been envisaged at the outset. At this point, it is my pleasure to thank people who have helped along the way. I do not think I would ever have embarked on the first archival trips to the Latvian Historical State Archives in Riga had it not been for Pia Letto-Vanamo. We delved into the High Court’s archive together, and the results of those first trips were also published in a co-authored article. I benefited a great deal from Pia’s expertise in seventeenth-century legal history and sources, which were not my strong point at the time. Because of her patience and assistance in the early stages, the many trips I made to the beautiful city of Riga afterwards were much easier. Tartu, which I like to think of as the spiritual capital of Estonia, has been just as fundamental for this study as Riga. Mart Kuldkepp spent innumerable hours at the Estonian State Archives, collecting material from the Livonian lower court archives for this study. Mart was always reliable, knowledgeable – and extremely efficient. The personnel in both the Latvian and the Estonian archives deserve special thanks for their flexibility and understanding. Marju Luts, my old Tartu connection and good friend, helped me enormously in un- derstanding the Estonian and Baltic past and present a little better. During the past few years, I have been involved in many other projects and scholarly undertakings as well. If this work has one common denomina- tor, it is the comparative method in legal history. Comparative legal history has emerged forcefully in recent years, and many of my good friends and col- leagues in different countries deserve thanks for drawing me into these cir- cles. I would be a different scholar had I never come to know people such as Albrecht Cordes, Serge Dauchy, Dave De ruysscher, Seán Donlan, Markus Dub- ber, Thomas Duve, Dirk Heirbaut, Jaakko Husa, Georges Martyn, Aniceto Mas- ferrer, Dag Michalsen, Kjell Åke Modéer, Anthony Musson, Peter Oestmann, Mathias Schmoeckel, Ditlev Tamm, Alain Wijffels, and James Whitman. Many of them have been instrumental in founding the European Society for Com- parative Legal History and its journal Comparative Legal History, which have grown to be vital frameworks for me.
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The vibrant community of legal historians at the Faculty of Law at the Uni- versity of Helsinki has been an important home base for me. Jukka Kekkonen, Jussi Sallila, Juhana Salojärvi, Toni Malminen, and all my doctoral students – you know what I mean. During my five-year period as academy research fellow at the Academy of Finland, I enjoyed their generous funding, which made research trips and re- search help possible, not to mention the benefit of being entirely free from teaching. The last phases in making a book are always the most arduous and nerve- consuming. As my research assistant, Sofia Söderholm has helped me with ev- erything that needed to be done: a true administrative talent, Sofia has looked for literature, proofread different versions, helped with the index, and kept my files in order. With enormous accuracy and speed, Sara Elin Roberts copy- edited the manuscript and corrected my English. I am much indebted to Sara not only for her technical and linguistic corrections, but for her comments on the substance as well. Marcella Mulder at Brill has shown great patience, flexibility, and expertise throughout. Last but not least, Mia Korpiola has read several versions of the manuscript and thus made this a much better book. However, it has not only been about reading texts. A passionate legal historian, Mia has always been ready to engage in discussions on the nature of compara- tive legal history, and Scandinavian and Baltic legal history. Mia’s wide knowl- edge of literature, and her deep understanding of European legal history and archival work never cease to impress me. Despite all these thanks, all remain- ing mistakes are my own responsibility.
Heikki Pihlajamäki Helsinki, August 15, 2016
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