The Reorganisation of the Livonian Judiciary Under the Swedish Rule
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chapter 3 The Reorganisation of the Livonian Judiciary under the Swedish Rule 3.1 The Alternatives: Colonial Systems and Their Judicial Organisations Recent research has described early modern states in different ways.1 Refer- ring to territorial aspects of the state, historians use the term “composite state.” The term appears in connection to federative and confederative polities since Pufendorf, but was coined in its modern meaning by H.G. Koenigsberger.2 Historians see the composite state as a way of combining some of the huge number of independent or quasi-independent medieval polities. Lacking the strength to unify completely all of the territories, early modern princes resort- ed to the composite state, under the umbrella of which the different territories were allowed to retain differing degrees of independence.3 For Koenigsberger, “most states in the early modern period were composite states, including more than one country under the sovereignty of one ruler.” Composite states came in two categories: those whose parts were separated by other states or by the sea (such as the Spanish Habsburg monarchy or Brandenburg-Prussia), and contiguous composite states (such as England and Wales, or Poland and Lithuania).4 J.H. Elliott then developed the idea of “com- posite monarchies” (as he called them) further, exploring in detail the rea- sons for their birth and survival, and the different modes in which composite 1 A summary of the different theories of Max Weber, Otto Hintze, Charles Tilly, and some oth- ers is Harald Gustafsson, “The Conglomerate State: A Perspective on State Formation in Early Modern Europe,” Scandinavian Studies in History 23 (1998), 189–210. 2 H.G. Koenigsberger, “Monarchies and Parliaments in Early Modern Europe: dominium regale or dominium politicum et regale,” Theory and Society 5 (1978), 191–217; H.G. Koenigsberger, “Dominium Regale or Dominium Politicum et Regale,” in H.G. Koenigsberger, Politicians and Virtuosi: Essays in Early Modern History (London: The Hambledon Press, 1986). 3 See Daniel H. Nexon, The Struggle for Power in Early Modern Europe: Religious Conflict, Dynas- tic Empires & International Change (Princeton: Princeton University Press, 2011), 70–71. See also, Hendrik Spruyt, The Sovereign State and Its Competitors: An Analysis of Systems Change (Princeton: Princeton University Press, 1994); and Charles Tilly, Coercion, Capital, and Euro- pean States, ad 990–1992 (Cambridge: Blackwell, 1992); James Muldoon, Empire and Order: The Concept of Empire, 800–1800 (New York: St. Martin’s, 1999). 4 Koenigsberger, “Monarchies and Parliaments.” © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004331532_004 This is an open access chapter distributed under the terms of the CC BY-NC-ND 4.0 license.Heikki Pihlajamäki - 9789004331532 Downloaded from Brill.com09/28/2021 06:17:55AM via free access <UN> 86 chapter 3 monarchies appeared in the early modern world. Elliott refers to the derecho in- diano scholar Juan Solórzano y Pereira (1575–1655),5 who in his Política Indiana (1658) divided newly acquired territories in two classes. In “accessory unions,” the acquired territory became legally a part of the acquiring state, the laws of which now governed the new lands as well. In unions aeque principaliter, the constituent kingdoms continued as separate entities, with their own laws and privileges.6 “The greatest advantage,” says Elliott, “of union aeque principaliter was that by ensuring the survival of their customary laws and institutions it made more palatable to the inhabitants the kind of transfer of territory that was inherent in the international dynastic game.”7 Composite states were often layered, in that their different parts consisted themselves of several territories, held together by not much else than a com- mon ruler: “Each territory – or rather the social elite of each territory – had its distinctive relation to the ruler, its privileges, its own law code, its administra- tive system staffed by that same local elite, and often its own estate assembly.”8 All composite states share elements of indirect rule, in which the local authori- ties enjoy some degree of autonomy over the local affairs.9 Conceptually, then, composite states differ little from empires, which have been defined as “large political units, expansionist or with a memory of power extended over space, polities that maintain distinction and hierarchy as they incorporate people.”10 Empires do not need to have an emperor.11 In everyday terminology, the term “empire” may of course evoke the image of a large combination of territories, whereas a composite state can be small. The difference is vague nevertheless, and the two terms can well be used as synonyms. Early modern empires or composite states were by nature expanding and thus often colonizing states. At first glance, Sweden’s conquest of Livonia 5 On Juan Solórzano Pereira, see Enrique García Hernán, Consejero de ambos mundos: Vida y obra de Juan de Solórzano Pereira (1575–1655) (Madrid: Fundación Mapfre, 2007). 6 Juan Solórzano Pereira, Política Indiana (Madrid, 1658), 4.19.37. 7 J.H. Elliott, “A Europe of Composite Monarchs,” Past & Present 137 (1992), 48–71, 53. 8 Gustafsson, “The Conglomerate State,” 194. Gustafsson uses the term “conglomerate” states, without referring to Koenigsberger or Elliott for some reason. On Sweden as a con- glomerate state, see also Tuchtenhagen, Zentralstaat und Provinz, 440–441. 9 Muldoon, Empire and Order, 119; Nexon, The Struggle for Power in Early Modern Europe, 71–72. 10 Burbank and Cooper, Empires in World History, 8. 11 The leading theoreticians of the empire, Jane Burbank and Frederick Cooper, do not men- tion the emperor in the definition of the empire, and they have logically no problem in treating Republican Rome, the United States, and Communist Russia as empires. See Bur- bank and Cooper, Empires in World History, 8–11, 24–28, 251–271, 393–398. Heikki Pihlajamäki - 9789004331532 Downloaded from Brill.com09/28/2021 06:17:55AM via free access <UN> Reorganisation of Livonian Judiciary under Swedish Rule 87 differs from what is traditionally conceived of as colonization. Spain’s con- quest of Central and South America, England’s conquest of its North American colonies, or Portugal’s conquest of Brazil or its Asian possessions – the “clas- sic” cases of colonization – can be characterized as professional legal orders assuming domination over traditional, non-professional legal orders.12 As re- gards all of these cases, legal domination was very much in conjunction with a military suppression and what is more, with more or less massive founding of colonies – as the name “colonization” implies. The medieval personality prin- ciple was followed: the colonizers took their law with them, just as they took their language and culture.13 The case of Swedish Livonia was demographically different. No large groups of Swedish peasants or town-dwellers immigrated to the conquered territories. The most visible group of Swedes in Livonia were high aristocrats, such as Jacob de la Gardie and Axel Oxenstierna, who were enfeoffed large estates as rewards for their military services, and bureaucrats who came to occupy certain key positions in the administration. The early modern states – whether called composite states or empires – aimed at growth in two ways: structurally and territorially. The logic of growth led the early modern states to territorial growth, although this was by no means an early modern invention. The early modern state needed resources, which before industrialism meant agrarian land, urban economies, and other humane and material resources. Territorial conquests were an efficient way of achieving these resources.14 Structural growth meant that the early modern state aimed at reducing, within its traditional boundaries, all competing pow- ers such as independent cities, feudal enclaves, and other centres of power.15 Seventeenth-century Sweden was typically such a composite state geared at both structural and territorial expansion, with possessions not only in the region inhabited by speakers of the Swedish language, but also in Finland, the 12 The terminology is introduced in Ugo Mattei, “Three Patterns of Law: Taxonomy and Change in the World’s Legal System,” The American Journal of Comparative Law 45 (1997), 5–44. 13 Medieval German laws, such as the Mirror of Saxony and the law of Magdeburg are the paradigmatic cases in point. See Ernst Eichler and Heiner Lück (eds.), Rechts- und Sprachtransfer in Mittel- und Ostmitteleuropa: Sachsenspiegel und Magdeburger Recht (Berlin: Walter de Gruyter, 2008). 14 See Tuchtenhagen, Zentralstaat und Provinz, 440. 15 Wolfgang Reinhard and Anette Völker-Rasor use the German term “deepening” (“Verdich- tung”) of the early modern state to describe this phenomenon. Wolfgang Reinhard, “Das Wachstum der Staatsgewalt: Historische Reflexionen,” Staat 28 (1992), 59–75; Anette Völk- er-Rasor, “Nach 1648: Verdichtung und Herrschaft,” in Anette Völker-Rasor (ed.), Frühe Neuzeit (München: Oldenbourg, 2000), 35–52. Heikki Pihlajamäki - 9789004331532 Downloaded from Brill.com09/28/2021 06:17:55AM via free access <UN> 88 chapter 3 Baltic area, and Germany. The basic composition of the Swedish state thus did not differ essentially from other composite states of the early modern period, such as France, Spain, or England. Each and every time a European state man- aged to add new territories to the already existing conglomerate, either by war or by inheritance, the conditions of addition were separately negotiated and decided. Complete incorporation was an exception rather than the rule, and the annexed territory was usually allowed to keep its constitutional arrange- ment, general law, judicial system, and church organization.16 When observed as composite states, the difference between colonial powers and other early modern states diminishes if not disappears. As state construc- tions, England, Spain, and Portugal did not fundamentally differ from Sweden, Denmark, and Russia. They all aimed at both structural and territorial growth, some with greater success than others. In all these countries, structural and territorial growth was intertwined.