chapter 1 Introduction 1.1 The Research Questions This is a book about an early modern territorial conquest and its consequences for the law. Livonia became part of Sweden through the Truce of Altmark in 1629. Before the truce, the region had belonged to Poland for almost 70 years. The second half of the sixteenth century and the first third of the seventeenth century were an era of almost continuous wars, under which the province suffered as a result of pest epidemics and hungers. When Livonia passed into Swedish hands, the region had therefore undergone significant economic, so- cial, and demographic changes. According to some calculations, the population of what is now modern Estonia had dropped from the 250,000–300,000 of the mid-sixteenth century to a third of that in the 1620s.1 The chronicle of Thomas Hiärne describes a pest epidemic in 1580 in a sombre way: “[…] within a short time period, an innumerable number of people had died of it, and there was not one town, castle, or village, where people did not lie sick […].”2 Because of the demographic changes, the manorial economy looked quite different after the Polish era to how it had looked before it. Many manors were completely or partly destroyed, and the surviving peasants had largely taken to other parts. The audit carried out by the Swedish crown in 1627 showed that in the 50 manors within the Bishopric of Dorpat, only 622 Haken3 were inhabited, and 1605 were deserted.4 1 Heldur Palli, “Miks eestlased jäid püsima,” Keel ja kirjandus 7 (1995), 475–483, 477; see also Alfred Soom, Der Herrenhof in Estland im 17. Jahrhundert (Lund: Skånska Centraltryckeriet, 1954), 36. 2 “[…] innerhalb kurtzer Zeit ein unzählich Volck daran gestorben, und nicht eine Stadt, Schloss oder Dorff gewesen, da nicht die Leute […] kranck gelegen; die Strassen und Märckte der Städte, alle Heer-Strassen und Dörffer waren gantz wüst von Volcke […].” Cited in Johan Kahk, Bauer und Baron im Baltikum: Versuch einer historisch-phänomenologischen Studie zum Thema “Gutherrschaft in den Ostseeprovinze” (Tallinn: Tallinna Raamatutrükikoda, 1999), 30. Unless otherwise specified, the English translations throughout the book are mine. 3 Haken was a land measurement typical in Livonia. Originally, haken referred to a tract of land which could be worked with one horse and plough. In different parts of the Livonia, haken could mean different things. As a result of the developing tax system, after 1500 a general tendency towards a uniform haken is discerned throughout Eastern Europe. See Ragnar Lilje- dahl, Svensk förvaltning i Livland 1617–1634 (Uppsala: Almqvist & Wiksell, 1933), 23–26. 4 Astaf von Transehe-Roseneck, Gutsherr und Bauer in Livland im 17. und 18. Jahrhundert (Straß- burg: K.J. Trübner, 1890), 6. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004331532_002 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.com09/25/2021 07:46:38AM via free access <UN> 2 chapter 1 As a result of the Great Northern War, Sweden lost Livonia to Russia. The loss went into effect through the Capitulation of Estonia and Livonia in 1710, and was finalised through the Treaty of Nystad in 1721. The major research question that looms behind the other, more specified questions of this work is: what happened to Livonian law during this “short Swedish seventeenth century”? At the beginning of the seventeenth century, the Swedish legal system, although it had been in contact with the Roman-canon ius commune since the thirteenth century, had retained much of its archaic features. Lawyers or learned judges were a rare sight in Swedish courts of law, and virtually no Swedish legal science existed. The University of Uppsala had been founded in 1477, but had been closed down during the turmoil of the Lutheran Refor- mation. The University had been reopened in the late sixteenth century, but mainly in order to train priests. Whatever “reception” of Roman law there had been in Sweden, the layer of learned law was thin.5 Compared to the heartlands of ius commune, the layer of learned law in Sweden would also remain thin until the nineteenth century. However, learned law emerged in some form, and the seventeenth century was the main period of the reception. As was the case everywhere in Europe, uni- versities contributed to this. A new institution of higher learning was estab- lished in Turku in 1630 and another in the heart of Livonia, Dorpat, in 1632. Like their predecessor in Uppsala, both new universities were founded mainly for pastoral training. All Swedish universities had law faculties as well, but their teaching personnel typically consisted of one professor only.6 It is no wonder that the universities, for a long time, did not constitute great centres of legal learning. Legal training was clearly not a priority for the Swed- ish crown. The law faculties did not, however, remain insignificant. The facul- ties gained impact not least because there was a connection between them and the high courts. If Swedish universities were founded late, Swedish high courts (hovrätter)7 came late as well. The first wave of European high courts 5 See Åke Malmström, Juridiska fakulteten i Uppsala: studier till fakultetens historia i, Den me- deltida fakulteten och dess historiska bakgrund (Uppsala: Uppsala universitet, 1976); and Åke Malmström, Juridiska fakulteten i Uppsala: studier till fakultetens historia ii, Den juridiska fakulteten under 1600-talet och i början av 1700-talet (Uppsala: Uppsala universitet, 1976). 6 Jan Eric Almquist, Svensk juridisk litteraturhistoria (Stockholm: Norstedt, 1946), 187, 199, 222; and Lars Björne, Patrioter och institutionalister: Den nordiska rättsvetenskapens historia, Del i: Tiden före 1815 (Lund: Institutet för rättshistorisk forskning, 1995), 15–51. 7 It is debatable whether the Swedish term hovrätt should be translated as “high court” or “appeals court.” These courts were instances of appeals in relation to lower courts, but on the other hand the institution was originally designed to handle the crown’s judicial duties. Moreover, a great part of their work, especially in Livonia, was devoted to first-instance cases Heikki Pihlajamäki - 9789004331532 Downloaded from Brill.com09/25/2021 07:46:38AM via free access <UN> Introduction 3 had started with the development of the Papal Curia from the eleventh cen- tury onwards, and with the founding of the Parlement of Paris and the English central courts at Westminster in the thirteenth century. The Grand Council of Mechelen and the Imperial Chamber Court of the Holy German Empire (Reichskammergericht) then followed in the fifteenth century.8 The first of the Swedish high courts was the Svea High Court in Stockholm, not far from Upp- sala, after which both Turku and Dorpat got high courts in 1623 and 1630, re- spectively.9 The Göta High Court, located in Jönköping, followed in 1634 and the High Court of Greifswald in Sweden’s German territories in 1655. The high courts in Stockholm, Turku, and Jönköping were places in which local univer- sity law students could gain practical experience as auskultanter, literally “lis- teners,” in order to qualify for lower court jobs.10 The high courts were also some of the most important channels through which the Swedish legal culture communicated with its European neighbours. If Sweden’s European connection came late and was not particularly deep, Livonia was different from early on. During the late Middle Ages and the Pol- ish period, the reception of Roman law had advanced considerably more there than in Sweden. David Hilchen’s Proposal for Livonian law of 1599, although never formally promulgated, is a good example of the extent to which Livonian law was integrated in the world of ius commune and especially its German vari- ant gemeines Recht.11 Until the founding of the University of Dorpat in 1630, of noblemen. I will therefore call these courts high courts throughout the study. The other option was chosen in articles of Mia Korpiola (ed.), The Svea High Court in the Early Mod- ern Period: Historical Reinterpretations and New Perspectives (Stockholm: Institutet för rättshistorisk forskning, 2014). 8 On the development of European high courts, see the articles in Alain Wijffels and C.H. (Remco) van Rhee (eds.), European Supreme Courts: A Portrait through History (Antwerpen: Maklu, 2013). 9 On the founding of the court see the recent account of Mia Korpiola, “A Safe Haven in the Shadow of War? The Founding and the raison d’être of the New Court, Based on its Early Activity,” in Mia Korpiola (ed.), The Svea High Court in the Early Modern Period: Historical Reinterpretations and New Perspectives (Stockholm: Institutet för rättshistorisk forskning, 2014), 55–108. 10 See David Gaunt, Utbildning till statens tjänst: en kollektivbiografi av stormaktstidens hov- rättsauskultanter (Uppsala: Almqvist & Wiksell, 1975). 11 The literature on ius commune is vast. See, for example, Francesco Calasso, Introduzione al Diritto commune (Milano: Giuffré, 1951); Paul Koschaker, Europa und das römische Recht (München: Beck, 1953); Franz Wieacker Privatrechtsgeschichte der Neuzeit (Göttingen: Vandenhoeck & Ruprecht, 1952); Helmut Coing, Die juristischen Auslegungsmethoden und die Lehren der allgemeinen Hermeneutik (Köln: Westdt. Verl., 1959); Hermann Lange, Heikki Pihlajamäki - 9789004331532 Downloaded from Brill.com09/25/2021 07:46:38AM via free access <UN> 4 chapter 1 however, Livonia had no universities, and it boasted no legal literature of its own. The linguistic and cultural ties of Livonia’s German-speaking elite had nev- ertheless joined the province to gemeines Recht. In addition to the linguistic and cultural ties came the political connection: until the dissolution of the Order State in 1561, Livonia remained part of the Holy Roman Empire of the German Nation. This connection had always been vague, however, as Livonia never belonged to the German Kingdom (Regnum Teutonicum) but only to the larger and more loosely defined Holy Roman Empire (Sacrum Imperium).