Courts
COURTS
Early modern law courts were multifunctional institutions whose reach extended far beyond the judicial branch of government. Throughout Europe, they held a wide range of administrative, governing, and policing powers, frequently making them a main channel of state administration. In eastern Europe, the courts were closely fused to the state bureaucracy and operated as the secure tools of crown authority. In western Europe, courts enjoyed varying levels of independence from the sovereign, but they nevertheless were active in maintaining daily order in both villages and state. Given the complex nature of early modern society, the judiciary was a key mechanism for conflict resolution not only among individuals, but among classes, estates, and orders. Law courts also served as a central elevator for social mobility. Buying or acquiring offices in the royal courts was an important stepping-stone into the gentry or the nobility, conferring honor, influence, and sometimes titles on the officeholder. Finally, judges served as the protectors of common law, customary laws, and privileges on behalf of society, and often actively defended those traditions against the encroachments of increasingly powerful sovereigns. Judges and lawyers in the courts were thus at the epicenter of several early modern rebellions and revolutions, including the French Fronde (1648–1653), the English Civil War (1642–1649), and the French Revolution (1789).
The law courts proved to be one of the most flexible and useful tools of governance available in western Europe, and the use of both elaborate law codes and a widespread court system to govern is one of the key factors in the development of the early modern state. Local seigneurial and royal courts helped to make village communities and towns largely self-governing, while provincial and regional courts often helped oversee the administration of large territories. At the pinnacle of the state, sovereign courts negotiated the privileges and competing claims of nobles, officials, and corporations. Despite the intense interest in recent decades in early modern crime and punishment, the vast majority of European courts' business was the regulation of civil society through contracts, laws, and customs. Courts thus provided limited opportunities for ordinary people to resolve their most pressing problems, especially those of family, property, and community, in a civil forum.
ORGANIZATION OF COURTS
The organization of the law courts in continental Europe was byzantine, full of overlapping jurisdictions that reflected both the organic growth of courts over time and the reality of competing claims to judicial sovereignty. Almost all European states had three major independent court systems: ecclesiastical courts to judge the religious crimes of clerics and parishioners, seigneurial or manorial courts that delivered justice to tenants (including the right to impose the death penalty for landlords exercising high justice), and state courts, which gradually began to encroach on the jurisdictions of the other two. Church jurisdiction eroded significantly from the sixteenth through the eighteenth centuries in many countries, but sovereigns faced a steeper challenge in dismantling the private jurisdictions of landlords, for whom courts were considered part of their property and family honor.
Outside of these three major systems, however, most corporations like towns, guilds, and officers' corps had the right to regulate their own members through internal courts and statutes. An enormous volume of early modern litigation was also resolved through formal and informal adjudication outside of the court system, though often brokered by notaries, lawyers, or even judges from the law courts.
SOVEREIGN OR SUPERIOR COURTS
Well before 1450, superior or sovereign courts had emerged out of the medieval king's household (the curia regis ) in many states. They developed into professionalized resident law courts that enjoyed relatively high degrees of independence on a day-today basis. In France, the sovereign Parlement of Paris was installed on the Île-de-la-Cité by 1300 and remained there even when the royal court was itinerant. Peers of France had the right to have their cases heard there in the first instance, and the court's judgments were unappealable (save to the king himself). The parlement's real strength, however, lay in the extent of its geographic and legal jurisdiction. The court could judge any civil or criminal case in its extensive domain (the lands originally held by the Capetian kings, about one-third of France) and heard appeals from the lower courts, making it one of the most inclusive jurisdictions in Europe. The parlement also had the right to register royal edicts before enforcing them, which gave magistrates opportunities to delay legislation or to remonstrate with the king. Although the parlementaires could neither legislate nor veto royal laws, they did issue a wide variety of administrative arrêts ('decrees') that gave them broad authority over public order.
The system of parlements was gradually extended to new provinces as they were added to the realm. In many recently acquired provinces, like Burgundy (1477) and Normandy (1499), existing ducal courts were simply transformed into sovereign parlements. By the late eighteenth century, France had thirteen parlements, each sovereign within its own jurisdiction. The Parlement of Paris, however, remained the superior member of the court system, and was often looked to for legal precedents. France thus had an extraordinarily dense corps of sovereign magistrates; there were roughly 240 parlementaires in Paris in the eighteenth century, and another thousand in the other sovereign courts.
By 1400 the French crown had appointed five varieties of sovereign courts to deal with different types of cases. Apart from the parlements, there were three sovereign financial courts: the Court of Aids (Cour des Aides) for tax cases, the Chamber of Accounts (Chambre de Comptes) for royal accounting disputes, and the Court of Monies (Cour de Monnaies) for monetary cases like counterfeiting. (Provinces with parlements typically had one or more of these sovereign financial courts as well.) Finally, the Grand Council decided jurisdictional disputes among the other courts and heard special political cases. Outside of these formal courts, the king, in his role as God's judge, always retained the right to hear cases, render judgment, and grant pardons in exceptional circumstances. For the most part, however, early modern French sovereigns increasingly left judging to a trained corps of jurists and lawyers.
One of the most prominent features of the French sovereign courts was that judgeships were both venal (bought by the official, sometimes for princely sums) and hereditary. Repeated fiscal crises of the French crown had early on led kings to the expedient of selling offices in their own administration, a habit that proved impossible to break. In 1604 Henry IV (ruled 1589–1610) allowed royal officers to pass offices on to their heirs or sell them in exchange for an annual fee (the paulette ), equal to one-sixtieth of the office value. Because of the high status of judging, it became axiomatic that the highest judgeships should only be held by nobles. Judgeships in the sovereign courts (all parlementaires and Masters in the Chamber of Accounts, for example) endowed personal nobility on their holders and eventually hereditary nobility on their families. The result was the emergence of a powerful "nobility of the robe" (for the long robes they wore in office), which became an increasingly wealthy, educated, and sometimes politically fractious elite. Robe nobles from the sovereign courts played important roles in the revolt of the Fronde as well as in the French Revolution in 1789, but they were an essential part of the backbone of national and provincial order in less contentious times.
Other continental regions experimented with different forms of sovereign courts. In the Holy Roman Empire, the Diet of Worms (the imperial parliament) created an imperial supreme court in 1495, an appellate bench for both territorial and urban jurisdictions. The magistrates also claimed original jurisdiction over a variety of civil and criminal cases, including cases involving corporations, cities, estates, and crimes against the state. In practice, however, the more powerful states of the empire continued to claim sovereign jurisdiction and did not recognize the imperial court's authority. Below the supreme court were a series of weaker imperial courts that were often regional in jurisdiction, and whose cases were increasingly appealed to the supreme court. As in France, these multiple appellate layers provided litigants with numerous political and legal avenues for pursuing their cases, and with abundant opportunities to exploit rivalries between jurisdictions.
England's law courts were far more successfully centralized than most continental courts. Three types of superior courts were based in and around London, each specializing in a different type of law: common law courts, equity courts, and royal prerogative courts. The three main royal courts sitting at London's Westminster Hall, the King's Bench, the Court of Common Pleas, and the Exchequer, primarily practiced common law. By 1500, Common Pleas was the busiest jurisdiction in England, hearing nearly fifty thousand cases a year at its peak. The court possessed jurisdiction over most civil cases, including property, rents, and debts. King's Bench originally enjoyed criminal jurisdiction, but its civil jurisdiction was expanded after the 1530s, allowing it also to hear the common pleas from most of England. By 1600 the two courts' civil jurisdiction was similar, although King's Bench still heard only one-third as many cases as Common Pleas. The Exchequer had its own small court for revenue cases or debt, but few litigants had the right to plead there until the late 1600s. Despite the centrality of the Westminster courts, there was a remarkably small group of judges on the bench: there were only about fifteen sovereign judges in England. Once points of law had been settled by the courts at Westminster, most cases returned to the counties to be tried by jury in the assize courts. All three superior common-law courts were united in the nineteenth century.
Apart from the central common-law courts, and developed partly in opposition to them, were the crown's prerogative courts. The infamous Court of Star Chamber, along with the Court of High Commission, allowed crown and church to investigate and prosecute powerful nobles or ecclesiastics outside of common law. (Most sixteenth-century cases tried in the prerogative courts actually involved powerful subjects prosecuting one another, but the courts were notoriously used by Archbishop Laud to prosecute nonconformists in the early seventeenth century.) Lastly, the Court of Chancery in London administered equity law to litigants and appellants. Equity (considered a branch of reason) gradually evolved into a formal set of legal principles by 1700 and was integrated into the common law by 1800.
During the legal revolution of the seventeenth century, England's superior court structure was radically streamlined. In 1641 Parliament abolished the prerogative courts, including Star Chamber, High Commission, and Requests, along with the royal court of wards and legal enclaves that had long been under the jurisdiction of the Councils of the North and of Wales. This streamlining of the law courts reflected an increasingly unified sovereignty under the leadership of Parliament in England, and it furthered an increasingly dominant common law.
In eastern Europe, law courts were more firmly integrated into the bureaucracy and had considerably less freedom of action than in most western states, but in the eighteenth century both Frederick II of Prussia (1748; ruled 1740–1786) and the Habsburgs in their own provinces (1749) gave the judiciary a more independent identity. Frederick II no longer allowed the bureaucracy to involve itself in judicial cases, and the Habsburgs set up a new ministry and supreme court, the Oberste Justizstelle, to distinguish justice from administration more clearly. In both states, however, there was a far less developed structure of rights, privileges, and laws outside the control of the crown or bureaucracy than in most western states. In Russia, the senate had evolved into a judicial body under Peter I (ruled 1682–1725), but in practice it heard only cases of the nobility. Moreover, Russian ukazy ('imperial decrees') and government ministry orders were neither codified nor published, making it difficult for any organized study of the law to develop. Repeated attempts to codify Russian law by Peter I, Elizabeth (ruled 1741–1762), and Catherine II (ruled 1762–1796) between 1700 and 1767 all came to naught. Local justice was dispensed to Russian serfs on their estates through land courts, and landowners were essentially a law unto themselves. Under such conditions, a relatively independent judiciary never developed into a key institution of civil society.
LOCAL COURTS
Law courts frequently became the main channel of local administration in western Europe during the sixteenth and seventeenth centuries. As the nobility deserted the countryside for the allure of royal courts or cities, the mantle of daily authority settled naturally on the shoulders of royal judges in many regions. In France, a pyramidal structure of local courts spread out beneath the sovereign courts (the parlement, Cour des Aides, and Chambre des Comptes) within each province. The main line of the judiciary ran from the provincial parlement to the lower appellate courts (the présidiaux, established under Henry II [ruled 1547–1559]) and from there to the bailiwick courts (bailliages in the north of France, sénéchaussées in the south and in Brittany). Bailiwicks were medieval jurisdictions that varied greatly in size, but they averaged roughly a hundred parishes by the later seventeenth century. In many regions there was a final layer of petty royal courts (vicomtés, or 'viscounts', or prévotés, 'provosts') under the bailiwick courts.
Each of these local royal courts heard both civil and criminal cases and could judge customary, royal, and Roman laws. (There were some jurisdictional distinctions between them; civil cases involving large sums of money were heard first in the présidial or in the parlement, for example.) Each royal court was required to have a judge (lieutenant général) and a royal attorney (procureur du roi), but most attracted a full complement of assistant judges, councillors (conseilleurs), and royal lawyers (avocats du roi), all venal offices. This meant that France's judiciary was perhaps the densest bureaucracy in early modern Europe, with provinces like Normandy or Brittany supporting several thousand officials and functionaries each.
Most royal judicial officials enjoyed considerable independence from the crown. While the state provided letters accepting candidates into office, in practice almost all local offices were passed between individual buyers, without the intervention of the crown. The king did set minimum educational requirements for judges and attorneys, but the corps accepting them was supposed to inquire into their qualifications, morals, and religious practices, allowing them to vet (and sometimes reject) candidates for a variety of reasons. Lower court offices tended to be significantly less expensive than judgeships in the sovereign courts, but they did not confer personal or hereditary nobility on their buyers. (Nevertheless, a significant number of bailiwick judges were already noble before buying a judgeship.) In theory, all lower court cases could be appealed up from the bailiwicks to the présidial or parlement, but in practice only infamous criminal cases and civil cases involving officers, nobles, or wealthy elites tended to be appealed there. The vast majority of litigation was settled within the bailiwick (jurisdiction of a lower-court judge).
The authority of local judges was considerable by the seventeenth century. In France, bailiwick judges and king's prosecutors were often the only resident royal officers in the countryside. They became administrators par excellence, supervising matters as diverse as the upkeep of bridges, roads, and chimneys, tavern hours, bread riots, and public order in general. They also policed markets, prices, and the guilds, performing essential economic regulation. In many regions they held minor military responsibilities, too, for raising the militia. Above the bailiwick judges, the magistrates in the provincial parlements (in tandem with the provincial Estates where they existed), also exercised a broad governing role in the countryside. But these magistrates only rarely intervened in local administration outside of the city where the parlement resided, and the bailiwick remained the central unit of local governance. Unlike in England, there was relatively little interaction between the sovereign courts of parlement and the lower courts that served the majority of the population. The professional and social gap between the two main levels of the judiciary widened after the middle of the seventeenth century, leaving local judges little role to play in national affairs.
Alongside the main royal courts in France, there were hundreds of specialized jurisdictions handling everything from tax cases (the élections ), crimes on the high roads, and army deserters (the maréchaussée, or mounted constabulary courts) to woods and waters cases (eaux et fôrets, or water and forest courts). In one district that covered a third of Normandy, there were more than seventy special royal jurisdictions outside the main (parliamentary) branch of the judiciary. These were further complicated by more than 228 seigneurial high justices and dozens of ecclesiastical courts, but the confusion was more apparent than real by the middle of the seventeenth century. Although the tax courts remained vigorous, cases from many specialized jurisdictions were gradually swallowed up by the bailiwick courts over the course of the seventeenth century, making the bailiwick courts an increasingly important center of gravity for local governance.
Although French and other continental courts have often been criticized as despotic institutions, run by venal officeholders and lacking juries or criminal defense lawyers, the reality was considerably more nuanced. Local courts were thoroughly embedded in local society through their officials, attorneys, and functionaries. Even a relatively modest bailiwick court might have between twenty and fifty minor functionaries and lawyers drawn from the ranks of farmers, cottagers, and even weavers. Notaries, solicitors, sergeants, ushers, jailers, keepers ofweights and measures—all anchored the courts in local society. Judges were typically drawn from owners of sieuries or seigneuries, the equivalent of the English gentry, and king's attorneys came from similar or slightly lower backgrounds. Criminal procedures and some civil procedures were deeply dependent on the willingness of witnesses in the community to come forward and give testimony. Finally, judges frequently used the flexible legal tools of equity (judicial reason, as opposed to statutory law), discretionary sentencing, and community reputation when deciding cases. French local courts rarely pronounced death sentences and even more rarely actually executed them, even for crimes in which capital punishment was allowed. In Spain, local judges who were also venal officials exercised considerable discretion in applying royal edicts (the Recopilación de los Leyes de España, or 'Compilation of Spanish Laws') and in executing a harsh penal code. Given that the primary function of these courts was to regulate property, family, and other civil cases according to customary laws, they often functioned reasonably well in stabilizing communities and families and in keeping public order.
In England, justices of the peace (JPs), like French bailiwick judges, had become the preeminent judicial and administrative officers in the counties by the late fourteenth century. Meeting four times a year in quarter sessions, usually in the county town, JPs initially heard felony indictments and judged misdemeanors. There were approximately five thousand of them in the counties. The English crown, seizing on the usefulness of these unpaid officials, passed over three hundred statutes by 1600 that expanded the justices' governing powers in every direction. They were responsible above all for keeping order in the countryside, including quelling riots, controlling vagabonds, punishing extortion, prosecuting poachers, and helping with the military muster when necessary. JPs regulated the local economy as well, setting wages and prices, licensing taverns, and regulating weights and measures. Social and religious regulation was an increasingly large part of their brief. Justices gradually became responsible for enforcing the poor laws, sumptuary legislation, and religious laws. Finally, they were essential to the financial machinery of the state, because tax collection in the counties was partly under their supervision.
During the sixteenth century, the growth of litigation and the increasing burden of their responsibilities led JPs to use petty sessions, often every six weeks, to transact business. The number of JPs also rose dramatically in the sixteenth century, to as many as eighty in some shires. Given their broad governing powers, JPs were almost universally drawn from the gentry and had to meet property qualifications in most cases. They were given their commissions annually by the crown (the Commission of the Peace), although they were usually chosen by the lord chancellor, and they could be dismissed for political reasons. By the seventeenth century, an important segment of the House of Commons was made up of local JPs, and those not serving in Parliament were still expected to play an important role during elections. Their ties to the national government, through the common law, the assize sessions, elections, and Parliament made them not only the backbone of local government, but the core of English national government.
Twice a year, judges and senior lawyers (sergeants-at-law) from the common-law courts in London held assize sessions in the counties, riding the six circuits of England. Spending one or two days in each county town, they heard both cases sent up by the local JPs and cases sent down by the common-law courts at Westminster for trial. By the sixteenth century they typically heard criminal felony cases (such as murder and treason) as well as civil lawsuits sent back for jury trial from the courts of Common Pleas and King's Bench. They asked grand juries to give presentments of any malefactors or suspects in the jurisdiction and sat with petty juries to pass judgment on civil and criminal cases. Trials were usually brief (sometimes lasting minutes), and criminal defendants were not allowed legal counsel. On the other hand, relatively few convicted criminals were actually hanged by the assizes for offenses that technically merited the death penalty. Executions in England declined dramatically after 1630.
One of the notable features of English justice was the use of petty and grand juries to establish the facts and decide on guilt or innocence in trials. Grand juries (or presentment juries) were called at each assize to present suspected criminals or crimes in the jurisdiction. Grand juries typically had twenty-three members, mostly drawn from the lesser gentry. If the members determined that there was a "true bill," or reasonable case to be heard, it was sent to the petty jury for judgment. Petty juries, comprised of twelve men (a number with religious overtones), were typically made up of yeoman farmers and occasionally husbandmen. They were impaneled by JPs at petty sessions and quarter sessions, as well as by circuit judges at the assizes. Common law required unanimity in verdicts by juries. Although possibly Norman in origin, juries were increasingly used after the church abolished trial by ordeal in 1215. The level of popular participation in the English law courts was further increased by the appointment of constables who were usually yeoman farmers and of lawyers who typically came from the small landowners or lesser gentry.
URBAN COURTS
Urban courts were often an offshoot of city councils. In cities as distinct as Amsterdam in the Dutch Republic, Venice in the Venetian Republic, and the free imperial city of Lübeck in the Holy Roman Empire, courts were run by the regents or town councillors. These were the same men who also made city laws and enforced them. Judicial, legislative, and executive functions were thus gathered into the hands of the same elites. In France, the main urban courts (the bailliages and sénéchausées, or bailiwick courts, in most cities) were instead integrated into the royal judicial system and filled with venal crown officers. Some French cities also had royal provosts who shared jurisdiction with the bailiwick courts. Many large commercial towns in Europe had merchants' courts as well. The Dutch East India Company's High Court of Justice, like French mercantile courts, allowed merchants to judge their peers. Urban guilds typically had their own internal courts to police their apprentices, journeymen, and even masters. Although these were informal courts, they were highly effective in policing the members of their crafts through a variety of fines and even banishment from the trade or from a region.
SEIGNEURIAL AND MANORIAL COURTS
During the chaos of the Middle Ages, tens of thousands of nobles across Europe won the hereditary privilege of holding law courts on their estates. These seigneuries, or 'privileged properties', typically were given rights of low, middle, or high justice. Low justice was considered to be inherent in the seigneury, and it allowed landlords to judge disputes over rents or other obligations with their tenants. Middle justice was hazily defined but typically included a broader civil and criminal jurisdiction over tenants. High justice endowed the seigneurial court with the right to judge almost all civil and criminal cases, including those warranting the penalty of death. They ranged dramatically in size as well as in power. Some courts held jurisdiction over only a part of one parish, while the jurisdiction of great nobles could extend over several hundred parishes and effectively function as lower-level state courts. In Brittany, an unusually dense region for seigneurial courts, there was roughly one seigneurial court per parish. Over France as a whole, there were somewhere between fifty and seventy thousand seigneurial courts. In England, these were known as manorial courts or courts leet, and their jurisdiction was largely eroded by state courts during the seventeenth century. In Spain, by contrast, landlords continued to exercise justice over their tenants well past the early modern period.
The crown always retained some residual powers over high justices. In France, a high justice could only be created by the king, and kings in fact continued to do so for the revenues (Louis XIV [ruled 1643–1715] created more than ninety high justices in Normandy alone). The crown also forbade seigneurs to judge in their own courts or to hold court in the manor house. Judges of French high justices were required to have a law degree and to be confirmed by the provincial parlement after 1680; in the 1770s Prussia also set minimum qualifications for seigneurial judges. Nevertheless, French seigneurial justice retained a high degree of independence in most regions. Despite a royal edict that required certain royal cases (cas royaux) like counterfeiting and treason to be heard in royal courts in the first instance, these were exceptionally rare crimes in rural areas and had very little effect on the seigneurial courts' real jurisdiction.
Despite the apparent conflict between royal courts and landlords' courts in early modern Europe, the theory that the state set out to deprive seigneurial courts of jurisdiction does not hold up on closer inspection. In France the crown was interested in regulating seigneurial justice and bringing it into line with professional standards used in the royal courts, precisely because it was so integral to the functioning of justice. Seigneurial courts, whatever their defects, were relatively cheap, accessible, and run at the expense of the seigneur rather than the crown. They were also increasingly run by the same personnel as royal courts. Many seigneurial court judgeships were actually held by officials and attorneys in the royal courts who were moonlighting in multiple jurisdictions. Last but not least, private seigneurial courts were increasingly owned by noble royal officials, including almost all the judges of the parlements by the middle of the seventeenth century. In Austria, Joseph II (ruled 1760–1790) felt compelled to order landowners to continue providing justice on their estates in 1786, because landlords were increasingly uninterested in the trouble and expense.
While French low justices gradually lost many of their clients during the seventeenth century, high justices tended to remain vigorous jurisdictions, and the largest of them sometimes operated as the bailiwick court for their districts. English manor courts (courts leet), by contrast, gradually lost both criminal and civil jurisdiction to the quarter sessions and assizes in the seventeenth century. Misdemeanors and capital crimes both went to the royal courts by about 1600.
CHURCH COURTS
Catholic and Protestant churches alike maintained their own internal courts and laws that governed the clergy and the faithful. The Catholic Church had developed an elaborate canon law based on Roman law procedures. Popes were also energetic lawmakers, adding to church law through papal bulls or decretals (papal decrees on points of canon law). Canon laws were enforced through a system of ecclesiastical courts that ran throughout the entire church hierarchy but whose center of gravity was usually the diocese or archdiocese. For serious infractions, the church could punish misbehavior with excommunication (for individuals) and interdicts (for regions or groups of people), which barred the accused from receiving most sacraments. Well before 1450, however, the jurisdiction of church courts over morals cases and crimes was being pushed back in centralizing monarchies like France and England. Judgments in church courts could increasingly be appealed to royal courts, under procedures like the appel comme d'abus ('abuse summons') in France, which further undermined their powers.
The church's concern with heresy had led to the establishment of exceptional tribunals using inquisitorial procedures in the high Middle Ages (1231). The Roman inquisition (and later the Spanish Inquisition) were central tribunals staffed by inquisitors, usually drawn from the Dominican and, later, the Franciscan orders. Inquisitorial procedure allowed judges to seek cases out rather than to wait for cases to be brought to them. The procedure also allowed suspects to be tried secretly, without known witnesses or defense attorneys. The Inquisition was particularly notorious, however, for approving the use of torture to extract confessions if other forms of proof were not sufficient. (Indeed, the accused could not have found lawyers in any case because it was a crime to aid heretics). Fewer than two or three thousand individuals were probably executed in Europe throughout the Inquisition's existence, but enormous amounts of property were seized, especially in Spain, where the Inquisition was used to root out both Moorish and Jewish communities.
Protestant churches also policed morals through internal courts. The Dutch Reformed church's consistories, for example, regularly issued summonses for adultery, drunkenness, suspicious bankruptcies, and disruptive behavior (even summoning Rembrandt's mistress for adultery). The penalties included exclusion from the sacraments and loss of public reputation. Ecclesiastical courts in England (sometimes called "bawdy courts") policed sexual and moral behaviors through a combination of canon law, Roman law, and ecclesiastical common law, but these cases were increasingly being handled by justices of the peace. By the late eighteenth century, ecclesiastical courts no longer had jurisdiction over the laity.
LAW CODES
Legal systems in Europe had grown up organically out of the mixture of Roman, tribal, and church law systems imposed on the landscape. Like court jurisdictions, law codes accurately reflected the divided sovereignty of most regions, in which landlords, the church, and the state all exercised some public powers. Four main legal systems stood out, however, in the mosaic of codes in use across Europe. These were Roman law (drawn particularly from Justinian'sDigests and Institutes, c. 533 c.e.), customary law (derived from medieval tribal codes), positive law (created by sovereigns, parliaments, or cities), and canon law (ecclesiastical law). While Roman law tended to remain most vital in the regions of southern Europe occupied by the Roman Empire, especially Italy and the south of France, elements of Roman law seeped into numerous law codes across Europe. Most Habsburg hereditary territories as well as the Low Countries were under mixed Roman and Germanic customary laws. By corollary, Roman law in the south of France was recognized by many eighteenth-century jurists as having developed into the customary law of the south, because it had gradually been transformed through long usage.
These dominant varieties of law were typically combined with minor codes, creating distinctive legal patterns that sometimes varied from parish to parish. In England, the early-seventeenth-century jurist Sir Edward Coke identified fifteen distinct types of law practiced across the realm. Most prominent among these were the common law (the general customs of the realm), manorial and borough laws (local customs), parliamentary statutes, the law merchant, and canon law. Each of these types of law in fact corresponded closely to a separate set of English courts. The common law was thus the law administered by the main royal courts sitting at Westminster, as well by the county assizes and quarter sessions, making it the dominant legal code.
This relative legal uniformity in England was furthered by the centralization of legal training in London at the eight Inns of Chancery and four Inns of Court. The Inns of Court (Grey's, Lincoln's, Inner Temple, and Middle Temple) were residences for lawyers during the four annual sessions of the Westminster courts, but they also provided lectures and training for students. No lawyer could plead before the superior courts without being first called to the bar at one of the Inns of Court; and, by extension, no judges in the superior courts or assize circuits could practice without having trained there as well.
England's was a remarkably organized legal system by continental standards, however. The positive laws of the French crown numbered over 800,000 by 1715. Despite their impressive number, though, they primarily gave the crown legal control over state administration and taxes. The vast majority of cases heard in the kingdom were, in fact, regulated by more than three hundred provincial and local customary codes and by thousands of seigneurial privileges or microcustoms that varied from one seigneury to the next. Customary laws dominated provincial legal proceedings; in some local bailiwicks, no more than about 2 percent of all cases involved positive royal laws. Because they governed property, family, and inheritances in France, they were naturally the laws used by ordinary people engaged in litigation. Customary laws and usages were codified with the crown's permission in the late sixteenth century, but they were largely impervious to state intervention until the French Revolution.
One of the most innovative regions in Europe with respect to law was the Dutch Republic. After the seven provinces broke with Spain to form the Union of Utrecht in 1579, a new legal framework had to be established for the fledgling state. Universities with law faculties were founded in several provinces, beginning with Leiden in 1575. Roman law became the lodestone of Dutch legal practice, but it was pragmatically combined with Germanic customary law, natural law, and the new statutes of the state by jurists and scholars. The provinces each retained their traditional system of lower courts and High Courts, like the Hooge Raad (High Court) of Holland, and flexibly adapted the new legal system to existing provincial customs.
From 1450 to 1789 two main patterns emerged in European law. The first was the rising tide of positive laws issued by sovereigns and local governments, which attempted to more minutely control the political, economic, and even social behavior of their subjects. By the late seventeenth and eighteenth centuries, attempts to codify laws were under way in states as different as Prussia, Russia, Austria, and France. Prussia's was the most successful attempt, producing the Preussisches Allgemeines Landrecht (Prussian General Common Law) in 1794, but almost everywhere the attempt foundered on the strength of customary laws, the vested interests of prominent social groups, or the lack of police and judicial officers to enforce them. The codifiers and law commissions paved the way for Napoleon's Code Civil in 1804, however, and for numerous European legal codes that were forged in its wake.
The second pattern was the dramatic increase in litigation across much of Europe, particularly in the sixteenth and seventeenth centuries. Suits in the English courts of Common Pleas and King's Bench increased tenfold between 1500 and 1600. Litigation peaked in England and France from the mid- to late seventeenth century, then saw falling caseloads in the eighteenth century. The increase in litigation probably had multiple causes: increasingly complex laws, the growing pace of commercial and property transactions, rising literacy, and the growth of trained lawyers and jurists to handle cases. The decline of litigation in the eighteenth century is still a mysterious and ill-understood phenomenon, but the overall trends toward sophisticated law codes and increasingly large and wealthy legal classes reflected societies that had become increasingly driven by the rule of law during the early modern period.
See also Absolutism ; Crime and Punishment ; Divorce ; Inheritance and Wills ; Inquisition ; Marriage ; Parlements ; Provincial Government ; Star Chamber ; Sumptuary Laws ; Torture .
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