CUSTOM AND LAW IN CENTRAL EUROPE

Edited by Martyn Rady

With an Introduction by János M. Bak

Centre for European Legal Studies

Occasional Paper no 6

Faculty of Law, University of Cambridge

CUSTOM AND LAW IN CENTRAL EUROPE

EDITED BY MARTYN RADY

WITH AN INTRODUCTION BY JÁNOS M. BAK

Published by

Centre for European Legal Studies

Occasional Paper No. 6

Faculty of Law, University of Cambndge

ISBN: 0-9546869–0–X

by any means, electronic, mechanical, recording or otherwise, without the prior permission of the Faculty of Law of

Cambridge University and contributors.

Copies of this publication and others in the CELS series may be obtained on application to the Centre for European

Legal Studies, Faculty of Law, 10 West Road, Cambridge, CB3 9DZ, United Kingdom

(http://www.law.cam.ac.uk/cels/).

Front Cover: from the original 1517 edition of Werbőczy's Tripartitum

Typeset and Printed by Q3 Print Project Management Ltd, Loughborough, Leics.

Preface

Stephen Werbőczy's account of Hungary's laws and customs, the Tripar-titum Opus Juris Consuetudinarii

Inclyti Regni Hungariae, was presented to the Hungarian diet in 1514 and printed three years later in

Vienna. Although it never received the royal seal, the Tripartitum rapidly acquired authority and was

republished in more than fifty editions. Until 1848, it retained a largely unimpaired influence in respect of

Hungarian law and legal procedures.

The present volume is a collection of essays drawn from papers delivered at a conference held in

Cambridge in April 2003 under the title, 'Werbőczy, Custom and Hungarian Law'. The conference

formed part of a much larger and continuing project, led by Professor János M. Bak of the Department of

Medieval Studies of the Central European University in Budapest, which is aimed (among much else) at

publishing an English-language translation and critical edition of Werbőczy's Tripartitum. The conference

was supported by most generous funding from the British Academy and the Central European University.

The organizers also gratefully acknowledge the help and support provided by the Faculty of Law of

Cambridge University, Corpus Christi College, the Centre for the Study of Central Europe of the School

of Slavonic and East European Studies, University College London, and the Faculty of Laws of

University College London.

This collection of essays, all of which have been substantially rewritten since they were first delivered

as conference-papers, brings together much of the latest research on law and legal institutions in the

kingdom of Hungary and in its sister-kingdom, the triune monarchy of Croatia, Slavonia and Dalmatia.

Some of the contributions aim to bring to scholarly attention the legal sources, principal institutions and

procedural developments relating to the history of this part of Central Europe. Others touch upon the nature

and meaning of custom and of the relationship between custom, law and statute. All are, however, bound

together by their recognition of the lasting importance of Werbőczy's Tripartitum for the legal history of

Hungary and Croatia. The contributions offer a variety of different perspectives and, sometimes,

contradictory assessments. The aim of the volume is not, however, to present a 'common front' but instead

to offer new insights on the work, context and legacy of Hungary's 'Tribonian and Bracton'.

Publication of this volume has been made possible by a generous grant from the Maitland Fund of the

Faculty of Law, Cambridge University.

Martyn Rady

Contents

Preface

Introduction 1

János M. Bak

Custom in the Tripartitum 13

David Ibbetson

Administering the Law: Hungary's Loca Credibilia 25

Zsolt Hunyadi

Hungarian and Croatian Customary Law: Some

Contrasts and Comparisons 37

Damir Karbić

Hungarian Procedural Law and Part Two of the Tripartitum 47

Martyn Rady

Pergošić' s Translation of the Tripartitum into Slavonian 71

Nataša Štefanec

Werbőczy's Reception in Hungarian Legal Culture 87

Katalin Gönczi

The Primacy of Consuetudo in Hungarian Law 101

László Péter

Contributors 113

Index 115

vii

Introduction

János M. Bak

1. The DRMH and the Tripartitum

The present collection of papers has its origins in the series Decreta

Regni Mediaevalis Hungariae / The Laws of the Medieval Kingdom of

Hungary (DRMH), which is a Hungarian and Croatian project led by

the Central European University and supported by British, German and

North American colleagues, friends and foundations.

DRMH is itself part of a much larger project, which was originally

conceived by the publisher of Slavonic and East European literature

and of a number of journals, Charles Schlacks, Jr (now located, after

several moves, in Idyllwild, California). Almost twenty years ago,

Schlacks set in motion an ambitious publishing enterprise, the aim of

which was to bring into print the laws of Central and Eastern Europe,

both historical and contemporary.

For Hungary, he won the

cooperation of Peter Hidas of Montreal, a historian of nineteenth-

century Hungary, who agreed to serve as editor. In turn, Peter Hidas

found the best person to start the series off with the laws of medieval

Hungary. This was György Bónis, the most distinguished historian of

law and institutions, and pupil of Ferenc Eckhart. Bónis had the

additional advantage of being able to utilize the notes and readings of

the late Ferenc Dory, who had long before planned a new edition and

Hungarian translation of the medieval laws. In turn, György Bónis

turned for help to James Ross Sweeney (of Pennsylvania State

University), whom he knew from Sweeney's work on the Hungarian

implications of the decretal Intellecto. Having surveyed the material

prepared by Bónis, Sweeney decided that yet more help was required,

and it was through this route that the present author was enlisted to the

task. (He, in turn, knew Sweeney from their time in Germany, when

the latter,

1 Besides DRMH, two volumes of Russian laws (incorporating the early laws of Kievan

Rus' and the Ulozhenie of 1649) were published.

2 Introduction

a Tierney-pupil, was working on his dissertation as a Humboldt-

Stipen-diat). To make an already long story short, we realized that a

volume of the 'laws' (the quotation marks will be explained below) of

the first historical period of the kingdom, the so-called Árpádian Age

(1000-1301) needed further refinements over and above what Bónis

had been able to achieve. The first volume of DRMH appeared, after

several years of work by the original Bak-B6nis-Sweeney

'triumvirate', in 1989 but sadly a few months after Bónis's own death.

For DMRH 1, we tried to sort out what was traditionally regarded

as 'law', legal norm and practice in the first three centuries of the

kingdom. Had we been purists, we would have had to make a very

slim volume and to content ourselves with the decrees passed by king

and noble assemblies in the late thirteenth century (under Andrew III,

1290-1301). For, by the rigorous definition of, for example, Armin

Wolf, earlier texts could not be termed 'legislation' in the strict sense.

Nevertheless, a part of the collections (libri) of legal texts attributed to

the founder king, St Stephen (1000-1038), survive in a late twelfth-

century manuscript; others from thirteenth-century collections.

Moreover, references to the 'laws of the holy king' were frequent from

the late eleventh century. So, we finally included the collections of St

Stephen, as also of Ladislas I (1077-95) and Coloman (1095-1116), as

well as the 'privileges' of Andrew II (1205-35), the so-called 'Golden

Bulls' (1222, 1231, and their addition in 1267). In the Appendix, we

edited synodal statutes of the eleventh and early twelfth centuries

which contained both spiritual and secular matters, a charter issued for

the nomadic Cumans even though we suspected it to be a forgery,

and a text that was dated by Döry and Bónis (although known only

from a later formulary) to 'c. 1300'.

Whether the relegation of the

synodal statutes under King Ladislas I and Coloman into the

Appendix was well founded is debatable. (György Györffy, a leading

medievalist of Hungary in the last decades of the twentieth century

queried this decision of ours in a review which he planned to write,

but which was not, as far as we know, published.) Annotations,

glossary and

2 The Laws of the Medieval Kingdom of Hungary/Decreta Regni Medicevalis

Hungarian, vol. 1 (1000-1301) with an essay on previous editions by Andor

Csizmadia, (ed. and trans.) János M. Bak, György Bónis and James Ross Sweeney,

Salt Lake City, 1989.

3 See thus Armin Wolf, Gesetzgebung in Europa 1100-1500. Zur Entstehung der

Territorialstaaten, Munich, 1996, p. 266.

4 As since convincingly argued by Nora Berend, At the Gate of Christendom: Jews,

Muslims and Pagans in Medieval Hungary, c. 1000 - c. 1300, Cambridge, 2001,

pp. 89-92.

János M. Bak

whatever else belonged to a scholarly edition were included.

And, while the contents were praised, the format, the typos and

layout were criticized – and rightly so. To set the record

straight, however, this was one of the earliest attempts at

computerized typesetting, printing, and production, and under

these circumstances glitches were bound to occur. (We were

ten years later fortunate enough to obtain financial assistance

for a corrected and revised edition, which we offered gratis to

all owners of the first).

The subsequent volumes followed in due course: one for

the 'Age of Kings of Diverse Houses' (as the old category ran),

that is from 1301 to 1457, and one for the reign of Matthias I

Corvinus, 1458-90.

These were initially supported by the

National Endowment for the Humanities Translation Projects

(in the USA), and some other grants. They were much less

problematic than the first as they could be based on the critical

edition previously published by Bónis and others in two

volumes.

In the meantime, we had also acquired some

additional expertise in editing and publishing matters. The

editors changed from volume to volume, involving experts on

the given period. Thus did we arrive at the threshold of the 'age

of tumultuous diets' (my own term), under the Jagiello rulers,

which ran from the death of Matthias Corvinus in 1490 to the

end of the independent kingdom after the battle of Mohács in

August 1526. During these less than three decades, kings and

diets passed more laws than those of the entire 500 years

preceding them while – and this is significant – little of what

they passed actually went over into practice. Diets

5 This dating has now been – I feel successfully – challenged by Pál Engel ('Az

"1300 körüli" tanácsi határozat keltezéséhez', in Magyarország a nagyhatalmak

erőterében. Tanulmányok Ormos Mária 70. születésénapjára, ed. Ferenc Fischer

et al, Pécs, 2000, pp. 125–32) who suggests that it originates from the second

half of the fourteenth century. Admittedly, we also had some doubts (some of

the same that were discussed by Engel), but bowed to the expertise of Bónis.

Thus it should by rights be in the second volume of DRMH, most probably in

the Appendix.

6 DRMH 1 (1000–1301), Second revised edition in collaboration with Leslie S.

Domonkos, Idyllwild, CA, 1999.

7 DRMH 2 (1301–1457), ed. and trans. János M. Bak, Pál Engel, James Ross

Sweeney, in collaboration with Paul B. Harvey, Salt Lake City, 1992; DRMH 3,

ed. and trans. János M. Bak, Leslie S. Domonkos, Paul B. Harvey, Jr, in

collaboration with Katalin Garay, Los Angeles, 1996.

8 Decreta Regni Hungariae. Gesetze und Verordnungen Ungarns, vol. 1

(1301–1457), eds Franciscus Döry, Georgius Bónis, Vera Bácskai, Budapest,

1976 (Publicationes Archivi Nationalis Hungarici II, Fontes 11), and vol. 2

(1458–1490), eds Franciscus Dory, Georgius Bonis, Geisa Erszegi, Susanna

Teke, Budapest, 1989 (Publicationes Archivi Nationalis Hungarici II, Fontes

19).

4 Introduction

met occasionally twice a year, one cancelling the decrees of the other,

but all of them repeating innumerable articuli, very often of a merely

temporary and 'political', rather than legal value. How should we

publish this vast body of material? One solution discussed was to

make a radical selection. But this would necessarily contradict the

unquestionably good principle of presenting the entire extant corpus

of legal acts of a medieval kingdom, a claim that we had made at the

outset. In order to give ourselves some time to think – and gather

support for such a fourth volume, which could run into many

hundreds of pages – we decided to 'jump', and to prepare instead the

annotated bi-lingual edition of the 'summary' of medieval law, i.e. the

famous Tripartitum opus iuris consuetudinarii inclyti regni

Hungariae of the lawyer and politician Stephen (Istvan) Werbőczy,

compiled in 1514.

This choice was not as subjective as it may sound. Surveying the

'legislation' between 1490 and 1526, we realized that the most

valuable parts of it refer to procedure and these found their way, often

verbatim, into Werbőczy's collection of the custom of the realm. Thus,

once we have – Deo propitiente – a new edition of the Tripartitum

(based on the 1517 printing and properly translated and annotated), as

volume five of DRMH, we should be able to cut the bulk of the

decreta by cross-referencing (or small-printing) repetitions without

breaking the principle of completeness. Moreover, the Tripartitum

was for the subsequent centuries also highly important; it may thus

count on the interest of a readership wider than just medievalists.

Being, as it more or less is, a 'final' summing up of medieval

Hungarian legal development, this volume may also be useful for those

who do not wish to scrutinize in detail the preceding centuries' legal

documents.

9 The first edition was printed by Singrenius in Vienna in 1517. Subsequently, the

Tripartitum was reprinted more than 50 times, usually as part of the Corpus Juris

Hungarici. A facsimile edition of the 1517 book has been published in the series

Mittelalterliche Gesetzbücher in Faksimile, with a preface by György Bónis, in 1969

(Frankfurt/M). For a list of the editions of the Tripartitum, see István Csekey, 'A

Tripartitum bibliográfiája', in (eds) Elemér P. Balás, István Csekey, István Szasz,

György Bónis, Werbőczy István, Acta Juridico-Politica 2, Kolozsvár, 1942, pp. 141–94.

Csekey's bibliography was more widely circulated as an offprint of the Kolozsvár

publication under the title Werbőczy és a magyar alkotmányjog... a Tripartitum

bibliográfiájával.

János M. Bak

2. The Tripartitum: Text and Translation

The Tripartitum is an account of Hungarian customary law

arranged in three books of respectively 134, 80 and 36

chapters. The volumes are preceded by a prologue and other

introductory materials. The most recent edition of the

Tripartitum runs in its Latin text to over 200 closely-printed

pages. As Martyn Rady discusses (below, p. 47) the

Tripartitum was compiled by order of the Hungarian diet and is

the work of the Hungarian lawyer and judge of the royal curia,

Stephen Werbőczy. Within only a short time of its

presentation to the diet in 1514, Werbőczy's law book was

regarded as the definitive law of the Hungarian nobility. It

remained until 1848 the first resort of lawyers and judges in

the kingdom of Hungary and in the principality of

Transylvania. A Hungarian translation was published as early

as 1565, a Croatian (by Ivan Pergošić, for which see the article

by Nataša Štefanec below, pp. 71–85) in 1574, and a German

version (by August Wagner) in 1599.

Court manuals

and

other guides to customary practices published in the

intervening centuries are without exception summaries or

clarifications of the text of the Tripartitum. As Katalin Gönczi

discusses below (pp. 87-89), the Tripartitum remained both at

the centre of Hungarian legal scholarship and also an

insurmountable block to Hungarian legal development until

well into the last century.

In his preface to the Tripartitum, Werbőczy attempted to

rest Hungarian customary on Roman Law principles and

promised to divide his work according to the civilian

distinctions of personae, res and actiones. However, he

proved unable to keep to this scheme and to the other

theoretical distinctions he had lifted from legal scholarship,

mainly from Bartolus (or an intermediary text), as

demonstrated by David Ibbetson (pp. 16-20, below). He

instead divided his text according, first, to the law of noble

landholding; secondly, to the procedures followed in the

courts; and, thirdly, to all that failed to fit into the

10 Several partial Greek translations of the Tripartitum are also known from the

eighteenth century, apparently intended for the use of merchants. See Tamás

Vécsey, 'Werbőczy görögül', Századok, 28, 1894, pp. 485–9.

11 As for instance, Joannes Kitonich, Directio Methodica Processus Judiciarii,

Nagyszombat, 1619.

6 Introduction

preceding categories. It has been established,

that Werbőczy

frequently used formularies of the courts, often unchanged, thus

basing his collection more on actual practice than any type of legal

theory. It was for this reason that Bónis called the lawyers of

Werbőczy's type 'practical jurists.'

Werbőczy always claimed that his text merely replicated the

customs of the Hungarian nobles as they had developed over the

course of the previous centuries. Evidently, however, he impressed

his own interpretation on the law as he found it. In some cases he

sought to iron out inconsistencies; in others to improve upon

matters as he found them. Despite these shortcomings, the

Tripartitum is the most important legal document to come out of

East-Central Europe in the medieval and early modern period. It is

thus substantially fuller than the sixteenth-century Lithuanian

Statutes and the Moravian 'Law of Fiefs' published in 1538. Poland

produced no comparable volume, relying instead mainly on

collections of

decrees of the diet.

The principal modern edition of the Tripartitum was published

in a Latin-Hungarian parallel text in 1897 and is defective.

edition has yet been published which attempts to explain the terms

Werbőczy used, to relate them to usage elsewhere, or to elucidate

the procedures he describes. It is this, in particular, which renders

translation difficult but which also makes it uniquely important. By

obliging consideration of individual terms and of the best way of

translating them, their meaning is teased out and opportunities for

comparative study presented. The work of translation undertaken so

far has highlighted many such examples – in

12 György Bónis, Kozepkori jogunk elemei. Romai jog, kdnonjog, szokdsjog,

Budapest, 1972, esp. pp. 237–63. There Bónis also discusses the most often

assumed 'source' of Werbőczy, the Summa Legum (see Die Summa Legum brevis, levis

et utilis des sog. Doctor Raymundus von Wiener-Neustadt, ed. A. Gal, 2 vols, Weimar,

1926). Bonis suggested that a printed version of this legal text (Cracow, 1506) may

have been known to Werbőczy, but points to many other textbooks and formularies

that may have been used by him. See thus György Bónis, 'Der Zusammenhang der

Summa Legum mit dem Tripartitum', Studia Slavica Acad. Scient. Hung., 11, 1965,

pp. 379–85. We have not yet explored this avenue in any detail, but will plainly have

to do so before completing our work.

13 See György Bónis, A jogtudó értelmiség a Mohács előtti Magyarországon,

Budapest, 1971, a summary of which appeared as 'Men Learned in the Law in

Medieval Hungary', East Central Europe/L'Europe de centre-est, 4, 1977,

pp. 181–91.

14 The so-called 'Millennium' edition, published in Budapest, 1897, in the series

Corpus Juris Hungarici 1000–1895, edited by Sándor Kolosvari, Kelemen Óvári

and Dezső Márkus.

János M. Bak

respect, for instance, of the rules governing female inheritance,

warranties on sales of land, and institution to estates. And

there are clearly other matters of the same kind. How should,

for example, we describe and explain the procedure of

repulsio (see below, p. 68) which involved the physical

obstruction of a court bailiff but which was entirely legal?

Was this a uniquely Hungarian custom, born of conditions of

lawlessness, or does it have parallels elsewhere in Europe?

How also should we translate and interpret Werbőczy's use of

the term impetrare (apply for) in respect of a royal donation?

Werbőczy clearly implies that once an estate was requested

from the king, it was automatically granted to the applicant.

Only later, so it appears, was it sorted out whether the

property was indeed the king's to give away.

It seems that we succeeded in convincing a good number of

eminent legal historians that Werbőczy's Tripartitum was

worthy of their interest. With the support of the research

committee of the Central European University, Budapest, and

the Hungarian National Research Fund OTKA, we were in

December 2001 able to hold a workshop in a hunting-lodge

near the western Hungarian town, Sárvár, on the former estate

of the Nádasdy family. Besides the 'Budapest team' (János

Bak, Péter Banyó, Zsolt Hunyadi, Damir Karbić, Tamás

Pálosfalvi and Frank Schaer), David Ibbetson (Cambridge),

Andrew Lewis and Martyn Rady (both of University College,

London), Katalin Gönczi and Armin Wolf (both of the Max

Planck-Institut für Europäische Rechtsgeschichte, Frankfurt),

Richard Helmholz (Chicago), DeLloyd Guth (Winnipeg) and

the publisher attended and spent three and a half days (and

evenings) poring over the intricacies of Hungarian legal Latin

and the peculiarities of Werbőczy's text.

Even though we started out with the 'minimalist' aim of

consulting our colleagues for the most appropriate English

words for institutio (the act of introducing a new owner into a

holding), fassio (a legally-binding declaration), fratres

condivisionales (kinsmen with the right to inheritance of joint

property) and so on – we ended up discussing the legal and

theoretical sources and implications of Werbőczy's work. We

were able to establish that the traditional assessment of the

'Romanist' element in the Tripartitum was not entirely correct.

Although the passages of the Prologue extensively citing

Justinian and his predecessors do, indeed, have little to do with

the rest of the work, the author regularly borrows civilian

terms, often to describe matters entirely different from their

original meaning. We also learned that we should be even

more careful than we had been with applying English and

Anglo-Norman legal terms (such as seizin) to acts and

institutions that were in fact peculiar to the kingdom

8 Introduction

of Hungary-Croatia. Sometimes they have their parallels in the British Isles,

but never (or rarely) are these close enough to be given the same name.

Finally, in discussing procedures and concepts – if only at the outset to find the

right word for them – we all learned much about medieval Hungarian legal

practice, or at least what Werbőczy thought it was or ought to be.

Having done all this and more with Pars Prima of the Tripartitum, it

became clear that it was worth pressing on in the same manner with the Partes

Secunda and Tertia. As Martyn Rady had been able to obtain additional support

– besides the last portion of the CEU grant – from the British Academy, we

met in April 2003 in London and Cambridge for our second workshop. Of the

original Sárvár group, Helmholz, Wolf, Schaer and Pálosfalvi were unable to

attend, but we were joined by Nataša Štefanec (Zagreb), László Péter

(University College), Magnus Ryan (Warburg Institute), Chris McNall

(Cardiff) and Toshiya Kikuchi (Cambridge). This time we combined work on

the translation of the text with a conference on matters related to customary

law. The present work reflects the results of this conference, which was

generously hosted by the Faculty of Law of Cambridge University and Corpus

Christi College.

3. The Tripartitum: 'Norm' and Reality

One of the major subjects that we wanted to clarify was the relation between

'law' and 'custom' in the context of the medieval kingdom of Hungary. In a

fifteenth-century formulary recovered from one of those convents that served

as 'place of authentication' (about which we can read in Zsolt Hunyadi's

contribution, pp. 25–35, below), namely the Benedictine monastery of

Somogyvár in south-western Hungary (although the text was most probably

compiled in one of the royal courts of justice), there is a gloss on law and

custom.

The gloss suggests much about medieval perceptions of the

relationship between statute and usage. In essence, the gloss prescribes that the

judge should apply either local custom or lex, according to the plea of the

plaintiff. Lex here does not mean positive law, but general custom based on

'ancient legislation'. Statute law, it continues, cannot be expected to be familiar

to all; hence, it may not be applied unless so requested, and no penalty is to be

imposed

15 See György Bónis, 'A Somogyvári Formuláskönyv', in Emlékkönyv Kelemen Lajos születésének

80. évfordulójára, Bucharest, 1957, pp. 117–33. The manuscript is now in the Bolyai-Library,

Ttrgu Mureş, MS 374.

János M. Bak 9

for the lack of its knowledge. The gloss continues to explain that the

plaintiff has the right to request judgment according to received

custom, local usage, royal decretum or 'general justice'. (In the

preceding sentence the plaintiff was given only two choices; apparently

the last two depended on the judge's consent being obtained). Royal

decisions, if called upon, have to be applied because of the obligatory

submission to secular authority, even if, so it seems, they contradict

'good old' custom. Finally, ius, divine or natural law, has to be followed

above any other prescription, for it expresses those higher values which

no medieval person would challenge.

Thus, both the hierarchy and the

competition of sources of law were notions familiar to Hungarian

practitioners of the administration of justice. That custom (at least in

one of its meaning, as Ibbetson explains below, pp. 13–23) remained

supreme in Hungary – well beyond the Middle Ages – is fully

demonstrated here by László Péter (see below, pp. 101–11).

Nevertheless, in Hungary no record of customary law other than the

Tripartitum has survived. To be sure, there is frequently reference in

charters and judgments to the consuetudo regni, which seems to have

been comprehended as 'self-evident'. (Just as the author of the above-

quoted gloss infers.) Beyond this, however, we have no opportunity of

comparing the 'real' customary tradition with the one summarized (and,

as we said above, adjusted) by Werbőczy. In the other constituent part

of the medieval kingdom, Croatia, the situation was different. As

Damir Karbić has shown (below, pp. 37–45), several customary law-

codes were written down there at different times and for different

reasons. Naturally, as soon as it is put into writing, custom – by

definition based on oral tradition and collective memory – changes its

character. Still, it is very valuable to have a few of these records, which

in general support the usage recorded by Werbőczy with relatively little

local variation.

Another comparison that suggests itself is between the norm as

formulated by Werbőczy and actual legal and administrative practices.

This has been done in respect of medieval Hungarian noble society by

both Erik Fügedi

and Martyn Rady.

Elsewhere, Pál Engel, Marija

Karbić, and Péter Banyó have addressed the questions about the filial

quarter and the

16 The gloss is published in Decreta Regni Hungariae (see above, n. 8), pp. 24–5. Bónis

additionally argued in Középkori jogunk elemei (pp. 240ff) that the formulary was

extensively used, although altered and augmented, by Werbőczy.

17 See Erik Fügedi, The Elefánthy: The Hungarian Nobleman and His Kindred, ed. Damir

Karbić, Budapest, 1999, esp. pp. 20–64.

18 Martyn Rady, Nobility, Land and Service in Medieval Hungary, London and Basingstoke,

2000.

10 Introduction

division of estates.

There are several points where Werbőczy clearly tried to avoid

matters of social and legal reality in favour of the 'ideology' of the noble estate. The

tenet that all nobleman enjoyed the self-same liberty (una eademque libertas) – typical

for both Hungary and Poland – had been written into law much earlier, but became

through the Tripartitum the 'cornerstone' of the estates' collective privileges. (It has

been convincingly argued that the first formulation in 1351 was not meant to be a

'constitutional foundation', but emerged in the context of a redefinition in the status of

several categories of nobleman. While it may have been increasingly understood in

Werbőczy's sense, it was he who 'carved it in stone'). It is, for example, in the sense of

this tenet that the Tripartitum almost entirely overlooks a very widespread practice (if

not institution) of medieval and early modern Hungarian social practice: the

dependence of lesser nobles on their more wealthy and powerful fellows.

Usually referred to as the familiares (sometimes simply homines, later also servitores)

of a magnate or a locally mighty lord, these nobles did not lose their noble status, and

their own (or their kindred's) property was not touched by these arrangements. In this

respect, Werbőczy was correct not to spend time discussing the legal implications of

familiaritas, for these implications were few. Nevertheless, a significant segment of the

nobility earned their living not from their own (usually fairly small) holding, but from

serving in the household of a royal official, commander of a private army, or other kind

of office-holder, mostly for a reward in cash or kind. They were the vicecomites of the

counties, the judicial personnel of higher and lesser courts, the bailiffs and

administrators of the great estates, commanders and fighters in the greater lord's

banderia ('private' armies in the service of the king or a magnate). Social mobility

through these channels proved significant, and many a later well-known family's

ancestor started out as the servitor of a magnate. On the other hand, accepting service

voluntarily (and sometimes, in the case of more aggressive lords, not so voluntarily)

was an important strategy against impoverishment and helped compensate for the

declining incomes produced by the system of partible inheritance. In spite of all this,

the Tripartitum does not treat this arrangement anywhere explicitly, and only once or

twice

19 Pál Engel, 'Erbteilung und Familienbildung', in ...The Man of Many Devices, Who Wandered Full Many Ways...

Festschrift in Honor of János M. Bak, eds Balázs Nagy and Marcell Sebők, Budapest, 1999, pp. 411–21; Martyn

Rady, 'The Filial Quarter and Female Inheritance in Medieval Hungarian Law', in ibid., pp. 422–31; Péter

Banyó, The Female Quarter in Medieval Hungary: Inheritance of Noblewomen in the Medieval Kingdom of

Hungary, unpublished MA thesis, CEU, Budapest, 1999.

János M. Bak 11

does a remark slip from Werbőczy's pen, as for instance when he refers to a

nobleman who carelessly loses his lord's castle, or to a noblewoman who is

married off 'from a lord's household'.

In similar fashion, Werbőczy insists on the principle that the so-called filial

quarter (the inheritance of female descendants from an estate otherwise

inherited only by men) should be paid out in cash, except in the case when a

noble woman marries a non-noble. In this event, she receives a piece of land, so

that her status (as landowner) be sustained. Her husband, so Werbőczy avers,

will not become noble by this. In this way, the borders of the noble estate were

guarded against intruders. In fact, as the extant manuscript material

demonstrates, it was a quite widespread practice to give out the filial quarter in

land. In the noble community of the campus Zagrabiensis (in Slavonia), for

example, it was the de facto rule.

And, as Fügedi has shown, there were a good

number of commoners who acquired noble status (if not for themselves, for their

sons) and were even referred to (for a while) as nobiles quartales. Their

acceptance into the nobility seems to have entirely depended on the judgement

of their fellows in the county and not on statute law or consuetudo regni.

Closer scrutiny of Werbőczy's teachings reveals several inconsistencies of this

type, where Werbőczy is quite clearly making rules in accordance not with

actual practice but with how he thought things ought to be.

To be sure, neither the present volume of essays nor the larger project from

which it derives can comprehensively examine details of this sort, for such

would amount to nothing less than a re-writing of the history of law and legal

procedure in the medieval kingdom of Hungary-Croatia. Nevertheless, future

workshops and conferences will – so we hope – address some questions of

legal norm versus legal reality, if only to help us decide on the annotations in

the planned edition of the Tripartitum. The contributions in the present

publication are valuable Vorarbeiten for these tasks.

20 See thus Marija Karbć, 'Heiratsstrategien des Kleinadels von Turopolje (Slawonien) im späten

Mittelalter', East Central Europe /L 'Europe du Centre-Est: Eine wissenschaftliche Zeitschrift, 29,

2002, pp. 167–76.

21 See thus for the assumptio oneris, Martyn Rady, 'Warranty and Surety in Medieval Hungarian Land

Law', Journal of Legal History, 23, 2002, pp. 23–36 (p. 33).

Custom in the Tripartitum

David Ibbetson

Custom can be a troublesome notion for a lawyer. The recognition that

law is a reflection of social practice, which is what the granting of legal

status to custom amounts to, is a very obvious threat to the lawyer's claim

to have arcane knowledge. A claim to expertise in the identification of

everyday practice is something of a hollow one, hardly justifying the

enhanced social status and financial rewards typically demanded by the

lawyer.

It is not always problematic, of course. The legal practitioner whose

expertise lies in the manipulation of legal processes rather than the identi-

fication of normative rules, has nothing to fear from it. The scholar taking

a disinterested standpoint may unconcernedly identify social practice as

lying at the root of legal rules without feeling professionally threatened by

the revelation. The lawyer operating in a highly developed system can

nod in the direction of custom having a marginal role to play as a formal

source of legal rules, without undermining his claim to expertise in identi-

fying the other rules of the system and in co-ordinating the operation of

customary rules, which are presumptively generally known, with those

derived from other authoritative sources.

The difficulty is felt most acutely by those articulating the rules of a

legal system for the first time. How are they to justify their statements as

to what the law is? How are they to demonstrate their truth? Some of the

rules of the system may be legislative in origin, and an authoritative

source for those can easily be given (so long, that is, as the legislator can

be regarded as having the requisite degree of authority). Some of the rules

of the system may be explicitly derived from books treated as valid

sources in themselves: for example, the Bible or some other religious text,

the Canon law, or Justinian's Corpus Iuris Civilis. Most of the rules of the

system, though, cannot be attributed to any such authoritative source.

From an external point of view we may say that they are rules whose only

base lies in custom, but for the lawyer writing from inside the system it is

14 Custom in the Tripartitum

not so easy. He can say that the rules are the rules because they represent

the way in which things are done; but this leaves him open to a denial that

things are in fact done this way, and hence that his statement of the rule is

false.

There are a number of possible alternatives. The classical Roman

lawyers simply did not acknowledge custom as a source of law; in the

Institutes of Gaius, the first pedagogic overview of the Roman legal

system that has survived, the opinions of jurists, provided they are in

agreement, are explicitly treated as having authoritative status in them-

selves.

We would ourselves say that all that the jurists were doing was

giving verbal form to customary rules, but by the time that their verbaliza-

tions get into the books the underlying customary basis of the rules has

been etched away and made irrelevant. A second approach is that of the

classical Common law in England, giving authoritative weight to judicial

pronouncements. At heart we may recognize that this is in reality little

more than a mask; in reality what lies behind these judicial utterances is

the articulation of social practices, but – as with the Roman lawyers'

analysis – this is concealed by their refraction through some body with

the power to transmute descriptive statements into normative rules.

There is a third alternative, simply to ignore the problem. This is

essentially the strategy of Werbőczy. Though he pays lip service to

custom as a source of law in the Prologue to the Tripartitum, in the

substantial core of the work there is almost no reference to it whatsoever.

The rules are, in the main, simply described as law, without any attempt

being made to show their source. There are occasional references to

formal legislative acts or other sources, but the vast preponderance of the

law described in the text is unsourced. It is simply a description of the

way in which the system works, or is said to work.

1. The Idea of Custom

Before embarking on a discussion of Werbőczy's treatment of custom, a

general observation might usefully be made. Custom is a slippery notion,

and in the early modern sources we may distinguish three different senses

in which it is used.

First of all, it expresses the way in which things are done. This is the

central meaning of the word today, and was probably equally the central

meaning in the early sixteenth century. In itself it says nothing about the

1 Gaius, Institutes, 1.7.

David Ibbetson 15

way in which things were in fact done in the past, but it implicitly or

explicitly calls upon past practice as evidence of what the custom is if the

matter is in doubt; and the more long-standing the practice can be shown

or asserted to be, the more conclusive it is. The operation of this form of

argument from custom can be illustrated by a homely example which

recently arose in my Cambridge College. It is the custom for Fellows of

the College to wear scarlet gowns on the Sunday after Candlemas; that is

to say, they habitually do so in the belief that they ought to do so. What,

though, if Candlemas falls on a Sunday? Is scarlet to be worn on

Candlemas itself or on the Sunday following? When the question arose,

nobody could remember for certain what had happened on the previous

occasion that this had occurred, some six years earlier. Recourse was had

to the oldest Fellow, who 'recalled' what he had been told some sixty

years previously by an elderly Fellow. No attempt was made to verify

whether or not this was true, nor even to find out what had happened on

the last occasion. The appeal to past practice, or statements of what prac-

tice was said to have been around a century ago, is in this sense little more

than a rhetorical device to provide an authoritative answer to a question

whose answer would otherwise be ambiguous.

Secondly, custom may be offset against law, consuetudo against lex.

Typically, although not necessarily, lex will be written, a formal legisla-

tive act, while consuetudo will be oral, not enshrined in any formal legal

source, and inherently less sharply defined than lex. Any legal system

substantially made up of formally identified rules can allow interstitial

force to custom: modern English law does so, for example, at least to a

limited extent. Sometimes, custom can stand against law, as where legal

force is given to the custom of particular groups (the custom of

merchants, for example) or to particular places (as where non-standard

local inheritance rules are given legal force). An important example of

this usage found in the early modern period occurs in the opposition

between the formal written texts of the learned laws (that is, the Canon

law and the developed Roman Civil law) and the informal customary laws

of particular places.

Thirdly, more specifically, custom or consuetudo may describe local

laws, whatever the origin, in contradistinction to the European ius

commune derived out of the learned laws. Custom in this sense does not

necessarily refer to norms derived out of social practice at all. The rules

2 Perhaps the best example of this in late medieval and early-modern legal practice is

provided by the German Schöffen, whose pronouncements on custom had authoritative

force.

16 Custom in the Tripartitum

might have been legislated in the most formal way possible, but against

the background of a pan-European common law they could none the less

be described as customary because they were of purely local application.

All of these senses can be found in Werbőczy, as in other legal writers of

the time. To some extent it is the slippage between them, as well as the

difficulties of articulating that rules are only social practices, that makes

custom such a difficult concept to grasp hold of.

2. Custom in the Tripartitum: the Prologue

It is only in the Prologue to the Tripartitum that Werbőczy provides the

reader with any reflections on the nature of custom. In its first sentence he

announces that he is going to describe the laws and approved customs,

leges et consuetudines approbatas, of Hungary, apparently setting custom

up as one of the two sources of the rules which go to make up Hungarian

law.

References to custom abound throughout the Prologue, and it is

discussed specifically in three sections, one entitled Quid sit consuetudo:

et quae sunt necessaria ad consuetudinem firmandam? one Quomodo

differt lex a consuetudine: et de triplici virtute consuetudinis,

and one De

lege et statuto: ac consuetudine contraria quid sit sentiendum.

Werbőczy's treatment of custom is nothing if not unoriginal. It is

substantially derived from Bartolus,

whether directly or through some

intermediate source, and probably bears no relation at all to any specifi-

cally Hungarian rules relating to the subject. Werbőczy's definition of

custom, for example, borrows from Bartolus: Consuetudo est ius

quoddam moribus institutum, quod pro lege suscipitur, cum deficit lex.

Central aspects of Werbőczy's description of custom are equally

Bartolist, whether or not they quote him directly. Its legal force stems

3 It seems here to be used in the second of the three senses just described.

4 Prologue, [10]. For the text of the Tripartitum, I have used the 1517 edition, published in

facsimile in 1969, while retaining the numbering given in the 'customary' (i.e. Corpus

Juris Hungarici) version.

5 Prologue, [11].

6 Prologue, [12].

7 On the use of custom in Bartolus, see W. Ullmann, 'Bartolus on Customary Law', Juridical

Review, 52, 1940, p. 265.

8 Prologue, [10], cf. Bartolus, Commentarius ad Digestum Vetus, (hereafter, Bartolus),

Repetitio ad D.1.3.31 (32 in modern editions of the Digest), no. 6. 1 have used the edition of

1577, and followed the numeration used by Bartolus.

David Ibbetson 17

from the tacit consent of the people, but this can only be discerned by

looking at continuous or repeated usage:

Actus frequens de se non est necessarius ad consuetudinem inducendam, sed quia

per usum colligitur consensus populi, qui plerumque non potest ex uno solo actu

colligi, igitur frequentia actuum est ut causa, consuetudo vero ut causatum?

The same idea is found in Bartolus, although more precisely expressed:

use (usus) is the causa remota; the tacit consent of the people the causa

proxima of the recognition of custom as law.

A lapidary statement of

Werbőczy distinguishing consuetudo from lex – tanquam tacitum et

expressum,

as tacit and express – makes little sense on its own, but can

be understood against the backőnd of Bartolus' position that both

legislation and custom derive their authority from the will of the people,

the difference between them being that the consent was tacit in the case of

custom and express in the case of lex.

Some lawyers had said that the

difference between lex and custom was that the former was written

whereas the latter was oral; Bartolus (among others) had denied this, for

the so-called Libri Feudorum was customary law, but had been reduced to

writing and added on to Justinian's Corpus Iuris.

Werbőczy refers to the

distinction between written and unwritten, but says that it is not the

essence of the difference between lex and custom, taking also as his

counter-example the Libri Feudorum, which was customary but which

had come to be written down.

Custom for Bartolus (and, indeed, gener-

ally in the writings of the glossators) might accord with the law, go

beyond the law, or contradict the law;

so too Werbőczy.

And so on.

The core sense of consuetudo used by Werbőczy in the Prologue

appears clearly from his section Quid sit consuetude.

In essence it is the

first definition given above:

the recognition of legal force in some social

practice, justified by reference to past usage. Along with lex, it was a

9 Prologue, [10. 7]. Werbőczy attributes this to the communis sententia doctorum.

10 Bartolus, Repetitio ad D.1.3.31, nos. 11, 12. As Ullmann shows, the idea can be traced

back well before Bartolus. See 'Bartolus on Custom', pp. 268–269.

11 Prologue [11].

12 Bartolus, Repetitio ad D. 1.3.31, no. 7.

13 Bartolus, Ad D.l.3.31, no. 4; Repetitio ad D.l.3.31, nos. 7, 8.

14 Prologue, [11. 1].

15 Bartolus, Ad D.l.3.31, no. 5; Repetitio ad D.l.3.31, no. 5.

16 Prologue, [11.3–5].

17 Prologue [10].

18 Above, pp. 14–15.

18 Custom in the Tripartitum

source of ius. Three conditions are given for its recognition. First of all,

defmitionally, it must be capable of being law: something that could not

be made ius by an act of legislation could not be made ius by customary

adoption.

In Werbőczy's language, it must be rational, in the sense that

it must tend to further the true end of ius. If the true purpose of Canon law

or Divine law was the well-being of the soul, then a custom which led

towards this end would hence be rational; if the true end of human law

was the public good, then equally a custom which tended towards that

would share in its rationality. Though important to an understanding of

the nature of the legal force of custom, such a definition did not mean a

great deal in practice. There was no need to demonstrate a custom's

rationality in one of these ways; so long as it did not go against the ius

naturale, the ius gentium, or the ius positivum

it would be presumed to

be rational. The operation of such a presumption meant that a potentially

wide scope could be allowed to custom. There was no need to show in

every case that a practice was rational in one of the senses defined above;

unless it was demonstrably irrational it could be upheld.

The second requirement which had to be satisfied before a custom

could count as law was that it should have been established by a suffi-

ciently long usage.

There is an ambiguity in Werbőczy's analysis here,

an ambiguity shared with Bartolus and other medieval lawyers. The

period of usage which might be relied upon was, in normal circumstances,

fixed at ten years dating from the time that the act was first performed.

Custom became law by prescription, in the same way as a person might

become owner of property prescriptively by long possession. This was a

simple mechanistic test, operative as a matter of law purely because the

requisite period of time had passed. On the other hand, the reason for the

requirement of long usage was to enable the tacit consent of the people to

be discerned.

Werbőczy recognized that there was no need for

19 Prologue, [10. 3–4]. The same idea appears in Bartolus, Repetitio ad D.l.3.31, no. 11.

20 This is essentially the trichotomy of laws given by Justinian in Institutes 1.2.1: ius naturale is

that which nature teaches to all animals; ius gentium those precepts which are observed to be

common to legal systems; ius positivum (ius civile in the Institutes) the particular laws of any

state. The same division is found at the start of the Prologue to the Tripartitum.

21 Prologue, [10. 5–7], Werbőczy sees two separate points: the length of usage and the

discernment of tacit consent.

22 Prologue, [10. 5–6]; Bartolus, Repetitio ad D.l.3.31, nos. 14,15 (note that Bartolus says that

one counts from the second performance of the act rather than the first).

23 Prologue, [10. 7].

David Ibbetson 19

frequency of use if the tacit consent could none the less be identified.

Normally (jplerumque) he says that it cannot be identified from a single

act and there must be some degree of repetition. A continuous state of

affairs might suffice – he gives the example of a bridge being constructed

over a public road, which might simply be there, without objection, for

the required period – but there is no consideration of the possibility that a

single act might be enough in itself, provided that the circumstances were

such that popular consent could be inferred. The ambiguity inherent in the

combination of these two positions is in essence the corollary of the

flexibility that lies within this notion of custom as a backward-looking

justification for the adoption of some particular practice as a rule.

Werbőczy's second discussion of custom in the Prologue relates to its

relationship with lex.

Mention has already been made of his reproduc-

tion of the commonplace distinctions between the express or tacit nature

of the underlying consent and the written or unwritten form.

interesting – though no less commonplace – is his explication of the

qualities of custom in relation to lex. All of this is pure Bartolus, but it

brings out a different aspect of the nature of custom than that which has

just been examined. First of all, custom is the best interpreter of lex: if

the words of the law are of uncertain application, then recourse should be

had to custom in order to interpret them.

Secondly, a customary practice

contrary to the requirement of a lex might have the effect of abrogating,

or removing legal validity from, the lex.

Thirdly, a custom operating in

the absence of any relevant lex would be an imitatio legis, acting exactly

as if it were a lex.

No longer are law and custom, lex and consuetudo,

being treated as two independent sources of ius. Instead they form a

single organic whole capable of supplementing and interacting with each

other. The force of this becomes clear if we take account of Bartolus's

view that the underlying basis for the force of both lex and consuetudo

was the consent of the people; the only difference was whether that

consent was express or tacit. Given this basic unity, the complementary

relationship between them followed automatically. Werbőczy does not

himself make explicit that both forms derive from the consent of the

24 Above, p. 15.

25 Prologue, [11–12].

26 Above, p. 17.

27 Prologue, [11. 3]; Bartolus, Ad. D.l.3.9 no.2; Repetitio ad D.l.3.31, no. 5; ad D. 1.3.32.

28 Prologue, [11. 4]; Bartolus, Repetitio ad D.l.3.31, no. 2.

29 Prologue, [11. 5]; Bartolus, Repetitio ad D.l.3.31, no. 5.

20 Custom in the Tripartitum

people,

but if his approach in the Prologue is to be treated as a coherent whole

the only way to make sense of his position here would be to adopt the

theoretical starting point of Bartolus.

Werbőczy's third discussion of consuetudo follows on from this. In the

section De lege et statuto: ac consuetudine contraria quid sit sentiendum he

touches on the resolution of conflicts between custom and law. This he reduces

to two straightforward rules: a custom will be abrogated by a subsequent lex of

general application; and, by parity of reasoning, a lex will be abrogated by a

subsequent custom.

Throughout this section a careful balance is maintained

between the two different sources of law. Neither is given automatic

precedence over the other, either absolute or provisional; each has exactly the

same weight as the other. Again, this is straightforwardly Bartolist;

again it

brings into play Bartolus's approach to the relationship between custom and law,

and it seemingly commits Werbőczy to an acceptance of that position (if, that

is, we are to take the material in the Prologue at all seriously).

3. Custom in the Tripartitum: the Main Text

Turning from the Prologue to the main text of the Tripartitum, two features are

at once visible. The first is that there is now remarkably little reference to

custom at all, and certainly no hint of any theoretical consideration of its

operation. Secondly, in so far as there is any explicit reference to it, the word

seems to be used in a different sense from that in which it has been used in the

Prologue.

The theoretical slippage is signalled right at the beginning of Part One. The

title (found also heading the second and third parts) half picks up on the

division between law and custom found in the Prologue: De Tripartita Divisione

Iurium et Consuetudinum inclyti Regni Hungarie in Generali. But it is only

half picked up: in the Prologue ius forms an overarching

30 He says that this was once the case, but that now power is vested in the prince:

Tripartitum, II. 3. 311 should say that I am not at all convinced that we should treat the

Prologue as coherent in this way; it might easily be read as no more than a ragbag of pieces lifted

from Bartolus (or some other source) without any real thought as to how they

fitted together.

32 Prologue, [12]. A lex of special application would abrogate the custom within its own range of

application (eg within the place where it applied), but the custom would continue to operate outside

this range.

33 Bartolus, Ad D.l.3.31, nos. 4, 5; Repetitio ad D.l.3.31, no. 5.

David Ibbetson 21

category of 'law' made up of lex on the one hand and consuetudo on the

other, whereas here ius is set in opposition to consuetudo.

The theoret-

ical register has shifted; though the main shift is in the meaning of ius

rather than of consuetudo, the sense in which the latter is used is wholly

uncertain. Matters are made less opaque in the first sentence of the

opening section: having dealt with the general reflections in the Prologue,

now is the time to turn to a particular study of the customs of Hungary

(consuetudines inclyti Regni Hungariae). The same usage is found in the

second sentence: borrowing the standard trichotomy made familiar by the

Roman institutional structure, Werbőczy says that every Hungarian legal

custom (omnis consuetudo iuris qua utimur) relates either to persons, to

things, or to actions. Clearly, the meaning of consuetudines here has

changed considerably from that found in the Prologue: it is now being

used in the third sense noted above, designating the particular law of the

Kingdom of Hungary in contradistinction to the learned ius commune.

Legislation, lex, is now part of consuetudo, not something to be set in

opposition to it or complemented by it. A few paragraphs later, usage has

slipped again. At the beginning of the third title, Werbőczy apologizes for

a brief excursus into history: his real subject is not this, but the consuetu-

dines et peculiares approbatasque huius regni leges, the customs and the

particular and approved laws of this Kingdom.

Consuetudo is now, as at

the start of the Prologue, set in opposition to lex, and apparently used in

the second of the three senses earlier described. It is simply that part of

the law which is not legislative in origin.

There is only one other place in the Tripartitum where Werbőczy

provides any treatment of custom, in chapter six of the second part, Unde

Traxit Originem Consuetudo Nostra in Iudiciis Observanda.

Clearly

this must refer to the third sense of consuetudo, the law of Hungary as

distinguished from the ius commune, for the first source given is official

legislation, the constitutiones and decreta publica of the Kingdom.

The

34 Contrast Werbőczy's reference to the consuetudinarium ius of Slavonia and

Transylvania: Tripartitum, III. 3.

35 Tripartitum, 1, 3. Compare the same dichotomy, though in a slightly different form, at

the start of Part III: the leges et dudum approbatae consuetudines of Dalmatia, Croatia,

Slavonia, and Transylvania differ in certain details from the leges et consuetudines of

Hungary (Tripartitum, III. 2).

36 Tripartitum, II. 6.

37 And see too Tripartitum, II. 44 [8], explaining the circumstances in which a capital

sentence can be passed on an ecclesiastic person: 'Et haec constitutio ex generali

maxime decreto ... excerpta est atque processit. Quae etiam in generali modemo

decreto nostra roborata habetur, et confirmata.'

22 Custom in the Tnpartitum

second source, privileges granted by rulers, is on the face of it no less

formal, though there is greater hesitation about its legitimacy and

Werbőczy goes on to place limits on its effectiveness.

Thirdly, there is

legal practice, which derived only in small part from legislation or other

formal sources. Beneath the surface of this threefold division, though,

Werbőczy seems to be making use of the duality which lies behind the

Prologue, the distinction between authority stemming from the written

text and authority stemming from long usage. Constitutiones and decreta,

in the main, get their force from the legislated text; but there is a problem

with those that are so old that they have been repealed or varied by subse-

quent decrees. Some part of these provisions has none the less remained

in use for a hundred years and more: that part has taken its place in

consuetudo nostra – our law – by long usage. In the same way, when

dealing with the slightly awkward case of privileges, Werbőczy justifies

their position by reference to the fact that they have been treated as part of

the law by the long usage of judicial practice. Somewhat paradoxically,

when treating of the third of his sources – the practice whereby lawsuits

are begun, prosecuted, considered, and determined – he does not refer

expressly to long usage as the source of legal validity. He does, though,

attribute the origins of the system within which this practice operates to

the fourteenth-century Angevin kings, Charles Robert and Louis the

Great. Two hundred years, we might suppose, would be long enough for a

custom to be established, but the fact that the system has been in opera-

tion for such a time in no way entails that any particular practice has been.

There is no hint that this might matter. On the contrary, it is said that the

rights of the nobility depend on the continuity of this system; in a later

age, we would simply say that due process and respect for the Rule of

Law were essential to the protection of the rights of the individual.

4. Werbőczy and Custom

Werbőczy is not consistent in his use of custom throughout the Tripar-

titum. In so far as he could be said to have a theory, it is to be found in the

substantially Bartolist treatment given to the topic in the Prologue, where

custom is seen as that set of legal rules which are derived from long

usage, getting their force from the tacit consent of the populace. It would

be misguided to put too much weight on this, though. However Bartolist

the individual pieces of Werbőczy's argument are, he never locks them

38 Tripartitum, II. 6–18.

David Ibbetson 23

together in the way that Bartolus does, and never sets in place the essen-

tial foundation principle on which Bartolus builds, the idea that all law

stems from the consent of the people. Quite the contrary: though it might

once have been the case that legislative power was vested in the people,

he says, now it belongs to the prince. Werbőczy would not have been the

first or last legal scholar to pepper his preface with learned allusions

without thinking through the theoretical implications of what he is saying.

Moreover, whatever the theoretical slant of the Prologue, when we

come to the (sparse) references to custom in the text of the Tripartitum we

find that, although his meaning is not quite stable, the thrust of his anal-

ysis is very different from that of the Prologue. In the text, custom refers

substantially to national law: the law of Hungary in the first and second

parts; the law of Dalmatia, Croatia etc in the third. While this might be

customary in the sense of the Prologue, it might equally be legislative in

origin. We cannot therefore conclude that when he describes the law of

Slavonia and Transylvania as customary law {consuetudinarium ius) he is

meaning to say that the laws of those places derive purely from the usage

of the people.

Perhaps the most interesting feature of custom in the Tripartitum is

just how little use is made of it. Practically everything that is described in

the work is customary in all of the senses described at the beginning of the

present essay. It is an articulation of social practice which derives its legal

force from usage, and probably long usage; it takes the form of law which

has no legislated base; and it is local law rather than the learned law of the

ius commune. It was given royal approval as consuetudines approbatae.

It is hard not to draw the comparison with the Institutes of Gaius, which

similarly conceal the customary origin of most of their contents, or with

the Doctor and Student of Werbőczy's English near-contemporary Chris-

topher St German, for whom custom did have some part to play in the

foundation of the law but who seems none the less to have been at pains

not to undermine too heavily the special learning of the lawyers.

39 Tripartitum, Regis Consensus.

40 T. F. T. Plucknett and J. L. Bartons, eds., Doctor and Student (Selden Society, vol. 91),

London 1974, pp. 44–47, 56–59.

Administering the Law: Hungary's Loca Credibilia

Zsolt Hunyadi

'The notary's function was essentially that of witness: he had been

present, and had written down what happened; or he had seen a document

and drawn up a copy of it' – so wrote Robert Swanson on the role of

England's public notaries in the thirteenth century.

He could have written

almost the same words in respect of the uniquely Hungarian institution of

the loca credibilia: an institution which for several centuries co-existed in

Hungary with that of the public notaries.

The loca credibilia were,

however, rather more than scriptoria, 'copying shops', or institutions of

witness. Besides their role in recording and verifying transactions and in

drawing up deeds, the loca credibilia performed a vital function in

discharging the tasks of royal government and in undertaking judicial and

administrative duties on behalf of the ruler and of his principal agents.

The aim of the following brief survey is to indicate the principal char-

acteristics of this particular vehicle of 'private' legal literacy. The so-

called 'places of authentication' (loca credibilia) were institutions which

witnessed legal transactions mainly by issuing upon request charters

under their own authentic seal.

The background to this activity may most

immediately be linked to a decree of Pope Alexander III in 1166. This

1 Robert Swanson, 'The Church and its Records', in (ed.) Richard Britnell, Pragmatic

Literacy, East and West, 1200-1330, Woodbridge, 1997, pp. 147–64 (p. 160).

2 For the most recent summary (with a survey of the relevant literature), see Tamás

Kőfalvi, 'Places of Authentication (loca credibilia)', Chronica, 2, 2002, pp. 27–38. For

a detailed overview, see also Martyn Rady, Nobility, Land and Service in Medieval

Hungary, Basingstoke and London, 2000, pp. 62–78.

3 Cf. Győrgy Bónis, 'A közhitelűség szervei Magyarországon és a magyar hiteleshelyi

levéltárak', Levéltári Szemle, 14, 1964, pp. 118–42 (p. 125). See also by the same

author, 'Les auctorités de "foi publique" et les archives des "loci credibiles" en

Hongrie', Archivum, 12 (1962), pp. 97–104; Imre Szentpétery, Magyar oklevéltan,

Budapest, 1930, pp. 118–20; János Bak, Győrgy Bónis, Pál Engel, James Ross

Sweeney, Paul B. Harvey, Leslie S. Domokos (eds), The Laws of the Medieval

Kingdom of Hungary, 1000–1490. Decreta Regni Mediaevalis

26 Administering the Law: Hungary's Loca Credibilia

decree laid down that, after the death of witnesses, only those documents might be considered valid which had

been drawn up by public notaries (manu publica), or else which carried an authentic seal.

Studies of legal literacy indicate that sealed charters had acquired in large parts of Europe a legal character even

as early as the second half of the eleventh century and that a fundamental distinction arose around this time

between sealed and unsealed instruments.

In contrast to the Mediterranean region, in England and northern

France new vehicles of legal literacy were pressed into existence which were in several respects similar to the

Hungarian one. There were, thus, no public notaries in England before the late 1250s.

Consequently, at the

Council of London in 1237, Otto, the papal legate, increased the number of institutions (among others, chapter

houses and convents) whose seals might henceforward be deemed authentic.

This development should, of

course, be viewed as part of a much longer process during which 'the use of seals extended down the social scale

from princes and barons through the gentry to smallholders and even serfs'.

In accordance with the precepts of canon law, in France the seals of the pope, of the king, and of the

various religious houses as well as of persons having jurisdictional competence, were considered authentic.

Contrastingly, in Germany, all sealed documents retained a fides plenaria.

Despite the apparent

congruence between French and

Hungariae 1000–1526, Series I, 3 vols (in progress), Salt Lake City-Los Angeles-Idyllwild, 1992-1999, (hereafter: DRMH), 2, p. 250;

Ferenc Eckhart, Magyar alkotmány és jogtörténet, Budapest, 1946, pp. 176–83. The best concise work on this topic remains Franz

(Ferenc) Eckhart, 'Die glaubwürdigen Orte Ungarns im Mittelalter', Mitteilungen des Instituts für osterreichische

Geschichtsforschung (hereafter MIÖG), Ergbd. 9 (1915), pp. 395–558.

4 Cf. L. Bernát Kumorovitz, A magyar pecséthasználat története a középkorban,

Budapest, 1993, p. 14; Scripta vero authentica, si testes inscripti decesserint, nisi forte per manum publicam facta fuerint, ita quod

appareant publica, aut

authenticum sigillum habuerint, per quod possint probari, non videntur nobis

alicuius firmitatis robur habere: Wilhelm Ewald, Siegelkunde, Munich, 1914.

p. 42.

5 George Declercq, 'Originals and Cartularies: The Organization of Archival Memory (Ninth-Eleventh Centuries)', in (ed) Karl

Heidecker, Charters and the Use of the Written Word in Medieval Society, Turnhout, 2000, pp. 147–70 (p. 166).

6 Christopher Cheney, Notaries Public in England in the Thirteenth and Fourteenth

Centuries, Oxford, 1972, p. 15.

7 L. Bernát Kumorovitz, 'Az authentikus pecsét', Turul, 50,1936, pp. 45–68 (p. 47).

8 Michael T. Clanchy, From Memory to Written Record: England 1066-1307, London, 1979, p. 245.

9 Kumorovitz,' Authentikus pecsét’, p. 49.

Zsol

t Hunyadi 27

Hungarian practices, a critical difference existed. As László Mezey has shown, officiates in France issued

documents in their own names. In Hungary, by contrast, chapter houses and religious institutions always

published documents as corporations.

We may infer from this that the ecclesiastical character of Hungary's

loca credibilia lent these institutions their credibility as well as, perhaps, providing some sort of financial

guarantee for the parties concerned. Moreover (and as we will see), while the French officiales exclusively

administered private legal affairs, the Hungarian loca credibilia also acted at the behest of the royal curia.

The origins of Hungarian legal literacy can be traced back to the beginning of the eleventh century. Although

most charters attributed to St. Stephen are of dubious provenance,

it is widely accepted that the royal court

attracted learned and erudite men from Germany. The number of charters issued by the royal court scarcely

rose over the course of the eleventh century. Nevertheless, a respect for the written record is evident during the

reign of King Ladislas I (1077–95). Evidence of legal literacy is suggested by surviving or reconstructed

charters (although at this time they were issued without seals).

The canons of the Council of Esztergom,

published around 1100, provide further evidence of a wider reception of literacy.

The next step was the appearance of sealed private charters at the turn of the twelfth century, which partly

originated from the statutes of Ladislas I and of Coloman (1095–1116).

Although only one (reconstructed)

cartula sigillata is so far known, it has been shown that such documents were used in commercial transactions

between Jews and Hungarians as proof of purchase or of a loan.

During the late eleventh

10 László Mezey, 'A pécsi egyetemalapítás elözmenyei (A deákság és a hiteleshely kezdeteihez)', in (ed) Ándor Csizmadia, Jubileumi

Tanulmányok, Pécs, 1967, p. 68. See also Mezey, 'Anfänge der Privaturkunde in Ungarn und der glaubwürdigen Orte', Archiv für

Diplomatik, 18, 1972, pp. 290–302. See, for instance, the charter issued by an episcopal officialis of Paris in 1254: Imre Szentpétery,

Középkori oklevélszövegek, Budapest, 1927, pp. 37–38.

11 Six of the ten charters analysed proved to be forgeries while the rest have been interpolated or reformulated in the course of time.

12 From the years 1051, 1061, 1067, 1079 — given in György Györffy (ed.) Diplomata Hungariae Antiquissima ab anno 1000 ad annum

1131, Budapest, 1992, pp. 169, 182–85, 225–26.

13 Arts. 20, 21, 32: DRMH, 1, pp. 63–4.

14 Art. 7. (1077): ibid, p. 14; De Judeis, Art. 3: ibid, p. 66.

15 See L. Bernát Kumorovitz, 'Die erste Epoche der ungarischen privatrechtlichen Schriftlichkeit', Studia Historica Academiae

Scientiarum Hungaricae, 21, 1960, pp. 253–90.

28 Administering the Law: Hungary's Loca Credibilia

and twelfth centuries, the majority of sealed charters were issued at the request of the

beneficiaries involved. Doubtless they felt it important to have their rights and obligations

recorded in writing. In this respect, Hungarian usage conformed to wider European norms.

The other significant category of record consisted of charters drawn up by royal scribes.

characteristic feature of documents of this type was that their authenticity was based on the

attached royal seal which symbolized the king himself.

The final impulse which brought the places of authentication into existence was the

reform of the royal chancellery introduced by King Bela III (1173–1196). During Béla's

reign, beneficiaries ceased to be responsible for drawing up charters recording transactions;

this task was instead apportioned to the clerks of the royal chancellery. According to a widely

received opinion, Béla III was most probably influenced by Western European models, partly

French and, to a certain extent, English, but there is no agreement on this point. László Mezey,

for instance, has pointed out that French private legal literacy flourished only after 1220–

1230 and, thus, could not have influenced Béla Ill's reforms.

Instead, Mezey and others trace

the origin of Béla's reforms to the Byzantine court.

It may well be that the 'pragmatic

literacy' introduced by Béla's uncle, Manuel I, served as an inspiration, especially in respect

of the formal establishment in Byzantium at this time of defined vehicles and instruments of

authenticity (demosiosis).

16 Cf. David Postles, 'Country clerici and the Composition of English Twelfth- and Thirteenth-Century Charters', in (ed)

Karl Heidecker, Charters and the Use of the Written Word in Medieval Society, Turnhout, 2000, pp. 27– 42 (p. 29).

17 L. Bernat Kumorovitz, 'A középkori magyar magánjogi írásbeliség első szakasza (XI-XII. század)', Századok, 97,

1963, pp. 1–35 (pp. 11–12); Cf. Philippe Depreux, 'The Development of Charters Confirming Exchange by the Royal

Administration', in (ed) Karl Heidecker, Charters and the Use of the Written Word, pp. 43–62 (pp. 54, 56).

18 Cf. Ferdinand Lot and Robert Fawtier, Histoire des institutions françaises au moyen age, Paris, 1958, vol. 2, pp.

164–65: quoted by Mezey, 'A pécsi egyetemalapítás', pp. 63–64; Istvan Hajnal, 'Universities and the Development of

Writing in the 12

–13

Century', Scriptorium, 6, 1952, pp. 177–95; László Mezey, 'Ungarn und Europa in 12. Jahrhundert.

Kirche und Kultur zwischen Ost und West', in Probleme des 12. Jahrhunderts. Reichenau-Vorträge 1965–1967,

Vorträge und Forschungen 12, Stuttgart, 1968, pp. 255–73.

19 For instance, Géza Érszegi and Árpád Varga.

20 László Mezey, 'A hiteleshely a közhitelűség fejlődésében és III. Béla szerepe', in (eds) János Horvéth and György

Székely, Középkori kútfőink kritikus kérdései, Budapest, 1974, pp. 315–32 (pp. 329–31).

Zsolt Hunyadi 29

A second group of scholars – including Ferenc Eckhart, Imre Szent-

petery, L. Bernát Kumorovitz and György Bónis – have argued that the

places of authentication evolved as autocthonous institutions and that they

originated out of the office of pristaldus (usually translated as bailiff)

and of the role played in the eleventh and twelfth centuries by the major

chapter-houses in administering ordeals.

The importance of the pristaldi

in acting as a living record of transactions was reduced by the aforemen-

tioned decree of Pope Alexander III which, as we have seen, emphasized

that after the death of the witnesses, all other instruments except for

sealed documents lost their validity. Moreover, these bailiffs were regu-

larly bribed (or at least said to be) by the parties involved. The renewal of

the Golden Bull in 1231 regulated and restricted the role of the pristaldi.

As Article 21 laid down, 'because many people suffer harm from false

bailiffs, their summons or testimony shall not be valid without the witness

of the diocesan bishop or the chapter'.

This provision of the Golden Bull of 1231 indisputably assisted the

development of the places of authentication. Nevertheless, an equally

important influence was the administration of ordeals. The ordeal was 'a

medieval method of legal proof based on the belief in direct divine inter-

vention in the determination of guilt; the accused was bound to carry a hot

iron for a definite distance or had to put his/her hand in hot water, and was

deemed innocent if s/he emerged unharmed'.

The business of estab-

lishing guilt or innocence was overseen by the church. As a consequence,

ecclesiastical institutions were vested with an authority in determining

proof which served as the basis for their further accumulation of a fides

plenaria. Moreover, in the course of proceedings, the injured hand of the

accused person was bandaged and closed with a seal, which demanded the

use of seals in the churches concerned. It should, however, be noted that

the earliest charters issued by the loca credibilia were unsealed: that is to

say, sealing was not regarded as an indispensable element of the private

legal documents ab ovo.

Still, in the thirteenth century, the witnesses

21 Cf. DRMH, 1, p. 141; ibid, 2, p. 249.

22 Cf. ibid, 1, p. 148. The expression derives from the Slavonic 'pristav' — 'to be present'.

23 Ibid, l,p. 38.

24 Ibid, 1, p. 148. See also Rady, Nobility, pp. 65—66; Cf. R. C. van Caenegem, The

Birth of the English Common Law, 2nd ed., Cambridge, 1989, pp. 62–74.

25 Ferenc Eckhart, 'Hiteles helyeink eredete és jelentősége', Századok, 41 (1913), pp.

640–55 (p. 650); see also I. Borsa, 'Zur Beurkundstätigkeit der glaubwürdigen Orte in

Ungarn', in (eds) Kálmán Benda, Tamás Bogyay, Horst Glassl, Forschungen über

Siebenbürgen und seine Nachbarn. Festschrift für Attila T. Szabó und Zsigmond Jakó,

2 vols., Munich, 1988, 2, pp. 143–47.

30 Administering the Law: Hungary's Loca Credibilia

(testes) to a transaction acted as the principal means of evidence and they

might subsequently be called upon to tell what they recalled. As such, the

witnesses were separately named and listed as presente or presentibus in

the eschatocols of charters.

In short, the origin of the places of authentication may be attributed to

(1) the activity of the royal chancellery which served as a model, (2) the

development of customary practices most notably in respect of the ordeal,

and later (3) the use of the authentic seal. Documents sealed with an

authentic seal (sigillum authenticum) had complete authenticity (fides

plenaria): that is, they were to be given full credit by all parties

concerned.

Certainly, in respect of (3), Hungarian practice diverged

from West European norms. In Hungary, no one's seal was considered

authentic in respect of his own affairs. Indeed, even the places of authenti-

cation turned to each other to record their own legal transactions. Never-

theless, the conventions governing Hungarian practice served to confirm

and reinforce the authority and weight given to the seals of the principal

religious houses.

Which religious houses constituted places of authentication and when

did they acquire this role? The earliest were the leading chapter houses:

Veszprém in 1181, Székesfehérvár in 1184, Buda (subsequently known as

Óbuda) in 1211, and Arad in 1221; and soon thereafter, from the mid-thir-

teenth century, the Benedictine abbey of Pannonhalma, the Premonstrat-

ensian priory of Jászó, the Stephanite commandery of Esztergom, and the

Hospitaller commandery of Székesfehérvár. These constituted – along

with the other religious houses belonging to these orders – an embrionic

institutional structure.

According to recent studies, there were almost seventy places of

authentication in the medieval kingdom of Hungary and by the beginning

of the fourteenth century these institutions covered the entire realm.

Besides the cathedral and collegiate chapters,

one may also find the

convents of the Benedictines,

the Premonstratensians,

the

26 Cf. Eckhart, 'Hiteles helyeink eredete', pp. 654-55; Eckhart, Magyar alkotmány és

jögtorténet, p. 181; Kumorovitz, A magyar pecséthasználat, p. 13, p. 69; Ferenc Szakály, 'A

szekszárdi konvent hiteleshelyi és oklevéladó műkódése 1526-ig', Tanulmányok Tolna megye

történetéből, 1, 1968, pp. 9–60 (p. 13).

27 According to Eckhart (Magyar alkotmány- és jogtörténet, p. 182) fifteen cathedral and nine

collegiate chapters acted as places of authentication before 1526. By contrast, Zoltán

Miklósy has detected 28 chapters: Miklósy, 'Hiteles hely és iskola a középkorban', Levéltári

Közlemények, 18–19, 1940–41, pp. 170-78.

28 Thirteen convents: see Bónis 'A közhitelűség szervei', p. 132.

29 Six convents: ibid.

Zsolt Hunyadi 31

Hospitallers,

and the Canons Regular of St. Stephen. There is,

however, no sign of similar activity among either the Cistercians or the

mendicant orders. Some scholars have pointed out that the lack of a

conventual seal hindered such activities.

It is known, however, that the

Cistercians played an important role in charter production in Poland.

As a result of the development and consolidation of these institutions,

the 'written record' had superseded 'memory' by no later than the last

third of the thirteenth century. In respect of church affairs, however,

ecclesiastical courts did not accord full recognition to charters issued by

the loca credibilia?

This fact paved the way for the first public notaries

appearing in Hungary at the turn of the thirteenth and fourteenth centu-

ries. In contrast to the places of authentication, the public notaries had a

much reduced role and their competence was largely confined to the field

of canon law.

Certainly, there was much trespassing across legal

spheres. For instance, suits concerning filial quarters and dowers were

often raised before an ecclesiastical court but, inasmuch as they also

concerned landed property, cases of this type were usually 're-routed' to

the secular courts.

Since the owners of proprietary churches and monasteries were able (or

so it was alleged) to influence the business of record-keeping, King Louis I

(1342-1382) ordered in 1351 that the seals of the smaller religious houses

(conventus minuti) be withdrawn and broken.

The process of 'down-

sizing' was completed by 1353. As a direct consequence, from the mid-

fourteenth century, several ecclesiastical establishments ceased activity as

loca credibilia while several chapter houses and convents – most notably,

the chapters of Székesfehérvár and Óbuda, the Bosnian chapter, and the

30 Zsolt Hunyadi, 'The Locus Credibilis in Hungarian Hospitaller Coramanderies', in

(eds) Anthony Luttrell and Léon Pressouyre, La Commanderie: institution des ordres

militaires dans I'Occident médiéval, Paris, 2002, pp. 285–96.

31 E.g. László Solymosi, 'Észrevetelék a Ciszterci Rend magyarországi repertóriumáról',

Levéltári Közlemények, 55, 1984, pp. 237–51 (pp. 242, 248–50).

32 Anna Adamska, 'From Memory to Written Record in the Periphery of Medieval

Latinitas: the Case of Poland in the Eleventh and Twelfth Centuries', in (ed.)

Heidecker, Charters and the Use of the Written Word, pp. 83–100 (p. 91).

33 Eckhart, Magyar alkotmány és jogtörténet, pp. 176–83; Bónis, 'A közhitelűség

szervei', p. 127; Kálmán Juhász, A csanádi székeskáptalan a középkorban (1030–

1552), Makó, 1941, p. 101. See also Kálmán Juhász, 'Das Kapitel von Arad als

glaubwürdiger Ort', MIÖG, 62, 1954, pp. 406–24.

34 István Barta, 'Középkori közjegyzőségeink történetéhez', in (eds) L. Bemát

Kumorovitz and Loránd Szilágyi, Emlékkönyv Szentpétery Imre születése hatvanadik

évfordulójának ünnepére, Budapest, 1938, pp. 31–46.

35 11 December 1351 (Art. 3): DRMH, 2, p. 10.

32 Administering the Law: Hungary's Loca Credibilia

Székesfehérvár Hospitaller commandery — were given a country-wide

authority to issue charters in respect of private transactions.

***

The activities of the places of authentication can be categorized as either

'internal' or 'external'. Internal activities included (1) the issue of litterae

fassionales recording private legal transactions (e.g. the conveyance of

estates, divisions of property, pledges); (2) the publication of litterae rela-

tionales which were reports sent to the curia concerning the administra-

tion of out-of-court procedures; and (3) the transcribing of letters of

record (litterae transcriptionales), usually for the purpose of their safe-

keeping. As to their formal characteristics, three types of charters can be

distinguished: litterae privilegiales, patentes, and clausae. According to

the type (or content) of the given document, different set phrases — in

fixed order — can be found.

LlTTERAE PR1VILEGIALES

LITTERAE PATENTES

LlTTERAE CLAUSAE

/. PROTOCOLLUM

inttlulatio

intitulatio

inscriptio

relatio — address

salutatio

relatio — salutatio

II. CONTEXTUS

arenga

promulgatio

narratio

(narratio)

dispositio

clausulae

sanctio

corroboratio

III. ESCHATOCOLLUM

datatio

(datum or actum)

datatio

(datum or actum)

datatio

(datum or actum)

series dignitatum

sor testes

The general structure of the formulaic set of the charters issued by the places of authentication

36 Recorded by Werbőczy in the Tripartitum, II. 21 [2]: Tripartitum opus iuris

consuetudinarii inclyti regni Hungariae, Corpus Juris Hungarici, 1000-1895, (trans,

and ed.) Sándor Kolosvári, Kelemen Óvári, Dezsó Márkus, Budapest, 1897, (reprint:

Budapest, 1990) p. 282.

37 Cf. Zsolt Hunyadi, 'Regularities and Irregularities in the Formulae of the Charters

issued by the Székesfehérvar Convent of the Knights of St. John (1243–1400)', in (ed.)

Michael Gervers, Dating Undated Medieval Charters, Woodbridge, 2000, pp. 137–49.

Zsolt Hunyadi 33

Other characteristics of the charters published by the loca credibilia

include the use of either parchment or paper, handwriting, graphic

symbols and ornamentation, the seal itself and whether the deed was

recorded in the manner of a chirograph. The scribes (notarii), headed by

the lector of the chapter, and the custodes (or the priors)

of the religious

houses ensured that on each occasion the type of charter which was issued

befitted its content. Their work was aided by the use of model charters

and, later, formularies which contained set patterns for many types of

deeds.

The 'external' activity of the places of authentication included (1) the

perambulation of boundaries (reambulatio), (2) the institution of new

owners to estates (statutio, introductio), (3) the recording of last wills in

homes, and (4) the performance of inquests (either the inquisitio simplex

or the inquisitio communis'). The procedure in respect of this 'out-of-

court' business started either in the immediate vicinity of the place of

authentication or before one or more of its members and was performed

for the most part orally. In the case of mandates received from the curia

or a royal judge ordering a reambulatio, statutio or inquisitio, the compe-

tent official of the house opened the letter of instruction and read it aloud

in front of the canons or brethren. In most cases, a canon or brother was

then sent to the property or place named in the mandate to accomplish the

job on the spot (he was usually accompanied there by a royal bailiff or

homo regius). From the mid-fourteenth century, it became general prac-

tice for the scribes who wrote up the charters to name the cleric who was

appointed to perform these external services and to give an indication of

his rank. As recent studies have shown, in many instances the clerics

appointed were senior clergy and not simply choir priests. Receivers of

substantial prebends were supposed to be better equipped to resist temp-

tation and to be less open to bribery. The members of the loca credibilia

sent to perform these external tasks were supposedly also familiar with

both local custom (consuetudo terrae) and custom of the realm (consue-

tudo regni), notwithstanding their origin or mother-tongue. Having

completed the task in hand, the canon(s) or brother(s) returned to the

chapter-house or the convent and delivered an oral report. This was

subsequently included in the letter of relation which was sent back to the

curia or judge. The letter of relation reported that a statutio or reambu-

latio had been undertaken or, if it was contested, gave details of whom

had opposed it. In the case of an inquest, the letter of relation would

summarize the evidence which had been taken there. Sometimes, the

38 Zoltán Miklósy, 'Hiteles hely és iskola', p. 171.

34 Administering the Law: Hungary's Loca Credibilia

places of authentication also issued on request copies of the letter to the

parties concerned. The letter of relation, once received by the curia or

judge, served as evidence in ongoing legal actions. It might be used,

therefore, to demonstrate that a property was held unlawfully, that a

boundary was incorrectly laid, that a violent trespass had taken place, or

that an owner's claim to his estate was not certain. If further evidence was

needed, the curia or judge might instruct the place of authentication to

perform additional tasks or to summon the parties to court.

Places of authentication were very similar to each other with regard to

the revenue they obtained from their work (especially the fees received

for issuing a charter, performing an inquest and so on). It is difficult to

estimate accurately the overall income of these houses, for there is no reli-

able information available on the number of matters transacted by any

single locus credibilis. Fortunately, there are several articles in decrees

enacted during the thirteenth and fourteenth centuries which fixed the fees

for procuring charters and for performing other services.

Although

many of these passages refer to the fees which were due to the royal chan-

cellery, they still provide some indirect evidence as to the costs charged

by the loca credibilia. It is apparent, for instance, that ornate or painted

initials increased the price of a privilege. Even on relatively simple char-

ters a gap (sigla) can sometimes be found which was left for the (missing)

initials. This suggests that the writing and the decoration of the charters

represented different phases in their production. In respect of the Székes-

fehérvár Hospitaller commandery, for instance, all evidence of spectac-

ular ornamentation disappears after 1280. This was presumably due either

to the relative poverty of the parties who turned to this particular place of

authentication, or to the increased number of charters issued by its

scriptorium. From the middle of the fourteenth century the decorative

initials reappeared but never reached the previous level. Another factor

was the appearance in the first half of the fourteenth century of paper

which replaced parchment at least in the case of letters close and patent. It

certainly made charter production cheaper.

It is, however, difficult to calculate the exact proportion of income

received by those members of a chapter or convent who played a role in

39 1290 (Art. 16): DRMH, 1, p. 44; circa 1300 (Art. 19): ibid, pp. 74-75; circa 1300 (Art. 20):

ibid. p. 74–75. These fees remained valid until at least 1435. See DRMH, 1, p. 138; 1351

(Art. 21): ibid, 2, pp. 12–13.

40 Zsolt Hunyadi, 'The Knights of St. John and the Hungarian Private Legal Literacy up to the

Mid-Fourteenth Century', in (eds) Balázs Nagy and Marcell Sebők, ...The Man of Many

Devices Who Wandered Full Many Ways... Festschrift in Honor of János M. Bak, Budapest,

1999, pp. 507–19 (p. 514).

solt Hunyadi 35

the business of authentication. It is unlikely that the analogy of the chap-

ters can be applied to the monastic sites, since the leaders of the chapter's

chancellery, the lector and his deputy, the sublector, as well as the choir

priests, received their fees as part of their prebends. In respect of the

monastic orders it seems that the custos and/or prior, even though they

had a clear role in the authentication,

did not derive any separate

revenue from this activity. Additionally, with respect to the Hospitaller

commanderies, it should be noted that only a few commanderies profited

from this type "of legal business — most notably Sopron, Újudvar, and

Szekesfehervar. In this respect, the status of Szekesfehervar was signifi-

cant, since it was the only Hospitaller place of authentication which was

allowed to continue its activity after the reforms of King Louis I in the

early 1350s.

The Székesfehérvar commandery was one of the four most

important places of authentication and it continued its activity up to the

mid-sixteenth century, until the Turkish occupation of this part of the

Hungarian kingdom.

In conclusion, it is worth noting that the non-Hungarian reader may

find the loca credibilia less unique as an institution than Hungarian schol-

arship has traditionally allowed. Despite the many differences, there are

numerous similarities to be found in the activity of other European medi-

eval institutions which had a role in charter production and in adminis-

tering the law. Much new information has been unearthed since the

publication of Ferenc Eckhart's seminal work in 1915. Not only his

students but also a new generation of medievalists have contributed to our

understanding of the institutional history of the places of authentication.

The important task now is to couple the work of Hungarian scholars with

the wider European literature on charters, scriptoria and procedural law,

and to achieve thereby a truly comparative perspective.

41 Mezey, 'A pécsi egyetemalapitás', p. 77.

42 In the case of the commandery of Dubica, matters were arranged differently. See

Hunyadi, 'Locus Credibilis', p. 292.

Hungarian and Croatian Customary Law:

Some Contrasts and Comparisons

Damir Karbić

The relevance of the laws of the medieval kingdom of Croatia to medieval

Hungarian law should be obvious. After all, both Hungarian and Croatian

law originate from within very much the same historical milieu and from

within the same 'state complex'. At the very least, the Croatian codes of

law might be expected to provide some interesting analogies and addi-

tions. Nevertheless, the Croatian codes have been largely neglected by

legal historians. For the most part, scholars have preferred to analyse

them either from a philological point of view

or by reference not to

Hungarian practices but instead to the idea of a common Slavonic legal

inheritance.

Only very recently have the Croatian legal codes been given

the attention and context which they deserve.

In the first part of this essay

1 See, for example, Eduard Hercigonja, 'Neke jezično-stilske značajke Vinodolskog

zakona (1288) i Krčkoga (Vrbanskoga) statute (1388)', Slovo, 39–40 (Zagreb), 1990,

pp. 87–125.

2 Russian historians have invested particular effort in the study of some of these law

codes, but their interest has mostly been directed towards comparisons of Croatian law

codes with Russian and Slavonic codes in general. See, for example, the works of the

Russian scholar Boris Dimitrijevič Grekov: Vinodol'skij statu! ob obščestvenom i

političeskom stroe Vinodola, Moscow-Leningrad, 1948; and Polica, Moscow, 1951

(includes a Russian translation of the law code of Poljica). For a German version of the

latter, see Grekov, Die altkroatische Republik Poljica: Studien zur Geschichte der

gesellschaftlichen Verhältnisse der Poljica vom 15. bis 17. Jahrhundert, Berlin, 1961.

3 The first contributions in that direction are recent articles by Maurizio Levak and

myself. See Levak, 'Podrijetlo i uloga kmetâ u vinodolskom društvu XIII. Stoljeća',

Zbornik Odsjeka za povijesne znanosti Zavoda za povijesne i društvene znanosti

Hrvatske akademije znanosti i umjetnosli, 19, 2001, pp. 35–81 (with English-language

summary); Damir Karbič, 'Hrvatski plemićki rod i običajno pravo', Zbornik Odsjeka za

povijesne znanosti Zavoda za povijesne i društvene znanosti Hrvatske akademije

znanosti i umjetnosti, 16 1998, pp. 73–117 (with English-language summary). The

latter is a slightly amended version and translation of my MA thesis, The Croatian

Noble Kindred, Department of Medieval Studies, Central European University,

Budapest, 1994.

38 Hungarian and Croatian Customary Law

I shall give some brief information on the Croatian codes and on Croatian

customary law in general, while in the second I shall comment on some

particular issues regarding the character both of this material and of its

relationship to medieval Hungarian customary law.

There are in all six codes of customary law from medieval Croatia

dating from the end of the thirteenth century to the middle of the fifteenth.

Two of these, the law codes of Poljica and Novigrad, have a more general

character, while the remaining four, the law codes of Vinodol and Vrana

and the statutes of the ligae (i.e. allied districts) of Nin and Zadar, are

specific to particular social groups. Three (those of Vinodol, Poljica and

the ligae of Nin) are extant in the Croatian vernacular, two (those of

Novigrad and Vrana) are composed in Italian, while the remaining single

instance (that of the ligae of Zadar) is written in Latin.

The oldest of the six codes is from Vinodol and was drawn up at the

end of the thirteenth century.

As has been demonstrated by the recent

research of Mauricio Levak, the code of Vinodol was in the first place the

customary law of the castle-warriors (iobagiones castri)

of Vinodol,

which was a frontier area characterized by the existence of numerous

castles manned by members of this particular military group.

The code

was composed in 1288 following the transfer of the area from the authority

of the king to that of magnates, the counts of Krk. Since no other code of

customary law relating to castle-warriors within the kingdoms of Croatia

and Hungary is extant (or indeed ever probably existed), close study of the

law code of Vinodol sheds new light on their condition in general.

4 The law code of Novigrad was apparently written in Latin and translated into Italian in the

sixteenth century, approximately one hundred years after its original composition. In respect

of the statute of the ligae of Nin, it is hard to establish the original language as it survives

only in an eighteenth-century copy. Other law codes survive in their original form and

language.

5 Because of its importance for Croatian legal history, this law code has been edited several

times. For the most recent critical edition of the law code of Vinodol, see (ed) Josip

Bratulić, Vinodolski zakon 1288, Zagreb, 1988. For an English translation of this text, see

(ed) Lujo Margetić, Vinodolski zakon — La legge del Vinodol — Das Gesetz von Vinodol —

The Vinodol Law, Rijeka, 1998.

6 For the institution of castle-warriors in Hungary, see Attila Zsoldos, A szent király szabadjai.

Fejezetek a várjobbágysag történetéből, Budapest, 1999; Martyn Rady, Nobility, Land and

Service in Medieval Hungary, London and Basingstoke, 2000, pp. 20–22, 79–82; Pál Engel,

The Realm of St. Stephen: A History of Medieval Hungary, 895–1526, London, 2001, pp.

70–73.

7 Levak, 'Podrijetlo'.

8 For further details on the law code of Vinodol, see Lujo Margetić, Iz Vinodolske prošlosti,

Rijeka, 1980, and Tomislav Raukar, Hrvatsko srednjovjekovlje, Zagreb, 1997, p. 193 (with

literature cited).

Damir Karbić 39

The law code of Vrana was intended for another group of privileged

warriors, the so-called feudatarii of the castle of Vrana. These consisted of

lesser noblemen of varying origin (Croatian, Italian, some even

Hungarian),

who served as the garrison of Vrana and were recompensed

for their service with landed estates in the district.

The statutes of the

ligae of the districts of Nin

and Zadar

differ from the other codes

because they do not relate to some particular privileged group, but to village

communities (universitates villarum) in the districts belonging to the cities

of Nin and Zadar.'

The laws of Vrana and of the ligae of Zadar were

compiled in the mid-1450s as part of a greater wave of legislative

codification initiated by the Venetian government in the Croatian

territories under their control (which at that time consisted of the districts of

Dalmatian cities and parts of Croatian counties in the hinterland of Zadar).

The exact dating of the statute of the ligae of Nin cannot be established with

any certainty. Nevertheless, scholars are mostly agreed that it (or at least its

substance) belongs to the same period or a little later: that is the late 1460s or

early 1470s.

9 Among these, the de Fiorenzo family were of Hungarian origin. The family descended

from ser Ferençus, filius domini Petri. Peter was the son of Martin of Szentmárton and

in the 1370s a vicebanus of Croatia. For the de Fiorenzo family, see Albert genealogici

Zaratini, unpublished MS, Biblioteca Marciana, Venice (It. CI. VI Cod. 530 [12324]).

The MS was acquired through the bequest of the Zaratin historian, Giuseppe Praga.

10 The best edition of the law code of Vrana is provided by Stjepan Antoljak, 'Vransko

običajno pravo', Radovi Filozofskog fakulteta u Zadru, 18, 1979, pp. 167–219. See also

Miren Marevič Frejdenberg, '"Vranski zakonik". Novi spomenik hrvatskog običajnog

prava', Radovi Instituta JAZU u Zadru, 18, 1971, pp. 323–341, and Tomislav Raukar,

'Marginalije uz novootkriveni "Vranski zbomik" iz godine 1454', Historijski zbornik,

25–26, 1972–1973, pp. 369–375.

11 The statute is edited by Petar Karlič, 'Statut lige kotara ninskog', Vjesnik Hrvatskog

arheološkog društva, N. S., 12, 1912, pp. 287–298. The text of the statute was re-edited

by Karlič with corrections (but without the introductory study) under the same title in

the journal Mjesečnik pravničkoga društva u Zagrebu, 39, no. 1, 1913, pp. 394–402.

12 The statute is inserted in the sixteenth-century edition of the statute of Zadar as a

'reformation' (Ref. 137). For the text, see Statuta Iadertina cum omnibus

reformationibus in hunc usque diem factis, Venice, 1564, pp. 121–129. Modern

edition: (eds) Josip Kolanovič and Mate Križman, Zadarski statut, Zadar, 1997, pp.

626–633.

13 For further details on these statutes and local organizations, see: Đuro Ljubić, 'Lige i

posobe u starom hrvatskom pravu i njihov odnos prema Poljičkom statutu', Rad JAZU,

Zagreb, 1931, pp. 1–104 (pp. 1–3, 42–69); Marko Šunjić, Dalmacija u XV. Stoljeću,

Sarajevo, 1967, pp. 178–183; Raukar, Hrvatsko srednjovjekovlje, pp. 192, 218.

14 For the ligae of the district of Nin in this period, see Sunjić, Dalmacija, p. 181. The

code may, however, be dated even a little later, to the end of the fifteenth century or the

very beginning of the sixteenth, since the Ottomans are mentioned several times, but

the chronology needs further investigation.

40 Hungarian and Croatian Customary Law

On the evidence of the earliest extant copy, the date of the law code of

Novigrad has usually been ascribed to the early 1550s.

The recent

research of Nikola Jakšić shows, however, that the code originated in the

early 1450s, and thus in the same period as two of the three law codes

previously discussed.

The code was composed by members of the lesser

nobility of the district of Novigrad, a part of the county of Luka which

came under Venetian rule together with the cities of Zadar and Nin and

the castle of Vrana in 1409. According to the text of the law code, it

sought to record the customary law of Croatia and, in particular, of the

area between Nin and Knin.

The last extant law code of Croatian customary law is that of Poljica, a

region (a district or a county dependant on chronology) situated south-

east of Split.

The law of Poljica was apparently codified in the second

15 For an edition of the law code of Novigrad and an introductory study, see Miho Barada,

Starohrvatska seoska zajednica, Zagreb, 1957, pp. 149–177. A monograph with a more

modern discussion is still missing. For some comments on the law code of Novigrad, see

Lujo Margetić, Hrvatsko srednjovjekovno obiteljsko i nasljedno pravo, Zagreb, 1996, p.

245; by the same author, Srednjovjekovno hrvatsko pravo — obvezno pravo, Rijeka, 1997,

p. 287. Mladen Ančić is currently working on a study of this law code. Discussion with

him helped me clarify some ideas on the codification of the law codes mentioned in

this article, for which I owe him my sincere gratitude.

16 Nikola Jakšić, 'Nastanak novigradskog zbornika hrvatskog običajnog prava', in Jakšić,

Hrvatski srednjovjekovni krajobrazi, Split, 2000, pp. 170–180.

17 ... Qui de sotto scriveremo le consuetudini che sono state net paese di Croatia, cominciando

da Tnin afin a Nona ...: Barada, Starohrvatska, p. 158.

18 Some elements of Croatian customary law may also be found in the statutes of certain

Dalmatian and Croatian communes (for example, in those of Krk, Senj, Skradin, Šibenik,

Brač and Hvar), but in this paper I shall concentrate only on the law codes mentioned

above, which express Croatian customary law more directly. Among the codes of

Croatian customary law might also be included the law code of the Vlachs of the Cetina

county (Vlaški zakon), confirmed in 1436 by Count John (Anž) Frankapan, who was at that

time the count of Cetina. This law code relates, however, to a population living in a rather

different social system (the society of transhumants within the borders of a great estate)

as opposed to the law codes discussed in this paper. For an edition of this code (with an

introductory study), see Radoslav Lopašić, Hrvatski urbari. Urbaria lingua Croatica

conscripta, Monumenta historico-juridica Slavorum Meridionalium 5, Zagreb, 1894, pp. 1–

12. For the Vlachs in Croatia generally, see Nada Klaić, Povijest Hrvata u razvijenom

srednjem vijeku, Zagreb, 1976, pp. 607–610, and Raukar, Hrvatsko srednjovjekovlje, pp.

138–139.

Damir Karbic 41

half of the fourteenth century,

but the extant version is 'the new statute' of

the 1440s, which was recorded only shortly before the submission of the

county to Venice.

The code was promulgated by the organs of local

noble autonomy, most probably in order to stress their autonomous legis-

lative status. Until the fall of the Venetian Republic in 1797, the law code

of Poljica remained the principal legislative document of the area and it

acquired, albeit on a more limited and local level, a position and reputa-

tion similar to that enjoyed by Werbőczy's Tripartitum in Hungary and

northern Croatia.

In respect of the brief survey given here, it is worth noting several

points. The first is connected with the manner and timing of codification.

Historians generally agree that the Croatian codes were compiled at signal

political moments.

In the case of the law code of Vinodol, codification

was certainly influenced by the fact that the area passed from royal

authority to the rule of the counts of Krk.

In the case of the 'new statute'

of Poljica, codification was followed hard upon by the transfer of the

region from royal to Venetian authority and was undertaken during the

conflict between the supporters of King Wladislas I and those of Queen

Elisabeth, the Duke Stephen Kosača of Hum/Herzegovina, and Venice.

19 On this matter, see Ante Nazor, 'Granica izmeĎu Splita i Poljica i splitsko-poljički

sukobi u XIV. i XV. stoljeću (Dio prvi — Izdvajanje Poljica u zasebnu jedinicu i

pitanje pripadnosti Primorja tijekom srednjeg vijeka)', Zbornik Odsjeka za povijesne

znanosti Zavoda za povijesne i društvene znanosti Hrvatske akademije znanosti i

umjetnosti, 20, 2002, pp. 29–57 (pp. 42–44).

20 For an edition of the law code of Poljica, see Miroslav Pera, Poljički statut, Split, 1988.

There is an English translation of the text by Edo Pivčević ('The Statute of Poljica'

published for the British-Croatian Society in BC Review, 11–12, Bristol, 1978), but this

was unavailable to me at the time of writing. For more information on the law code of

Poljica, see the bibliography published in Pera, Poljički statut, pp. 555–581.

21 Because of this, the law code of Poljica was continually revised until the eighteenth

century, but sometimes in such a manner as to obscure the original version of its text.

However, most of the additions are dated, which facilitates its use.

22 Thus for instance, Josip Kolanović, 'Hrvatsko običajno pravo prema ispravama XIV. i

XV. Stoljeća', Arhivski vjesnik, 36, 1993, pp. 85–98 (p. 87).

23 The exact dating of the transfer of authority is still debated. See Nada Klaić, 'Kako i

kada su knezovi krčki stekli Modruš i Vinodol?', Vjesnik Historijskih arhiva u Rijeci i

Pazinu, 16, 1971, pp. 129–168; Margeti6, Iz vinodolske proslosti, pp. 15–26; Levak,

'Podrijetlo', pp. 39–40.

24 On the establishment of Venetian authority over Poljica, see Šunjić, Dalmacija, pp.

67–69; Ante Laušić, Postanak i razvitak Poljičke kneževine (do kraja XV stoljeća),

Split, 1991, 105–107. For the broader political context, see Engel, 77ie Realm, pp.

280–288; and Elemér Mályusz, 'The four Tallóci brothers', Quaestiones Medii

Aevi Novae, 3 (Warsaw), 1998, pp. 137–175 (pp. 155-157, 165–169).

42 Hungarian and Croatian Customary Law

In respect of the other law codes, it has usually been argued that they were

drawn up as a result of the transfer to Venetian rule of the territories to

which they applied. Closer examination suggests, however, that they were

in fact composed at a time of relative political and social stability, having

already been for about forty years under Venetian rule.

It is, neverthe-

less, undeniable that they were recorded at a time when Venice was

actively promoting legislative and administrative reform both within

Venice itself and in some of the Dalmatian cities which lay under its sway

(most notably Zadar, the statute of which achieved its final form at this

time).

To an extent, therefore, codification resulted from efforts by the

central authority to introduce order and coherence to existing legal prac-

tices by putting the law into writing.

Another issue relates to the manner in which these law codes were

recorded. Only those of Vinodol and Poljica were formally promulgated

by their respective local magistracies (although, of course, with the subse-

quent approval of their superiors). The remaining four were essentially

'private' compilations which were put together by well-informed

members of the local establishment. In the case of the law code of Vrana

and the statutes of the ligae, these were then promulgated by representa-

tives of the Venetian authorities. We do not know, however, what

happened in the case of the law code of Novigrad. We may infer,

however, that it received general acceptance from the fact that its content

was officially transcribed a century later by the count of Zadar. At the

time when the transcript was made, the Novigrad area was already threat-

ened by the Ottomans and, indeed, a part of Novigrad's territory lay under

Turkish occupation.

The interest shown by the Croatian lesser nobility of the Littoral in

writing down their customs was probably influenced by the more devel-

oped legislative practices of the neighbouring Dalmatian cities. The

legally literate culture of the Littoral contrasted with the predominantly

25 Zadar, Nin, Vrana and Novigrad came under Venetian authority in 1409. For further

details, see Šunjić, Dalmacija, pp. 40–47; Engel, The Realm, pp. 234–235.

26 For further details, see Tomislav Raukar, Ivo Petricioli, Franjo Svelec, Sime Pericic,

Zadar pod mletackom upravom 1409–1797, vol 3 of the series Proslost Zadra, Zadar,

1987, pp. 46–47.

27 For further details on the political situation in the mid-sixteenth century as it affected

Novigrad and its district, see Ivna Anzulovic, 'Razgranicenje izmedu mletacke i turske vlasti

na zadarskom prostoru 1576. godine, nakon Ciparskog rata', Zadarska smotra, 47, no. 1–3,

Zadar, 1998, pp. 53–148 (esp. pp. 57, 98). It is possible that the copy was made because the

Venetian authorities still entertained hopes in the early 1550s of repopulating the area.

Damir Karbić 43

oral culture of the hinterland. Moreover, the reason often given by histo-

rians that the codes were drawn up as a way of informing Venice as to

what local customs and practices were followed is unconvincing. First,

the Venetian authorities were cautious about involving themselves in the

local affairs of their subject territories.

Secondly, the laws with which

we are dealing here were applied not by the Venetian authorities but

instead by local courts that were administered by local judges and asses-

sors. In short, there was simply no need to inform or to be informed.

Nevertheless, whatever the motives behind codification, the fact remains

that the Croatian codes have provided historians with abundant material,

which enables comparisons with the customary law of Hungary.

In respect of Hungarian customary law, Werbőczy did his best to

provide a distillation of what he knew and to make such revisions and

adjustments as he thought appropriate. The compilers of Croatian

customary law were less educated than Werbőczy and consequently less

ambitious, but the codes which they drew up cannot be considered as

simple renditions of local custom as it really was. Legal historians have

demonstrated that the Croatian authors also drew on such authorities as

Justinian's Digest,

the acts of ecclesiastical councils (in the first place

that of Lateran IV of 1215 and of Lyons of 1245), the Decretum of

Gratian, the Sextae of 1298, and so on.

Sometimes they even quote (or

translate) these sources verbatim, but they seldom refer explicitly to their

sources. Unlike Werbőczy, it does not seem, therefore, that they were

trying to impress their readers by showing off their knowledge. Of course,

it may be that they trusted their readers to recognize the sources for them-

selves and thus to give them the credit anyway. It is more likely, however,

that the passages involved had by this time worked their way into

common legal thinking and that they had acquired a customary character.

The penetration of Croatian customs by elements of the European ius

commune carries important implications not just for this region but also

for our understanding of how Hungarian law itself may have developed.

Croatian and Hungarian customary law did not differ much from one

another — at least in respect of property and family law (with which the

present author is most familiar). The congruence between the two is not

surprising given that the social systems of both countries were practically

28 On this matter, see Šunjić, Dalmacija, pp. 80–81, 178–184.

29 See, for example, art. 49c of the law code of Poljica, which is almost a direct

translation of Novella 115 (from 542 AD). For further details, see Margetić, Hrvatsko

srednjovjekovno obiteljsko, pp. 269–271.

30 For further details, see Pera, Poljički statut, pp. 392–394.

44 HungarianandCroatian Customary Law

parts of one more or less unified structure. This was particularly the case

in respect of the Croatian and Hungarian nobilities in whose rights both

Werbőczy and the Croatian law codes were primarily interested. Never-

theless, there were some slight differences. For instance, Croatia did not

recognize the institution of the filial quarter and it preferred the dowry to

the dower.

On the other hand, the differences between the customs of

Croatia and other regions (including Hungary) were frequently empha-

sized at the time.

Despite this apparent congruence, differences between the customs of

Croatia and those of other regions (including Hungary) were frequently

remarked upon during the course of the later Middle Ages.

The most

famous example of this arose in 1361 in the context of a law suit between

the Zaratin nobleman James de Cesamis (by origin a member of Croatian

nobility) and the Glamočani kindred. During the course of the suit, King

Louis transferred the case to the court of the Croatian ban, Nicholas

Szécsi, instructing the ban to proceed according to Hungarian and not

according to Dalmatian or Croatian custom.

Louis's decision has

provoked astonishment among historians, since both King Louis and Ban

Nicholas usually acted to promote Croatian customs, as indeed did the

royal Angevin officials in Croatia.

Moreover, it does not seem that in

this particular issue there was any significant difference between

Hungarian, Croatian and Dalmatian customary arrangements. Almost

certainly, Louis's decision was taken on pragmatic grounds and had

nothing to do with any supposed primacy of Hungarian law. Since James

was a Dalmatian who might reasonably expect to be judged by his own

law, and since the Glamočani counted as Croatian, Hungarian customs

might be seen as a neutral set of principles which favoured neither side.

A comparable instance was recorded in 1375, although on this occa-

sion it worked to the advantage of Croatian customs. In that year, Charles

of Durazzo, duke of Croatia-Dalmatia, set aside a judgement previously

31 For further details, see Karbić, 'Hrvatski plemićki rod'.

32 For further details, see Kolanović, 'Hrvatsko običajno pravo', pp. 90–95. See also the case

regarding differences of customary law of Croatia and Slavonia in an inheritance dispute in

1499 (Karbić, 'Hrvatski plemicki rod', p. 101, esp. note 121).

33 Tadija Smičiklas, Diplomatički zbornik Kraljevine Hrvatske, Dalmacije i Slavonije.

Codex diplomatics Regni Croatiae, Dalmatiae et Slavoniae, 13, Zagreb, 1915, no 127,

pp. 185–190 (p. 188).

34 As an example, see Stjepan Antoljak, 'Izumiranje i nestanak hrvatskog plemstva u

okolici Zadra', Radovi Instituta Jugoslavenske akademije znanosti i umjetnosti u Zadru, 9,

1962, pp. 55–115 (p. 55).

Damir Karbić 45

passed in his court on the basis of Sicilian law and returned the case to

the ban's court in Knin to be adjudicated according to Croatian

customs.

Sicilian customs and procedures were plainly at odds with

Croatian practice: hence the decision to rehear the case according to

Croatian legal norms. Moreover, in this case Sicilian customs had been

followed almost coincidentally as the duke, being himself a South Italian

Angevin prince, relied in his chancellery on legal experts drawn from his

Italian dominions.

There are several additional cases of this type where actions were

moved from one sphere of customary law to another, including one which

contrasted the custom of Poljica to that of the whole of the kingdom of

Croatia.

It seems, however, that in all these cases — just as in the two

outlined above — the reasons for moving the case were pragmatic and

were not bound up with any such notion as there being a hierarchy of

customary laws in which local codes assumed an inferior or subsidiary

position. Cases were moved on grounds of expediency and suitability.

Thus, even this brief survey suggests that we should consider customary

provisions as they were followed in the different kingdoms and parts of

Hungary and Croatia not in terms of a hierarchy or of a competition for

priority but instead in terms of the coexistence of complementary legal

35 See for example Kolanovic, 'Hrvatsko običajno pravo', pp. 95–97.

36 For further details, see Nazor, 'Granica', pp. Al–A'i.

37 For further details on the acceptance of this principle in the fourteenth- and early

fifteenth-century kingdom of Hungary in general, see: János M. Bak, Pál Engel, James

Ross Sweeney, 'Statute Law and Custom', in (eds) Bak, Engel, Sweeney, The Laws of

the Medieval Kingdom of Hungary, vol. 2, Salt Lake City, 1992, pp. xlv–xlviii.

Hungarian Procedural Law and Part Two of the

Tripartitum

Martyn Rady

1. Introduction

The Tripartitum was presented to the Hungarian diet in 1514 and

published in 1517. Although some alterations were made in the course of

the intervening period (most notably in respect of III. 25 [2], on the legal

condition of the peasantry), the vast bulk of the work as well as its

internal organization remained unchanged. The Tripartitum is, as its name

suggests, arranged in three principal parts, to which are attached a

Prologue and a number of smaller items: a preface, dedication to the

reader, the text of the royal approbatio, several poems, and so on.

Werbőczy explained in the opening chapter of Part One, he had originally

sought to arrange the main body of the text in three parts according to the

civilian distinctions of personae, res and actiones, but had been unable

for practical reasons to keep to this scheme. Thus, Part One is concerned

with both personae and res, Part Two with procedures and sources of

legal authority, and Part Three with those subordinate jurisdictions (coun-

ties, cities, Transylvania, Croatia, Slavonia, and so on) from which a case

might be moved to the royal courts. In what follows, we are principally

concerned with Part Two of the Tripartitum and with what it conveys in

respect of Hungarian procedural law.

The second part of the Tripartitum is formally divided into two

sections of unequal length. The first of these extends from chapters two to

seventeen and treats primarily upon the sources of legal authority. The

second section, which is entitled the 'Continuation' (Prosecutio), deals

1 Although it received the royal approval, the Tripartitum never obtained the royal seal

and was not formally communicated to the counties. Although later referred to as 'the

Decretum', the Tripartitum lacked the legal character of a decretum. Its authority

rested instead on use and custom.

48 Hungarian Procedural Law and Part Two of the Tripartitum

exclusively with procedure and extends from chapter eighteen to the end

of Part Two — almost seventy chapters in all. The opening chapter of Part

Two serves an introductory purpose and announces the ordering of the

text which follows. In this first chapter, Werbőczy explains that, with Part

One of the book now complete, he will remark on 'the procedures used in

actions and suits, the execution of judgements and the order in which

sentences are to be passed in these matters' (de causarum, et litium

processibus, et executionibus, ac sententiarum super his ferendarum

serie). He goes on to indicate, however, that before embarking upon this

task, he will discuss not only how a 'constitution or general decree of the

prince should be understood' but also the origin of the custom and

unwritten law 'which at this time all of us use'. This prefatory account

occupies the first section of Part Two, while 'the procedures used in

actions and suits' and their accompaniments make up the Continuation.

2. Sources of Legal Authority

Werbőczy gives no explanation for his decision to include at the begin-

ning of Part Two a lengthy discussion on the origins of Hungarian

customary law, on the rights of the ruler in respect of legislation, and on

the relationship between privilege and statute {decretum)} At first sight,

these chapters might be thought to belong more properly within either the

Prologue or the opening chapters of Part One.

This would seem to be

particularly the case in respect of Werbőczy's tortured account of the

translation of authority from the populus to the rex under St Stephen

(1000–38) — a translation which apparently did not deprive the populus

of its law-making capacity (II. 3).

There was, however, some logic

2 A decretum was a law passed by the diet which received the royal assent.

3 Indeed, such a rearrangement was subsequently undertaken in the early eighteenth-

century Novum Tripartitum. See National Széchényi Library, Budapest (hereafter

OSzK), Fol. hat., 559. The mid-sixteenth century Quadripartitum, by contrast,

dispensed with a Prologue. Some of Werbőczy's own Prologue was, however,

retained and conjoined with the discussion of custom given in Part Two of the

Tripartitum. This combined account formed the opening chapters of Part Three of

the Quadripartitum. See Quadripartitum Opus Juris Consuetudinarii Regni

Hungariae, Zagreb, 1798.

4 Apologists of Habsburg absolutism were swift to identify the contradictions in

Werbőczy's account. See Izdenczy's 'Etwas von Verböcz', discussed in Ferenc

Strada, 'Izdenczy József. Az államtanács első magyar tagja', A Gróf Klebelsberg

Kuno Magyar Történetkutató Intézet Évkonyve, 10, 1940, pp. 54–149 (pp. 69–70);

László Kövesdy, Examen Verböczyanum, Pest, 1785, p. 58.

Martyn Rady 49

behind Werbőczy's broad arrangement. The rights and obligations which

were tested in the courtroom rested on legal instruments which included

decreta, customary provisions, royal privileges and other types of deed.

The weight attaching to these, their validity, and the correct priority to be

accorded to the one over the other were vital matters in assessing any

individual legal claim.

Werbőczy's interest in establishing a hierarchy of legal authority, by

reference to which claims might be assessed, compelled him to tackle

anew the relationship of statute to custom. In the Prologue, Werbőczy had

presented custom and statute as being separate, equal and competing

repositories of law. In Part Two, by contrast, he achieved a formulation

which comported more with contemporary Hungarian notions of legal

authority.

As he asserted, the provisions of statute law were only good in

so far as they were approved by use; indeed, statute might be invalidated

by contrary practice — 'for actual and continuous use often overturns a

law' (II. 2 [9]). In contrast to the Prologue, where he had declared that a

later statute might unconditionally overturn an earlier custom, in this part

of the work Werbőczy suggests that only the most recently-enacted

statute might do so, for it was not yet possible to determine whether it was

framed for good or for bad and thus, by implication, whether it carried the

sanction of custom (II. 2 [10]). As Werbőczy argued, however, the rela-

tionship between statute and custom was reflexive. The efficacy of a

statute rested on use, but at the same time statutes might themselves

mould and shape custom. Accordingly, even elements of the oldest laws

of the kingdom had 'flowed down and been carried over into our custom'

(II. 6 [9]). Likewise the procedural innovations of the fourteenth-century

Angevin kings had by use acquired a customary character sufficient to

make them inviolable, impervious to any subsequent alteration by statute,

and indeed the bedrock of the nobility's privileges (II. 6 [12–13]).

Nevertheless, custom was more than statute confirmed by use. To

demonstrate this point, Werbőczy turned his attention to those other

sources which shaped and determined Hungarian customary law. To

begin with, Werbőczy asserted that the broad principles of Hungarian law

rested almost entirely on Roman and canonical legal sources: ex pontificii,

caesareique juris fontibus (II. 6). He did not, however, dwell upon this

observation. Instead, he moved smartly on to identify two sources of

5 See in particular the important discussion by the editors of The Laws of The Medieval

Kingdom of Hungary ISO 1–1457 {Decreta Regni Mediaevalis Hungariae, vol 2), eds

János M. Bak, Pál Engel, James Ross Sweeney, Salt Lake City, 1992, pp. xlv — xlviii.

50 Hungarian Procedural Law and Part Two of the Tripartitum

custom which were additional to statute but which, by his arrangement of

the text, seem to be imbued with an almost equal efficacy. The first of

these was royal privilege. As Werbőczy explained, rights extended by the

ruler and upheld repeatedly in court acquired a customary character (II. 6

[10]). They thus ceased to rest on the sanction of privilege but aquired

efficacy through use. By the same token, rights given in a privilege, but

not exercised, lost over time their validity (II. 12 [6]).

The second source of authority comprised in Werbőczy's account the

decisions of judges. As Werbőczy put it, 'custom has come out

[emanavit] of the verdicts of the judges ordinary of the kingdom and

from repeated letters of adjudication passed and delivered and composed

in one and the same order, manner and process on many occasions, and

confirmed by their lawful execution' (II. 6 [11]). Werbőczy gives no

indication as to whether he understands by this anything akin to a declar-

atory theory of the law.

Nor does he suggest how many judicial deci-

sions might be needed to make a custom — this would be left to later

commentators.

It is certainly the case that, in the earliest years of the

sixteenth century, the diet retained an interest in the content of judicial

decisions and in their relationship to the customs and laws of the realm.

Indeed, it is from this time that we have the earliest evidence of the

compilation of something resembling a court report — the so-called

Decisiones Tabulae tempore Wladislai R. in Curia Regiae Majestatis,

6 A common enough civilian view. See Peter Stein, 'The Civil Law Doctrine of

Custom and the Growth of Case Law', in Scintillae Iuris. Studi in memoria di Gino

Gorla, 3 vols, Milan, 1994, i, pp 371–81 (p. 373).

7 On the declaratory theory of the law, see Rupert Cross and J.W. Harris, Precedent

in English Law, 4

edition, Oxford, 1991, pp. 25–8.

8 Stephen Huszty, Jurisprudentia practica seu Commentarius novus in Jus

Hungaricum, Nagyszombat, 1766, p. 27 (ad I. 4); János Szegedi, Tripartitum Juris

Hungarici Tyrocinium, Kassa, 1764 (first published in 1734), pp. 53 (ad pro. 11),

237 (ad II. 2), 276 (ad II. 6); Andreas Huszti, Iurisprudentia Hungarico

Transilvanica, Szeben, 1742, p. 60; Commissio Systematica. Observationes in

Tripartitum, OSzK, Qu. Lat., 2378, fol 57v. We do not wish to enter here into the

issue of judge-made law in Hungary. Plainly, as Szegedi pointed out (ibid, pp.

13–4, Ad lectorem), the absence of anything resembling the reports of the Roman

Rota or of the scabini of Leipzig must qualify all arguments in this direction.

Szegedi preferred to see the law as deriving from praxis and learned by wrangling

in patvariis: i.e. that the law was made by lawyers and not by judges. Cf. the

fourteenth-century Ars Notarialis which similarly noted that the law was learned

ex auditu — iuvenes a senioribus et compares a comparibus, cited by György

Bónis, Középkori jogunk elemei. Római jog, kánonjog, szokásjog, Budapest, 1972,

p. 161.

9 1505: 10 (5). Discussed by József Illés, Bevezetés a magyar jog történetébe.

Aforrások története, Budapest, 1910, pp. 84–5.

Martyn Rady 51

judicialiter per sententiamfactae.

In contrast, however, to later writers

(most notably Kitonich), Werbőczy does not cite specific decisiones to

make a point. At the very most, all he gives us are reminiscences and

reflections derived from his own experience as a judge.

Having addressed the three sources of legal and customary provision

— namely, decreta, privileges and judicial decisions — Werbőczy turned

to more practical matters and, specifically, to the question of the content

and context of privileges, for in these were recorded those rights

belonging to individual noblemen which were most likely to be contested

in court (II. 7–12). Werbőczy listed the ways in which privileges could be

rendered invalid — namely, by statute; by their formal revocation; by

their repeated repudiation by judges; by their harming the rights of others;

by not conforming in their content to the principles of law and custom;

and by failure on the part of the recipient to exercise the rights included in

the privilege. Thereafter, Werbőczy's account logically passed to a brief

discussion

of seals which led in turn to a list of the kings of Hungary

whose privileges might be deemed authentic, as well as to the types of

seal which might be expected to be found on charters issued by individual

rulers. In several cases, extensive extracts are given in the text, taken from

surviving charters, as further tests against which an individual instru-

ment's validity might be judged. The whole point of this exercise was to

communicate the formal marks of proof by reference to which the authen-

ticity of a privilege could be established. Hereafter ensued a discussion of

forgeries. Werbőczy indicates the very large number of forgeries which

had been produced in the middle decades of the fifteenth century, and he

reproduces in its entirety a letter of judgement issued by the royal council

in 1448. This document condemned to death the notorious forger, Gabriel

Litteratus, and listed several dozen of his most conspicuous forgeries with

reference to the purported issuing agency, the recipient and the contents

of the forged deed (II. 13–4).

Even documents which were not forged might, however, lack legal

authority in a court of law. In respect of these, Werbőczy discusses two

categories (II. 15). The first consisted of transcripts of privileges, in

respect of which Werbőczy repeated the provisions of article 96 of the

decretum of 1492., According to this enactment, transcripts were not

10 OSzlC, Fol. Lat., 4023, Codex Ilosvay, fols 122r–124v. A garbled version of this text

is given in J.N. Kovachich, Notitiae Praeliminares, Pest, 1820, pp. 400–6. See also

György Bónis, Közepkóri jogunk elemei. Római jog, kánonjog, szokásjog, Budapest,

1972, pp. 218–22.

11 II. 14. [49]; II. 27 [4–5]; II. 83 [9].

52 Hungarian Procedural Law and Part Two of the Tripartitum

considered valid instruments unless they had been copied from the orig-

inal document either in the presence of an ordinary of the realm or, upon

the mandate of a judge, in any one of the kingdom's places of authentica-

tion (loca credibilia). Werbőczy permitted, however, copies of original

charters which were retained in the depositories of loca credibilia, to

retain a fully legal authority (II. 15. [3]). This more fully conformed to

customary practice, although in several other respects both Werbőczy's

account and the law of 1492 diverged both from custom and subsequent

use.

The second category of legally dubious deeds, as identified by

Werbőczy, consisted of charters drawn up in loca credibilia on behalf of

someone of whose identity the authenticating agency had no firm knowl-

edge. Privileges of this type, which were conspicuous by the formula, de

cujus, vel quorum notitia nos talis homo certificavit, aut assecuravit (II.

16), were automatically invalid unless the chapter or convent was satis-

fied that the person on whose behalf the deed was issued actually existed

and was known to have given their consent to its publication. Impersona-

tion and 'ghosting' (larva) were evidently recurrent problems in cases

proceeding before Hungarian courts, particularly those affecting the alien-

ation of land where the consent of relatives was required, and stiff penal-

ties were threatened in the event of any chapter or convent colluding in

this crime.

The final chapter (II. 17) of the first section of Part Two is addressed

obliquely to judges of the realm and it reviews the methods and type of

investigation which they should undertake in order to establish the

veracity of deeds brought before them. Judges are specifically enjoined to

pay heed to the language of the document, to its seal (but not worry over-

much if its broken), to specific references contained within the document,

and to pursue any suggestion of falsification or fabrication. Noblemen of

the realm are similarly told to disclose attempts to impersonate them or to

have false deeds issued in their name.

12 Imre Hajnik, Okirati bizonyitás a középkori magyar perjogban, Budapest, 1886

(Értekezések a társadalmi tudományok köréből, viii/5), p. 39.

13 My colleague, Zsolt Hunyadi, tells me that in all five cases of larva which he has

uncovered, the culprits are women. This would coincide with my own finding in

respect of the ghosting of an alienam mulierem — Hungarian National Archive,

Collectio Antemohácsiana (hereafter, Dl), Dl 17171. The explanation must surely

be that women were less likely to be recognized in court on account of their

seclusion and so their impersonation was easier. See also 1492:97.

Martyn Rady 53

3. The 'Continuation' and its Limits

The Continuation of Part Two is strictly dedicated to matters of proce-

dure, as followed in the central curia courts of the realm.

It is, however,

unusual in its arrangement. Because of its chronological treatment of the

stages of an action, the Continuation resembles at first glance any one of

the many ordines judiciariae which were published widely in Europe as

guides to procedure in ecclesiastical courts.

Whereas, however, the

ordines judiciariae usually aimed at a comprehensive review of proce-

dures, Werbőczy's account is selective and it leaves out large chunks of

the judicial process. Instead, therefore, of taking us through the various

stages of an action, Werbőczy moves briskly from the summons to the

proof, and thence to the sentence and remedies. Although there are indica-

tions in the text with respect to the procedures to be followed in the court-

room, these are not discussed by Werbőczy in any detail but are only

alluded to. At no point in the text does Werbőczy fulfil the promise given

in the first chapter to explain the series sententiarum (that is, the passage

of interlocutory judgements) which moved the case within the courtroom.

Moreover, unlike later commentators, Werbőczy discusses neither the

personnel who might be present in the court, nor even which of the

several courts in the curia were the most appropriate for specific types of

action. In respect of the last point, all we are given is a short account of

the relationship between secular and ecclesiastical courts, the purpose of

which is to explain that actions involving debt or land should not be

brought before church tribunals (II. 52). Elsewhere, as for instance in his

14 Several courts functioned in the curia. The most important was the court of the

personalis who represented the king's 'personal presence'. The court of the personalis

was a collegiate court on whose bench or tabula sat the other principal judges of the

realm together with assorted dignitaries and noblemen. The justiciar, palatine and

tavernicus had their own courts, the competences of which partly overlapped with the

personalis court. Unscrupulous litigants might accordingly start the same case in

several courts to run concomitantly (see 1.70 [10]). In the late sixteenth century, the

palatine as locumtenens substituted for the king's propria persona, i.e. his 'real' self.

The court which he headed was later renamed the Septemviralis, and counted as the

kingdom's supreme court of appeal. Since, however, the palatine was usually too busy

to attend, the Septemviralis court was in reality most often presided over by the justiciar

(országbiró).

15 See thus, A-M. Stickler, 'Ordines Judiciarii', in Dictionnaire de droit canonique, vi,

Paris, 1957, cols 1132–43; also, Ludwig Wahrmund, Quellen zur Geschichte des

Römisch-kanonischen Processes im Mittelalter, 5 vols, Innsbruck and Heidelberg,

1905–31.

54 Hungarian Procedural Law and Part Two of the Tnpartitum

discussion of inquests, Werbőczy presumes his audience to be already

familiar with the differences between the institutions which he describes.

The explanation for Werbőczy's abbreviated treatment of procedure

lies in respect of his audience. From the fourteenth century onwards, legal

actions in Hungary were not only largely determined by written instru-

ments but also conducted in the main by attorneys acting on behalf of the

individual litigants. As elsewhere in Europe, in Hungary also, 'the parties

disappeared behind their advocates and lawyers'.

In many cases, there

was no longer any need for the parties to attend court at all — indeed, the

whole business might be wrapped up in private discussions between the

lawyers and the judge in the inn.

Under these circumstances, Werbőczy

evidently saw little point in discussing procedural matters which would

normally be handled on a nobleman's behalf by his agents. Instead, he

confined his account to what he regarded as the most important parts of

the action where the noble litigant was most likely to be directly involved.

Indeed, towards the end of Part Two, Werbőczy provided his noble audi-

ence with a 'check list' which itemized those particular matters which

should be attended to in order to prevent a suit from failing (II: 82). In

short, the Continuation is addressed to noblemen who are presumed to

understand the broad outlines and vocabulary of procedure but not the

details in which they might be personally involved, and less so to the

attorneys who actually managed their suits in court.

In order, thus, to reconstruct Hungarian procedure as followed in the

early years of the sixteenth century, we must look beyond Werbőczy's

account. Fortunately, there are other sources on which we may rely. The

most important of these are surviving formularies and the various types

of record issued during the course and at the conclusion of cases passing

through the courts. Although the litterae judiciales and sententionales

issued by the courts are themselves also terse and abbreviated, the

16 John Gilissen, 'La preuve en Europe du XVIe au début du XIXe siècle', Recueils

de la Société Jean Bodin, 19, 1965 {La Preuve, vol 2), pp. 755–833 (p. 762).

17 By the eighteenth century, the collegiate structure of the courts had become so akin

to a private committee that it was exceptional for the parties even to be called to

give oral evidence. The entire proceedings were handled on the basis of the

documents submitted, even in the case of criminal suits. In the 1790s, therefore,

Ferenc Kazinczy did not attend the sessions of the Tabula Regia which handed

down the death penalty to him for high treason, but he seems to have peeked into

the evidently shambolic meeting of the Septemviralis court which upheld the

judgement. See Kalman Benda, A magyar jakobinusok. Iratok, levelek, naplók,

Budapest, 1957, esp. pp. 261–2. (Kazinczy's sentence was later commuted by

Francis II.)

Martyn Rady 55

signaturae or notes which often accompany them yield important clues

with regard to the stages of an action.

Additionally, we may work back-

wards from later records and court manuals which survive in large quan-

tities from the seventeenth and eighteenth centuries, as also from the

mid-sixteenth century Quadripartitum which was intended (in vain, as it

turned out) to replace the Tripartitum. Obviously, this material should be

treated with caution, for additional procedures later entered Hungarian

court practice, particularly in respect of remedies in law. The reconstruc-

tion which folldws is intended to supplement and explicate Werbőczy's

own abbreviated account of procedure. It will, however, be clear from

the start that an action in Hungarian law broadly adhered to practices

followed in ecclesiastical courts in Catholic Europe. Certainly, some

local peculiarities will be evident. These should not, however, obscure

Hungary's general conformity to Romano-canonical procedural law and

the extent to which, as Werbőczy explained, Hungarian practice drew its

inspiration ex pontificii, caesareique juris fontibus.

4. Commencing an Action

Despite the wealth of material on which we may rely, the precise method

of commencing a suit remains far from certain. The surviving charters

imply that the action was begun by verbal petition to the ruler or to one of

his principal judges: hence the formulae in letters introducing an action,

exponitur nobis [id est: regi, iudici], expositum est nobis, dicitur nobis,

and so on. Seventeenth-century materials suggest the use of oral supplica-

tiones which were subsequently written up in the vernacular.

Indeed,

right up until the nineteenth century, oral (szóbeli) petitioning was consid-

ered normal in respect of minor pleas brought before county courts.

In view of the importance attaching to the written record, it is,

however, implausible that most petitions brought before the central courts

of the realm were delivered orally. Surprisingly, an oblique clue to the

commencement of an action is given by Werbőczy. In his discussion of

18 These were most commonly entered on the dorse of charters issued by the court. See

Dl 63239, Dl 20424–5 and, most notably, Dl 10008, fol 18r-v. Discussed by Imre

Hajnik, A magyar birósági szervezet és perjog az Árpad- és a vegyes-házi királyok

alatt, Budapest, 1899, pp. 227–8.

19 Hungarian National Archive, Section O (hereafter, MOLO), Birósági Levéltár, 3,

Mandala Judiciaria, Bundle 1, file for 1652.

20 Discussed at length in the invaluable manual of Ignácz Zsoldos, A szolgabirói hivatal.

Törvénykezési resz, 2

edition, Papa, 1844, esp. p. 44.

56 Hungarian Procedural Law and Part Two of the Tripartitum

how suits might fail, Werbőczy drew attention to the importance of

framing letters of summons accurately. The examples which he provides,

however, are not framed in the fashion of a letter of summons at all, but

instead in the form of a petition: for example, that the plaintiff s adversary

'sent out and forth X and Y, his men, to this place or village of mine and

he did and caused there this and that damage to my peasants'; or that, at

the adversary's behest, 'X and Y, his servants and peasants, having found

or come across such and such a servant of mine in such and such a place

beat him sorely and severely' (II. 82).

It would seem that what Werbőczy is describing here is not a summons

at all but instead a libellus or Klageschrift.

These were clearly being

used in Hungarian ecclesiastical courts by no later than the fifteenth

century.

In respect of secular suits, however, they only survive, in any

significant quantity from the seventeenth century. Nevertheless, the

earliest extant Hungarian case-file, dating from 1588, refers unmistake-

ably to information, now lost, which had been previously entered in

papiro in modum libelli.

In later Hungarian practice, the libellus was

indeed a 'little book', being a folio folded lengthways, on the first side of

which was written the names of the plaintiff and defendant, the charge,

the circumstances of the dispute, as well as any relevant dates and places:

in short, all those matters which Werbőczy urged should be most care-

fully entered on the 'summons'. We will, moreover, occasionally find the

libellus appearing in the text of the Tripartitum under quite different

names: most notably as the actio, declaratio actionis, series actionis or

acquisitio (II. 26 [pr]; II. 82 [1] & [4]), although these terms are not

consistently applied.

Nevertheless, the question must arise: why should Werbőczy conflate

the petition with the summons? The answer must surely be that the peti-

tion once it had been received, read and approved by the protonotaries of

the curia, was recast in the fashion of a letter of summons.

Possibly, as

in the eighteenth century, agents working on behalf of the plaintiff were

responsible for this recasting, with officials of the court simply giving

approval to the draft. We may guess, however, that, as in later centuries,

the libellus was at this point filed and served no further legal purpose. It

21 Generally, on this subject, see Willibald M. Plöchl, Geschichte des Kirchenrechts,

edition, 5 vols, Vienna and Munich, 1960–9, 2, pp. 355–6.

22 M.G. Kovachich, Formulae Solennes Styli, Pest, 1799, pp. 404–6.

23 MOLO, Birósági Levéltár, 1, Processus Octavales, Bundle 4, no 183.

24 The point is also made by Alajos Degre in respect of the Quadripartitum. See

Degre, A Négyeskönyv perjogi anyaga, Budapest, 1935, p. 119.

25 See thus Hajnik, A magyar birósági szervezet és per jog, p. 413.

Martyn Rady

was certainly not passed on to the defendant. Instead, the defendant

responded to the information and charges which were communicated to

him in the letter of summons. Accordingly, when the suit eventually came

to court, the charges and circumstances laid in the letter of summons

provided the substance of the claim. They could not be emended or added

to without the case collapsing. Additionally, the summons determined,

according to its date of issue, the relative position of the case on the court

list. This list was, however, subject to change as more pressing cases

might be moved to the top.

The importance attaching to the summons explains Werbőczy's

insistent advice that it must be drawn up carefully. If composed ambigu-

ously, then it could all too easily result in the action being lost. Indeed, in

order to ensure that the right vocabulary and information was included,

one mid-sixteenth century Transylvanian formulary included for the

benefit of clerks no less than 34 different versions of a summons:

summons by reason of the non-fulfilment of an obligation, summons on

account of the kidnapping of a nobleman, summons for beating a royal

bailiff, and so on.

Moreover, the plaintiff had to take care that the

defendant named was legally capable, for a summons addressed to a dead

man or minor misjoined the action and automatically rendered it void.

The letter of summons did more, however, than just serve to give notice to

the defendant that a suit had being brought against him. It also determined

the speed with which the case would be heard for it laid down when the

matter in hand might be expected to come to court. Cases involving

violence or where an urgent solution was thought expedient were essen-

tially hurried through the courts, to be commenced within a matter of

weeks.

Other litigation proceeded at a more leisurely pace and it might,

indeed, take several years before a less urgent case was heard at one of the

standard octave sessions of the courts.

26 Degré, A Negyeskönyv perjogi anyaga, pp. 134–6. See also II. 3 on the priority which

should be given to retrials.

27 Anna Pécsy, 'Az erdélyi fejedelmi kancellária elso formulariumos kézirata',

Emlékkönyv Szentpétery Imre, Budapest, 1938, pp. 385–95.

28 Thus matters concerning debt and pledge, the rights of widows and daughters, division

of property among heirs and retrials, even if opened by an evocatio simplex were

concluded brevi termino (II. 18 [3]).

29 Several years or four octave terms — by the early sixteenth century, the principal

courts of the realm only operated two octave courts annually. Each octave term lasted

approximately fifty to seventy days. See Hajnik, A magyar birósági szervezet és

perjog, p. 255.

58 Hungarian Procedural Law and Part Two of the Tripartitum

By the second half of the fifteenth century there were two principal

types of summons employed in Hungary: the evocatio simplex and the

insinuatio. The evocatio simplex was usually delivered in respect of prop-

erty actions where the ownership of the estate or the lie of its boundaries

was contested (II. 18 [4]). Normally, three summonses, each setting a

time to appear in court, were issued, the last of which involved the

summons being read aloud at three markets. For every occasion on which

the defendant failed to attend court he would be fined and, eventually, the

case would be heard in his absence. After 1486, the 'proclamation at three

markets' was replaced by the insinuatio ('terminal summons'), which

formally notified the defendant in writing that the case would proceed

irrespective of his own attendance (II. 18 [7]). Cases introduced by the

evocatio simplex were usually 'protracted' and several years might elapse

before they were concluded. They were invariably heard at the standard

octave sessions of the curia courts. Plainly, their resolution was not

considered pressing.

In cases where violence was involved or where a speedy resolution of

property claims was thought appropriate, an insinuatio might be issued on

the first occasion of summons. This would usually be combined with the

setting of a date for a hearing which was only a fortnight or month distant:

the so-called evocatio brevis or sine procrastione. Indeed, Werbőczy and,

subsequently, Kitonich, understand the insinuatio automatically to involve

a brevis date (II. 18 [3]).

The use of the brevis necessitated the curia

courts sitting in virtually permanent session, i.e. outside the standard

octave terms. Almost certainly, the speed with which the brevis forced

actions to court explains why litigants should often allege minor acts of

violence — the slaughter of a sheep or the theft of a beehive — in their

plaint. For a claim that violence had been done had the automatic conse-

quence of hurrying the matter to trial. By the same token, those

summoned at short notice were often obliged to attend court unprepared

and at great personal inconvenience. Indeed, they might not receive the

summons until it was too late. Unsurprisingly, therefore, several attempts

were made to restrict the use of the brevis. Clearly though, its benefits

were thought to outweigh its disadvantages and it continued in practice to

be widely used.

30 Kitonich, ii. 3 (1619 edition, p. 40). For full reference, see back, p. 5, note 11.

31 1464: 4; 1486: 7. See also Laws of the Medieval Kingdom of Hungary 14.58–1490

(Decreta Regni Mediaevalis Hungariae, vol 3), eds János M. Bak, Leslie S.

Domonkos and Paul B. Harvey, Jr, Los Angeles, 1996, pp. 91, 107, 133.

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A further and quite different procedure for summoning lay in regard to

the 'personal summons, notice and prohibition' (personali citatione,

admonitione, et prohibitione). This dispensed with all legal formalities

and was principally intended to be used when both parties were able by

prior arrangement to come to court and have their case heard on the spot.

It appears principally to have been used in cases of debt (II. 20).

5. The Summons and Out-of-Court Procedures

The letter of summons might not be delivered personally by the plaintiff

to his adversary. Instead, the plaintiff was obliged to convey it to the place

of authentication, chapter or convent, named in the letter (II. 21). The

chapter or convent appointed one of the handful of royal bailiffs, usually

noblemen of the relevant county, specified in the letter of summons as

well as one of its own number who was charged with overseeing the

bailiff and completing the relevant paperwork. It was the bailiffs respon-

sibility to have the summons delivered properly to the defendant — a

procedure which Werbőczy discusses in detail since failure to present the

summons properly carried the automatic consequence of halting the suit

(II. 19). The letter of summons might be read by the defendant, but he

could not retain it. He was, however, permitted to make a copy.

In the majority of cases, the letter of summons also instructed the

bailiff and cleric to perform additional, 'out-of-court' tasks which were

related to the business of the summons.

The two most common instruc-

tions of this type were to hold an inquest or to deliver notice. The first of

these (litterae inquisitoriae) ordered the bailiff and cleric to hold an

inquest which would determine whether the plaint had any substance and

thus whether a summons should be delivered at all. This type of investiga-

tion was most usually employed in cases of violent trespass. The inqui-

sitio simplex took evidence of neighbours, abutters and local noblemen. If

the inquest found the plaint justified, then it followed this up by commu-

nicating the relevant summonses and specifying a date for the hearing.

Should it establish that other parties were involved in the dispute who had

not been named in the original letter, the bailiff and cleric were empow-

ered to issue out additional summonses. Upon completing the inquest, the

32 See also Kitonich, ii. 4 (1619 edition, p. 44). The Quadripartilum regards this procedure

as being, however, discontinued: Quadripartitum, pp. 261–3 (111. 15).

33 Degré, A Négyeskönyv perjogi anyaga, pp. 124–5.

34 Hajnik, A magyar birósági szervezet és perjog, p. 194.

60 Hungarian Procedural Law and Part Two of the Tripartitum

cleric who had performed the inquest reported back in writing to the court

which had delivered the mandate, commenting briefly on the outcome of

the inquiry and stating whom had been summoned (cum nominibus

evocatorum).

The report of the inquest would constitute evidence

which might be relied upon in court. On account, however, of the cursory

nature of the investigation, often two, three or even more inquests might

be separately sent to take evidence and command attendance at court.

Letters of notice (litterae ammonitoriae) served largely as a catch-all for

almost all other business — as a form of notice and warning in respect of

impending legal business or as an injunction.

The plaintiff would explain in his

libellus that he wished to engage in a transaction or to prevent parties infringing

his legal rights. His libellus was accordingly recast in the form of litterae which

mandated a bailiff and cleric to notify all parties affected. These most typically

included neighbours and relatives of the plaintiff who considered themselves to

have concurrent rights in respect of the business under transaction. It was the task

of the bailiff and cleric to hunt these out. If they indeed objected to the

transaction, then they were subsequently summoned to court to explain their

position. Likewise, those served with an injunction, most typically to vacate a

property or to hand over deeds in their possession, but who objected that this was

unjust were also summoned to court to explain their position (II. 24).

Similar

procedures accompanied institutions to properties and review of boundaries. If the

institution or boundaries were contested, then summonses were duly issued by the

bailiff and cleric. Summonses involving institutions and boundaries were

invariably simple evocationes rather than insinuationes as the matters arising were

considered insufficiently pressing to justify an early hearing.

These out-of-court procedures allowed exceptional discretionary powers

to the bailiff and cleric. Not only were they responsible for investigating the facts

of the case but they were also charged with establishing the identity of all parties

who might have an interest in any subsequent

35 Relationes of this type are invariably formulaic. They record the charges laid in the mandate of

instruction, report that the bailiff and cleric took evidence palam et occulte, and that they omnia

premissa et quevis premissorum singula sic et suo modo facta et patrata fuisse rescivissent sicuti et

quemadmodum eidem vestre serenitati [id est recte, iudici] expositum extitissent.

36 Hajnik, A magyar birósági szervezet és perjog, pp. 291–2.

37 For the ammonitioladmonitio as a notitia, see Commissio Systematica. Observationes in

Tripartitum, fol 27v.

38 The instruction to hand over deeds was usually given in litterae ammonitoriae et exhibitorae.

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transaction or litigation. Moreover, they were expected to decide whom to

summon and to ensure that the summons so issued was both accurately

phrased, correctly delivered and returned in time to them. In view of these

functions and responsibilities, it is not surprising that Werbőczy should

consider the bailiff to be tanquam iudex (II. 22 [2]). By the same token, it

was perhaps inevitable that bailiffs and their supervising clerics should on

occasions be violently attacked by aggrieved parties and even murdered.

6. The Trial

Let us imagine that the defendant, having received the summons, actually

attended the court. (We say 'actually' because all too frequently the

summons was ignored or not received in time). In advance of the case

opening, there would be much time spent waiting for the other party actu-

ally to attend. In the event of an evocatio simplex, the summons specified

only the octave term at which the case would be heard. It was thus

entirely possible to spend several weeks or even months waiting for one's

opponent or his lawyer actually to turn up.

Quite how court listings

operated under such uncertainties must remain a mystery.

With both parties eventually in attendance, the text of the summons

was entered into the court record and the case formally levata or 'taken

up'. At this point, however, proceedings were frequently adjourned to

permit the defendant to recover documents relevant to his case, to have

copies made of those in the plaintiffs possession (the so-called petitio

parum), or to summon warrantors. It was often only much later that the

case was formally resumed and the proclamatio which called the parties

to order read out.

The proceedings which followed were conventionally

divided into two parts. The first of these, the pars exceptiva, usually

involved the defendant's lawyer delivering reasons as to why the action

should be abandoned.

Doubtless many of these were, as Werbőczy

39 József Vagner, Adalékok a nyitrai Székes-káptalan történetéhez, Nyitra, 1896, pp. 120–

3 (recording the murder of a canon in 1544).

40 Dl 66970; Dl 124705; Dl 172171; Dl 84907 (recording a wait of no less than 70 days).

41 In the late seventeenth and eighteenth centuries, the delay between the levata and

proclamatio might amount to several or more years.

42 Exceptiones were later divided into two categories — dilatoriae which forced a delay

in proceedings, most typically to recover deeds, and peremptoriae which, if proven,

had the effect of collapsing the case. See Szegedi, Tyrocinium (Kassa 1764 edition), pp.

611–2 (ad II. 82).

62 Hungarian Procedural Law and Part Two of the Tripartitum

indicates, exceptiones frivolae (II. 83 [6]) and might include many tiresome claims all of which had to be

disproved by the plaintiff — for instance, that the plaintiff was a minor or not a nobleman, that his descent and

thus property-rights were uncertain, and so on. One fifteenth-century formulary suggests additional ruses which

good lawyers were expected to use — that the incorrect seal was impressed on the summons, that a scribe had

made a mistake, or even that the judge himself was suspectus.

On each of these points, the judge was expected

to rule, delivering decisiones interlocutoriae. During this part of the proceedings, other parties might enter the

action as co-plaintiffs (ingerentes), and be subject to the same barrage of exceptiones. Ingerentes of this type

were usually kinsmen of the plaintiff who had a concurrent interest in the property to which the plaintiff laid

claim (II. 84).

Once the case had moved beyond the phase of exceptiones, it entered the pars allegativa or litis contestatio.

At this point, the instruments of proof were submitted. In property cases, these usually involved the deeds

belonging to one or both parties. Invariably, the authenticity of the instruments became the object of scrutiny and

debate, and might involve the examination of deeds which were several centuries old — in one case a charter

issued by King Coloman at the beginning of the twelfth century, which was almost certainly a fake.

Requests

that the originals be submitted and not just transcripts were a frequent cause of delay. During this part of the

trial, evidence and arguments would be exchanged. In the early eighteenth century, the trial record of this part of

the proceedings might run to several hundred pages.

In cases of violent assault or seizure, however, documentary evidence often played only a secondary role and

much depended instead on the evidence of witnesses and on the taking of oaths. Under these circumstances the

report of any previous inquisitio simplex was important but was often judged to need corroboration. Moreover,

there might be matters which had arisen in the course of the trial which needed clarification. With the consent of

the parties, the case would then be adjourned and a 'common inquest' (inquisitio communis) held under the

supervision of a bailiff and cleric in the locality where the alleged crime had taken place. The inquest took

evidence of witnesses under oath, recording their individual testimonies in detail together with their names and

status. Normally, the inquest was held at the county seat and the ispán (county sheriff) and his deputy made

responsible for enforcing attendance. As an

43 Kovachich, Formulae Solennes Styli, pp. 408–9.

44 D/3852.

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alternative, an inquest might be appointed to hold a view (oculata

revisio), the primary purpose of which was to ascertain who was in phys-

ical occupation of a contested estate. Under these circumstances, the

inquest was held near the site of the property (II. 41). Once the record of

the inquest was submitted to the court, it was possible there to challenge

its findings, particularly by disputing the status of witnesses and thus the

value of their evidence. If the challenge was upheld, then — depending on

whether the challenge had been made by the defendant or plaintiff —

either a fine was payable or the case lost (II. 36). In subsequent centuries,

challenges of this type might prompt the inquest to be reheard.

With the inquest complete, the litigants were expected to take oaths of

their own and to enlist a sufficient number of local noblemen in support of

their claim. The number of oath-helpers varied according to the quality of

the evidence previously submitted. If the evidence favoured one party

more than another, then he was expected to deliver a decisory oath, being

supported by forty-nine noblemen. If, however, the common inquest was

inconclusive, then the evidence of the earlier simplex inquest was brought.

This by its very nature favoured the plaintiff, for had it not then the case

could hardly have come to court in the first place. The defendant, however,

was entitled to summon oath-helpers of his own in order to overturn the

findings of a simplex inquest. Their number depended on how many

inquests had been held. It is clear from Werbőczy's account, moreover,

that on occasions oath-helping took place independently of a common

inquest. This would appear to be the case when one of the parties refused

to give his consent to the holding of a common inquest (II. 32). Clearly, the

business of gathering oath-helpers and have them attend the church where

this solemn business was conducted might occupy several or more days.

The record of the common inquest and of the oaths submitted, once

they had been delivered to the court, usually provided ample evidence of

guilt or otherwise. It should, however, be noted that many of the internal

workings of the court at the time of trial remain obscure. The litterae judi-

ciales and sententionales composed by the court at the close of the case

seldom give details of the exceptiones and allegationes and the terms of

their rebuttal. Instead they simply list the instruments brought to the

court's attention and the outcome of the inquest. Moreover, because

proceedings in both the pars exceptiva and litis contestatio were

conducted orally, they are neglected in the formularies.

45 MOLO, Birósági Levéltár, 18, Processus Tabulares, Bundle 4, no 19 (dated 1732).

46 A nagykárolyi gróf Károlyi-család oklevéltár, ed. (Kálmán Géresi, 5 vols, Budapest,

1882–97, (hereafter Károlyi), vol 3, pp. 57, 62.

64 Hungarian Procedural Law and Part Two of the Tripartitum

7. The Sentence

In many cases, the action never reached the stage of the judge delivering a

final sentence. Instead, the parties, having asked for an adjournment, put

together a compromise arrangement which the court formally recorded.

Although frequently described as amicabilis, compromises of this sort

invariably included a vinculum, usually in the form of a money payment

that had to be discharged by whichever party failed to abide by the terms of

the compromise. Alternatively, the parties might consent to the

appointment of arbitrators. As we will argue, a negotiated settlement was

indeed the preferred outcome in disputes and, in many cases the aim of the

sentence itself.

If the suit indeed reached the stage of a final sentence, this would

be pronounced by the judge. The judge was expected to base his decision

on the exchanges and arguments of the parties and with reference to the

documents and other evidence produced during the course of the trial (II. 75

[8]). In the case of the principal curia courts, the judge would take advice of

those other judges who were in attendance and of the growing number of

noble assessors whose presence in the courtroom was demanded by the

diet.

The judge's decision was subsequently written up in the form of a

privilege with hanging seal. The privilege recorded the names of the parties,

the nature of the dispute, the various sittings of the court, the principal

elements of proof, and the judge's decision. In cases where violence or

wrongful seizure had been proven, and this was frequently the case in

disputes over property, very severe sentences were imposed. At the very

least, the penalty would be a fine of 200 florins, by payment of which the

defendant 'redeemed his head', combined with the confiscation of his entire

estate. More usually, however, full sentence of execution was laid and the

maldoer's property ordered to be seized. Estates so seized were then either

divided between the judge and plaintiff, or handed over to the crown.

The

guilty party was then delivered to the plaintiff who was responsible for

carrying out sentence of death.

47 The principal courts of the realm sat as collegiate bodies. Indeed, in respect of personnel,

there appears to have existed in the curia but a single tabula, the presidency of which determined

the court's formal designation. 48 Werbőczy alleges the former which may be demonstrated by

Oklevéltdr a Tomaj nemzetségbeli losonczi Bánffy család történetéhez, eds Elemér Varjú and

Béla lványi, vol 2, Budapest, 1928, p. 376; Dl 14392–3. See, however, Károlyi, vol 3, p. 67

where the property of the defendant passed to the royal fisc, secundum antiquam et approbatam

consuetudinem atque legem (1510).

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The capital penalty was, however, never enforced. For if the plaintiff

actually killed his adversary, the estate of the defendant was saved and

passed on to his heirs. There was clearly, therefore, a strong disincentive to

carrying out the sentence. Instead, and Werbőczy describes this alternative

procedure in detail, the plaintiff was recommended to take hold of the

defendant and bring him before the judge. The judge might sequester the

nobleman for up to three days, and within this time the defendant was

expected to agree to a solution. Thereafter, he might be detained by the

plaintiff until agreement was reached, with sentence of death and full

confiscation of his property still hanging over him. A final remedy lay with

the king. Quite frequently the king commuted the death sentence and order of

confiscation on condition that the defendant come to terms with the plaintiff

and reach an amicable arrangement. Should it come to the worst, and the

estate of the defendant be confiscated, then his heirs had the right to redeem

it at an artificially low price.

Similar procedures aimed at forcing a compromise attended the

payment of fines imposed for lesser acts of violence. If the defendant was

unable or unwilling to pay, he was first taken before the judge and then

held in the home of the plaintiff until his relatives could produce the

necessary cash. During this period, however, the nobleman was not to be

harmed but had, indeed, to be treated like anyone else in the plaintiffs

household (II. 68).

It might well be, however, that the plaintiff simply

seized the property of the defendant holding it in pledge until the money

was paid, or that a compromise was worked out whereby the defendant

paid only a lesser sum.

8. Legal Remedies

Hungarian procedural law allowed a variety of legal remedies, all of which

had the consequence of prolonging the legal process. The number of

remedies available in Hungarian law was a consequence of three factors. In

the first place, Hungarian procedural law rested to a large degree on practices

followed in the ecclesiastical courts where legal delays were seen as 'an

essential device to protect all concerned'.

Secondly, there was the sheer

problem of enforcement which meant that

49 Lower courts might, however, choose to keep the nobleman in gaol. See Dl 26948.

50 Dl 107151;Dl 67061.

51 Jane E. Sayers, Papal Judges Delegate in the Province of Canterbury, 1198–1254,

London, 1971, p. 99.

66 Hungarian Procedural Law and Part Two of the Tripartitum

methods of obstruction became institutionalized and accommodated

within procedural law. This was particularly the case, as we will see, in

respect of the legal device known as the repulsio. Finally, in Hungarian

law, procedures for appeal were underdeveloped and still depended at the

time of the Tripartitum upon a mandate being obtained from the king.

As a consequence, additional remedies had to be built into procedure in

the court of the first instance, particularly in relation to having the case

reheard at the same venue. By the mid-sixteenth century, the capacity of

Hungarian law to accommodate the retrial or novum was considered one

of its most signal marks.

The principal instrument used to force a retrial was the prohibitio. The

term prohibitio was, however, a broad one and covered a whole range of

legal devices.

By the early seventeenth century, the prohibitio had been

broken down into the separate remedies of the prohibitio proper, the

prohibita and the inhibition In respect of rehearings, the first and most

obvious use of the prohibitio lay in relation to the summons. Defendants

frequently failed to receive these in good time or else were delayed in

their journey to the court. In their absence, they might be found guilty of

contumacy and the case go against them. Under these circumstances, the

unlucky defendant was allowed to protest the litterae judiciales issued by

the judge and, if his prohibitio (Jnhibitio) was accepted by the court, the

case would be retried with him in attendance. A prohibitio (prohibita)

might additionally be made after a full trial by either party if they disa-

greed with the judge's verdict. The party making the prohibitio was

expected to provide a reason for this either in the court or in the inn, and

52 Werbőczy deals with appeals in Part Three of the Tripartitum (III. 6–7, 10) only in the

context of the movement of cases from cities and counties to the central courts. The

extant records of appeals moved to the curia in the seventeenth and eighteenth centuries

reflect the continuing underdevelopment of appeal procedures. The surviving case notes

are thin and usually record only the decisio. The principal appeal court of the realm, the

Septemviralis, only started to record its deliberations and sentences in 1791. The appeal

in Old Hungarian law constituted a revisio causae and not (as partly today) a cassation.

53 Quadripartitum, p. iv.

54 The prohibitio might also be used to launch a legal action — see II. 20 [4].

55 Kitonich, chapter 5 (1619 edition, pp. 103–27). By the early 17

century, the prohibitio

was used exclusively to launch an action. The inhibitio was used to quash litterae

judiciales issued on grounds of non-attendance and the prohibita to overturn a verdict

delivered after a full trial. Evidently, though, the terms lacked consistent application

and were even a bone of contention among lawyers. See Kitonich, chapter 8 (1619

edition, p. 200). Transylvanian terminology differed: see György Bónis, Erdélyi perjogi

emlékek, Kolozsvár, 1942, p. xx.

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to do so promptly. If a retrial was refused, then the aggrieved party might

personally appeal to the king and he enforce a novum.

The aggrieved

party was, however, expected in the mean time to comply with the initial

verdict, even to the extent of vacating a property (II. 77).

We know that few cases proceeding before the courts were actually

handled by the judges ordinary of the realm. The palatine, judge royal

(országbiró) and tavernicus (judge of the towns) were for the most part

illiterate thugs who were appointed to office on account of their martial

qualities and loyalty to the ruler. Although the extant judicial records hardly

ever betray the fact, cases were handled almost in their entirety by

protonotaries of the court — the so-called itélőmesterek or 'masters of

judging'.

In similar fashion, we may suspect that the vast majority of cases

proceeding before the courts were managed exclusively by lawyers and that

the parties were only seldom present in person.

It was, however, the case

that his own attendance benefited the litigant, for it permitted use of a device

borrowed from ecclesiastical law known as the revocatio procuratorum.

The revocatio worked in two ways. It might be used either to countermand a

statement made by the lawyer, even to the extent of revoking an entire legal

argument if this appeared to be going against the litigant's interest.

Secondly, in cases which were brought brevi termino to the court, it was

possible to dismiss the lawyer after the delivery of the verdict and thus

reopen the case anew. Depending upon the stage which the action had

reached, revocatio carried either no penalty at all, a six florin fine or a two-

hundred florin fine. The last of these was reserved for cases of revocatio

which involved reopening the case well after it had been concluded, or else

forced the abandonment of an inquisitio communis, oath-taking or search

for documents. As an alternative, the plaintiff, if he felt the case to be going

badly, could simply demand that it be abandoned and recommence the

action at a later date (II. 82 [22]).

The execution of judgements also provided an opportunity for further

remedy. Where the defendant in an action was proved in court to be holding

a property unlawfully, the procedure for enforcement always involved a

(re)statutio or (re-) institution. A cleric and bailiff were instructed by the

court to visit the property and to see that the new owner took up his rightful

possession. The cleric and bailiff might also record protests to the institution

made by those who considered that they had a

56 M.G. Kovachich, Formulae Solennes Styli, Pest, 1799, pp. 175–6; see also, pp.

163,360.

57 The term first arises in the sixteenth century.

58 This is implied in II. 20 [1]. See also above, note 17.

68 Hungarian Procedural Law and Part Two of the Tripartitum

superior claim to the property. The defendant was usually forbidden from

making a protest at his own eviction and thus from launching an action

against the new owner. Instead, though, he had the option of simply

refusing to leave. In this case, the defendant had to follow a quite specific

procedure, brandishing a drawn sword before the cleric and bailiff and

refusing them leave to enter the property. From Werbőczy's own account,

it is clear that the repulsio by sword was intended to proceduralize more

casual acts of violence aimed at impeding the legal process. The act of

repulsio had the consequence of forcing the plaintiff once again to

summon the defendant to court and of reopening the case from the begin-

ning. According to Werbőczy and to several royal decrees, the repulsio

could only be used once. If it was repeated, the defendant incurred the

charge of nota infidelitatis or treason, and was liable to lose all his estate

(II. 73–4). It is plain, however, that in the succeeding centuries defendants

often performed the repulsio on several occasions, forcing — apparently

without penalty — the case to be reopened.

Of course, it might well be that, with all remedies exhausted, the

defendant still refused to leave the property. In this case, he had to be

physically ejected by a posse of the local nobility or by military force.

Even so, he might subsequently descend upon the property and reoccupy

it. For this he would, according to the decretum of 1507, be summoned to

court on charges of treason.

Over the course of the succeeding centuries,

however, the reoccupatio was increasingly proceduralized. Although for

its performance a fine of 200 florins was payable as well as compensation

for any damage done, the reoccupatio had, nevertheless, the consequence

of forcing a retrial.

The examples of the repulsio and reoccupatio indicate the practical

difficulties accompanying enforcement which provided a spur to negoti-

ating a compromise rather than imposing a court judgement. Werbőczy

knew this only too well from personal experience. In 1511, Werbőczy had

been granted by King Wladislas II lands in Bihar county which had previ-

ously belonged to Francis Jako, but which had been confiscated by royal

59 Endre Varga, 'Polgari peres eljarasa a kiralyi curián 1724 – 1848/49',

Lévéltari Közlemények, 1968, pp. 269–309 (pp. 288–300).

60 1507 (Wladislas II: Decretum VII): 2.

61 Varga, 'Polgari peres eljarasa', pp. 303–4. The 200 florin penalty remained

despite inflation — MOLO, Birósági Levéltár, 8, Protocolla Tabulae

Septemviralis, vol 10, fol 5 (dated 1800). Also by this time exemptions might

be made for reoccupationes which were considered as done legali ratione —

ibid., 116, Protocollum Inclytae Tabulae Districtualis Judiciariae

Transdanubianae, vol 15, fol 6 (1799).

Martyn Rady

order on account of Francis's bigamous marriage. Werbőczy was never

able, however, to take up secure occupation of Francis's properties, for

his entry to the estate was consistently obstructed by Francis's kinsmen,

who were members of the powerful Thordai and Bajoni families of Bihar

county. After six years, during the course of which Francis died,

Werbőczy was obliged to strike a deal. He resigned his immediate rights

to Francis's estate, accepting instead only the right of reversion in the

event of the (improbable) expiry of the Bajoni and Thordai lines. In

return, he asked simply that the kinsmen accept that Francis had

contracted an illegal marriage and, thus, by implication, that they

accepted the terms of the estate's original confiscation.

Although

couched about in the language of the law, the arrangement which

Werbőczy made with Francis's relatives spells out only too clearly the

limits of the law and the limits of enforceability. Unable to make good his

rights to the estate, Werbőczy was obliged to conclude a much inferior

arrangement.

9. Conclusion

The extent of legal remedies available had the consequence of prolonging

cases, sometimes over many decades. We know of one case from the later

fifteenth century that dragged on for more than sixty years and Werbőczy

himself remarked that some suits might be protracted for 'more than a

human lifetime' (II. 71 [5]).

By the eighteenth century, individual cases

might take years to come to court and decades finally to resolve. Change

was slow in coming. The royal commission established in 1827 to reform

the law noted that procedures in Hungary 'were easily the longest in

Europe' and that 'the entire procedural order was corrupt'.

Responsi-

bility for this state of affairs was variously apportioned. The royal govern-

ment accused the nobility of hiding behind its entrenched privileges and

of resisting initiatives for reform. The nobility for its part blamed the

government for meddling and for confusing the established order. Both

sides, however, were in agreement that the lawyers served justice ill by

62 Károlyi, iii, pp. 78–82, 91, 105–9; Dezsö Csánki, Magyarország történelmi földrajza a

Hunyadiak korában, i, Budapest, 1890, pp. 629, 641.

63 Kovachich, Formulae Solennes, p. 158. And yet Werbőczy notes with disapproval that

a whole year may be spent in litigation (II. 76 [1]). The present author is not convinced

that litigation in the late medieval period was especially slow and will seek to

demonstrate this in a separate article.

64 Varga, 'Polgári peres eljárása', p. 308.

70 Hungarian Procedural Law and Part Two of the Tripartitum

deliberately prolonging cases so that they might pocket more fees. In this

respect, the Josephinist Izdenczy proposed that the best way to speed up

justice was simply to abolish the class of lawyers.

These criticisms, however, largely miss the point. As far as Werbőczy

was concerned, the problem was not that cases might take a long time to

reach any conclusion but that the verdicts reached should be fair and just.

Without there being a sufficient raft of remedies then it was all too easy

for just cases to fail and for guilty parties to prosper, even at the expense

of their own salvation. In Werbőczy's words, justice denied 'is the two-

edged sword which pierces the hearts of orphans and widows and of other

poor people. This is the grief which robs the spirits of the oppressed. This

is the snare which drags many into the pit of eternal damnation. Many are

the reasons for suits failing unjustly which, as the tinderbox of sin, are

always to be avoided' (11.83 [8]).

65 Dénes Jánossy, 'Reformtörekvések a polgári peres eljárás terán a xviii. században'

Századok, 77, 1943, pp. 41–77 (p. 75).

Pergošić’s Translation of the Tripartitum into Slavonian

Reliable information on Ivan Pergošić and on the printing house at

Nedelišće is scarce. For the most part, it comes 'second hand' from

sources which have long since vanished. What survives in respect of the

extant material has been 'recycled' by historians for decades and new

documentary evidence is difficult to uncover. Accordingly, one has

frequently to make do with assumptions and inferences. The aims of this

essay are: to outline the circumstances in which there first appeared the

Slavonian translation of the Tripartitum, or, as Pergošić called it, the

Decretum; to review its possible purpose; and to establish the identity of

who it was that inspired its translation.

In the course of what follows, we

will explore the principal hypotheses while presenting, albeit tentatively,

several explanations of our own.

***

With the death of Ivan Ungnad in 1564 the printing house in Urach near

Tubingen came to an end. Its demise brought to an end the earliest phase

in the publication of works in the Slavonic languages. By this time, the

1 Pergošić uses the term szlouienski in respect of the kajkavian spoken in Slavonia

(Windischland) and distinguishes it from horuatzki, that is chakavian. In this

context, I will use the term 'Slavonian' as distinct from 'Croatian'.

2 The exact title of the translation is 'DECRETVM KOTEROGAIE VERBEWCZI

1STVAN DIACHKI POPISZAL A POTERdilghaie Laβlou katerie za

Mathiassem Kral bil zeuβe Ghoβpode i Plemenitih hotieniem koteri pod

Wugherβke Corune ladanie βlisse. OD IVANVSSA PERGOSSIcha na

Szlouienβki iezik obernien. ... STAMPAN V Nedelischu Leto nassegha

zuelichenia 1574'. So far, two critical editions of the Decretum have appeared:

Karlo Kadlec, Stefana Verbecija Tripartitum (Srpska kraljevska akademija.

Zbornik za istoriju, jezik i književnost srpskog naroda. Knjiga 5), Belgrade,

1909, and a more recent edition by Zvonimir Bartolić, which was printed in

Čakovec in 2003 by Matica Hrvatska.

72 Pergošić 's Translation of the Tripartitum into Slavonian

printing house in Ljubljana was on account of its Protestant

sympathies under constant surveillance by the Catholic authorities.

The printing houses in Senj, Zagreb and Rijeka had already been

banned during the earliest decades of the sixteenth century, namely

in 1508, 1527 and 1531. In particular, the Catholic authorities feared

that the use of Glagolitic letters, of Old Church Slavonic or, even

worse, of the vernacular and printing of Protestant works in

Glagolitic letters would assist the spread of the Reformation.

Croatian historians have pointed out, with the end of the Ungnad

printing house, it was only the travelling presses of Rudolf Hofhalter

in Nedelišće and Johannes Manlius in Ljubljana and Varaždin

which, despite their Protestant inclinations, prevented the complete

disappearance of printing and literary activity in the Croatian-

Slavonian kingdom. Moreover, this activity was for decades

threatened by the unfavourable military and political situation that

transformed what was left of Hungarian-Croatian Kingdom into the

Military Border.

In respect of these printing houses and the authors whose work

they attracted, the achievements of several writers of the 'Northern' or

'Varaždin Literary Circle' have been examined by a number of linguists

and historians of literature. The Varaždin circle consisted of a group of

educated men and office-holders living in Varaždin, including, for

instance, Antun Vramec, Blaž Škrinjarić, Blaž Antolovic, Ivan Pergošić,

Mihajlo Bučić (about whom otherwise little is known), and so on. Some

of these were accused of flirting with Protestantism.

Research on the

3 Krešimir Georgijević, Hrvatska književnost od XVI. do XVII. stoljeća u sjevernoj Hrvatskoj

i Bosni, Zagreb, 1969, pp. 12–36; Josip Bratulić, 'Glagoljaštvo i protestantizam', in Rad

Zavoda za slavensku filolologiju, 27, 1992, pp. 231–235. See also numerous works on Stjepan

Konzul Istranin and Antun Dalmatin (both glagolitic priests/popovi glagoljaši and

Protestants).

4 A map of the military border in the second half of the sixteenth century is given in Drago

Roksandić and Nataša Štefanec (eds), Constructing Border Societies on the Triplex Confinium,

Budapest, 2000, p. 92.

5 Bučić's parents were Catholic, and two of his cousins were priests in Zagreb. To begin with,

around 1565, he held a parish in Stenjevec, near Zagreb, and from 1567 to 1571 he was parish priest

in Belica, in MeĎimurje. See Vjekoslav Klaić, Povijest Hrvata, 5, Zagreb, 1973 (reprint), p. 666.

Bučić probably published three Calvinist books in Nedelišće, none of which have survived. These

were: Contra praesentiam corporis et sangvinis Christi in Sacramento Eucharistiae,

Nedelišće , 1573; Kerstjanski nauk (Catechismus), Nedelišće, 1573; Novi Zakon, Nedelišće,

1573, which was dedicated to Maximilian 11; Károly Szabó (ed.), Régi Magyar Könyvtár, 2,

Budapest, 1885, nos 133–135. Szabó here relies on Kukuljević, Agramer Zeitung (1881) as his

source. Bučić was convicted of heresy and excommunicated in March 1574 by the synod of

Zagreb diocese, which was convened and presided over by Juraj Draškovič, bishop and ban.

Rumour has it that, after his excommunication,

Nataša Štefanec 73

Varaždin circle and its members remains to a large extent both incomplete

and not comprehensive.

The lack of information on this period is to a

large part due to the destruction of the fruits of these printing houses

during the Counter-Reformation.

Nedelišće, the small market town where the Tripartitum was printed,

was one of the main customs offices in the Hungarian-Croatian

kingdom, collecting the tricesima customs due (tridesetnica, Dreissigst,

harmincad). As such, it was also one of the most frequented places in the

Croatian-Slavonian kingdom. The town was situated in the MeĎimurje

(Muraköz) region, which belonged at that time to the Zrinski (Zrinyi)

family and lay midway between Varaždin and Lendava (Alsólendva).

The first printer to appear in Nedelišće was the well-known Protestant

printer, Rudolf Hofhalter.

It is still not yet clear when exactly and why

he came to these parts from Nagyvárad, whence he was expelled on 17

September, 1571, by order of the emperor.

What is

Bučić found shelter on the estate of Juraj Zrinski in MeĎimurje. According to Klaić,

Drašković even wrote a Constitutio against Calvinist doctrine and, more specifically,

against Bučić's teaching. During a synod in 1570 he ordered that in addition to the

Latin liturgy, there should every morning be a mass in the 'Croatian language'

{croatica lingua). See Klaić, Povijest Hrvata, 5, pp. 666–667.

6 See the works cited here by Zvonimir Bartolić, Gedeon Borsa, Franjo Bučar, Neven

Budak, Franjo Fancev, Krešimir Georgijević, Alojz Jembrih, Ivan Kostrenčić, Mijo

Mirković, Valentin Putanec, Károly Szabó.

7 Rudolf's father was a famous Viennese printer, Rafael Hofhalter, a Polish nobleman,

previously known as Skrzeutsky. He lived in Zurich and the Netherlands, where he

worked in various printing houses. Rudolf was born in Zurich. In 1555/56 father and

son moved to Vienna, where Rafael founded his own printing house. In 1562 they had

to flee Vienna on account of their religious beliefs. They settled in Debrecen and,

thereafter, in Nagyvárad (Oradea). In 1566/67 Rafael moved to Gyulafehervar (Alba

Iulia) after which all trace of him is lost. See Josef Benzing, Die Buchdrucker des 16.

und 17. Jahrhunderts im deutschen Sprachgebiet, Wiesbaden, 1963, pp. 455—456; Pál

Gyulás, 'Die Wiener Buchdrucker Rafael Hoffhalter und sein Sohn in Ungam',

Gutenberg Jahrbuch, 1930, pp. 198–204. Rudolf worked in Nagyvárad from 1567 until

1570. In September 1571 he left the Partium. According to Borsa, he came to Lendava

only in 1573. His activity between 1571 and 1573 and between the end of 1574 and

1577 is still not known. See Gedeon Borsa, 'Rudolphus Hoffhalters Typographie in der

Gegend von Mur und Drau (1573–1574)', in Vjesnik bibliotekara Hrvatske, Vols 1–2,

Zagreb, 1968, pp. 26–34 (p. 28).

8 Zvonimir Bartolić, 'Nedelišće — staro hrvatsko književno središte', in (ed.) Josip

Buturac, Nedelišće, Nedelišće, 1993, pp. 210–227. See also Bartolić, 'Hrvatski

književni i neknjiževni tekstovi na tlu MeĎimurja do 1918', in Hrvatski dijalekoloski

zbornik, 6, Zagreb, 1982, pp. 23–53; Bartolić, 'Hrvatska tiskara u Nedeišću u doba

Zrinskih', in Bartolić, Sjevernohrvatske teme, Čakovec, 1980, pp. 5–24;

74 Pergošić 's Translation of the Tripartitum into Slavonian

known, however, is that he was active in printing both in Bánffy's

Lendava and Zrinski's Nedelišće.

Miklos Bánffy was married to Ursula Zrinski, sister of Juraj Zrinski

(IV). At the time he was ispán (župan) of Zala County. Since their proper-

ties were adjacent, the Zrinski and Bánffy families often visited each

other.

Both families owned extensive properties in south-western

Hungary and Slavonia, and, being Protestant, both also welcomed

Hofhalter. In Lendava there was a strong Protestant community led by

Juraj Kulčar (György Kulcsár) which was supported by Miklos Bánffy.

During Hofhalter's stay in Lendava, Kulčar published three religious

books in Hungarian: the first in August 1573, the second two months

later, and the third in May 1574.

He dedicated two of these works to

Miklos Bánffy, and the other to the brothers Juraj, Nikola and Krsto

Zrinski. One may conclude from this third dedication that the Zrinski

family also encouraged and supported Kulčar.

Building on the recent work of Zvonimir Bartolić, we may make

several more educated guesses.

The earliest surviving book coming

from Hofhalter's workshop was published in Lendava. We have,

however, indirect evidence of at least three Calvinist works written by

Mihajlo Bučić which were printed by Hofhalter in Nedelišće in 1573.

This suggests that Hofhalter may have gone to Nedelišće first, at the invi-

tation of Juraj Zrinski. On the basis of a rather long and convoluted argu-

ment, Gedeon Borsa has sought to demonstrate that Hofhalter may have

printed two further books in Nedeli§ce in 1573 before departing for

Lendava later that year.

Since none of Bučić's works survive, Borsa's

speculation must, however, remain just that.

A few stray words written by Ivan Pergošić additionally suggest that it

was Juraj Zrinski who invited Hofhalter from Nagyvarad. In the preface

to his Slavonian translation of the Tripartitum, Pergošić writes, referring

9 For Juraj Zrinski's life, see Nataša Štefanec, Heretik njegova Veličanstva. Povijest o Jurju IV.

Zrinskom i njegovu rodu, 1549–1603, Zagreb, 2001, p. 316.

10 Hungarian National Archive (Budapest), Section P (Archive of Families, Corporations

and Institutions), 1314/ 53571–2.

11 Az halálra valo keszöletröl rövid tanossag, Lendava, 1573; Az ördögnec a penitencia

tarto bünössel való vetekedéseröl, Lendava, 1573; Postilla az az evangeliomoknac, mellieket

esztendö által a keresztyénec gyöleközetibe szoktac oluasni es hirdetni, Lendava, 1574.

See Borsa, 'Rudolphus Hoffhalters Typographic', p. 27; Bartolić, 'Nedelišće', p. 194.

12 Bartolić, 'Nedelišće', pp. 203–204.

13 These were a Herbarium of Peter Melius Juhász and a song of Ferenc Töke on the siege of

Sziget, written in 1566 in Lendava. See Borsa, 'Rudolphus Hoffhalters Typographic', p. 32.

Nataša Štefanec

here to Juraj Zrinski, that he, Pergošić, wanted his work, 'to be printed by

the printer of His Lordship [i.e. respectively Hofhalter and Zrinski], who

was brought by His Lordship to the benefit and dignity of these few

remnants of land [i.e. Croatia-Slavonia]'.

Pergossic's statement permits

the following sequence of events. First, Juraj Zrinski invited Hofhalter

from Nagyvárad to this area, that is to MeĎimurje and to Nedelišće. Next,

Hofhalter moved on to Lendava where he printed Kulčar's books. Finally

(and as we will see), he returned to Nedelišće to print the Decretum.

In respect of the Decretum, it can hardly be coincidental that Rudolf

Hofhalter's father, Rafael, had eight years earlier, in 1565, printed in

Debrecen a Hungarian translation of Werbőczy's Tripartitum. The trans-

lation was done by Balázs Veres. Having arrived in Nedelišće, Rudolf

printed a similar edition — a Slavonian translation of the Tripartitum in

the kajkavian dialect. Rudolf inherited his father's printing works, which

meant that the same letters and the same woodcut on the title page might

be used in the Slavonian version as in the 1565 Hungarian edition.

Even

though settled on the Zrinski estates, the Hofhalter press retained its itin-

erant character, printing manuscripts in a variety of separate locations.

Having briefly described the circumstances in the region and the back-

ground of the Hofhalter press, we will now turn to Ivan Pergošić, notary

of Varaždin and translator of the Tripartitum. According to Pergošić's

own words, 'Encouraged by some good people who seek the integrity and

good reputation of their motherland, I took on this little task of translating

the Decretum written by Istuan Verböczy ... into the Slavonian language

as best as 1 understood it, to benefit those wishing to read these books in

14 Koiegha iaaz hotech vchiniti stampati Vassegha Ghoβpocztua Stamparem koiega Vasse

Ghoβpocztuo dopelia na koriβt i na odychenie oueh neuolinih zauersenih oβtankou

orβagha.. Da od togha nye tottu potrebno ghouoriti, Ier to vβaki koi ima kakou razum

vydi daby to byl praui fundamentum praue plemenite i ghoβpoczke nature noβiti paβku

na odychenie riechi Bosie, i na obrambu od nepriatelieu βuoie domouine: kotero chiny

vasse ghoβpocztuo gledaiuchi stoβu dobra perua kerβtianβka ghoβpoda chinyla. A

akobi i na nikogha vasse ghoβpocztuo ne ghledalo ima naasto doma ghledati na

pokoinogha i βrechnogha βpomeneniáa i dobra ghlaβa ghoβpodina i occza βuoiegha

Zrinβkogha Miklouussa, koi tern orβaghom i u Banβtue poβlussi, i u kraissniem

Szigheczkom ghradu zeunoghimi kerscheniki i vitezi teh orβaghou polagh vere

kerβtianβke i Czeβaroue βuelloβti kakoie Boghu bylo vghodno vmre.

15 Borsa, 'Rudolphus Hoffhalters Typographic', p. 33; Georgijević, Hrvatska

književnost, pp. 45–47.

16 The notion of a travelling printing house was introduced by Franjo Fancev in 1922

(Franjo Fancev, 'Počeci kajkavske književnosti i štampanje prvih kajkavskih

knjiga', in Jugoslavenska njiva, VI, knj. 1, Zagreb, 1922).

76 Pergošić 's Translation of the Tnpartitum into Slavonian

Slavonian'.

At the end of the book, in his address to the reader (Lectori

bono) Pergošić also stated that '...in some places you will find some

abbreviations in chapters, especially in those in which there was no need

to translate from Latin into Slavonian, where I partly followed Balas

Veres who translated this Decretum into Hungarian'.

The Decretum was dedicated to Juraj Zrinski, and from the dedication

it is plain that Pergošić and Zrinski knew each other well. Pergošić was

highly appreciative of Zrinski, his deeds and his patronage. The book

starts thus — 'To a great and powerful gentlemen, Lord Juraj Zrinski,

Perpetual Count of Zrin, Tavernicus, Counsellor and Captain of the Illus-

trious Emperor and King in the Hungarian Land, he [ie Pergošić] wishes

all the goodness of God to his merciful lord'.

Pergošić's words may of

course be taken at face value. He and his lord were engaged in a joint-

activity the aim of which was to render the Tripartitum available in a

language which might be understood by Zrinyi's Slavonian subjects.

Nevertheless, a few issues remain which require clarification.

***

At the time of Hofhalter's arrival, Juraj Zrinski was only 24 years old. As

Pergošić remarked, his father had died a hero's death before Sziget in

1566, when Juraj was only 17-years old. Juraj immediately had to take

over the management of the family estates. By 1574, he had already spent

eight years looking after a swathe of properties which stretched in an

unbroken line from the Adriatic coast to Kőszeg in western Hungary.

Moreover, in the same year, 1574, Juraj was appointed Supreme Captain

of the Lower Hungarian Border and Captain of Kanizsa. Living up to his

father's international reputation cannot have been easy. Juraj also held the

17 Po opomeneny nekih dobrih liuudi koiβe βuoie domouine pochteniu i dobru ghlaβu

raduiu: prieh ta mal truud, da od Verbevczi fstuana popyβan Decretom (koteroghaie

Laβlou krali otecz Laiussa kralia koterie na muhachu poghinul ghdabiβe pyβalo od

Bosiegha poroda 1514 leto zeuβe ghoβpode i obchine volium poterdil) na βlouienβki

iezik kolikoβamgha moghal razmeti iβpyssem, onem na haβan koteribi radi βlouenβki

te khnighe chtali.

18 Neghde ter neghde naides Titulusse okraachene, poimene v oneh poβleh koterih nie

bilo potriebno zdiachkogha na βlouenβko preobrachati, vkomβarn v nekih malih

meβteh Veres Balasa koterie na Wgherβki iezik te Decretom pretumachil naβledoual.

19 Velikomv i Zmosnomv Ghoszpodinv Ghoszpodinv luriu Zrinβkomu vekouechnomu

knezu od Zrinia Czeβaroue i Kralieue βuetlosti na Wgherβkom orβaghu Tarnikmestru,

Tolnachniku i Capitanu yβe dobro od Bogha βuomu miloβtiuomu ghoβpodinu selye.

Nataša Štefanec 11

hereditary title of Tavernicus, which by now served a purely honorific

purpose. He did not know Latin.

Indeed, it is probable that his schooling

was rudimentary. So far, I have not been able to trace any evidence of

regular education, although his younger brother, Nikola, was registered in

the Law School in Padua in 1584, at the age of 25.

Doubtless, the family

needed a lawyer.

Juraj was not able to survey all his huge possessions by himself, let

alone settle the many legal disputes that arose on properties that stretched

along the contested Ottoman-Christian border from the Adriatic Sea to the

Burgenland. He had to rely almost entirely on managers, although he did

so reluctantly. In judicial matters, he often authorized his noble retainers

to judge in his name acting in the capacity of his locumtenentes.

In the course of managing the Zrinski estates, both Juraj and his father

resettled numerous subjects and familiares from their lost possessions in

Pounje to Vas and Zala counties in western Hungary, where different

customary provisions prevailed. At this time, moreover, the remnant of

the Croatian-Slavonian kingdom was subject to large population inflows

from the south-east. The Zrinski estates and MeĎimurje did not escape

this immigration, as may be demonstrated by the large number of alien

surnames, including the ethnonym ' Vlach' .

Often the newcomers were

awarded privileges by noble landowners (for instance, tax exemption over

a period of 12 years or more); others were removed entirely from seigneu-

rial jurisdiction and permitted to retain their own customary law and insti-

tutions. Vinodol, a substantial maritime property of the Zrinski family,

had for centuries had its own legal codes. The Vinodol law code

20 Croatian State Archives, Arhiv obitelji Čikulini Sermage, Kutija 79. 1.2. The letter is

incorrectly dated in Emil Laszowski, Izbor isprava velikih feuda Zrinskih i Frankopana,

Zagreb, 1951, pp. 15–16.

21 1584. 16. 8-bris. Insani ferians scire cursus secundus dabit. Nicolaus Comes de Zrinio supr.

Dedit coronatum: Endre Veress, A paduai egyetem magyarországi tanulóinak anyakönyve és

iratai (1264–1864). Matricula et acta Hungarorum in universitatibus Italiae studentium,

Volume 1 (Padua: 1264–1864), Kolozsvár, 1915, p. 92.

22 In Krašić, on November 30, 1581. Wa toy Prawdy zydyly zw w kipw (my emphasis).

G[ospo]d[i]na m[ilostivog] knez my Herendych I knez Jwray Hrelyacz; at the bottom,

Herendić signed with Glagolitic and Hreljac with Latin letters. See Ivan Kukuljević

Sakcinski, Acta Croatica - Listine hrvatske, Zagreb, 1863, pp. 283–284.

23 See thus Drago Roksandić's paper delivered at the 'Triplex Confmium' international

conference (given at Krizevci, June 26–28, 2002): 'Ethno-confessional changes in the

Križevci County and the Varaždin Generalate, 1450–1750' (forthcoming).

78 Pergošić 's Translation of the Tripartitum into Slavonian

(Vinodolski zakonik) was first compiled in 1288. Urburaria, recording the

obligations of the urban communities of Vinodol were revised and

rewritten several times between the fifteenth and seventeenth centuries —

always, so it would appear, at the instigation of the counts of Vinodol,

respectively the Frankopan family and, after 1550, the Zrinskis.

These

legal codes were all characterized by strong elements of Croatian

customary law.

Throughout the Zrinski's numerous properties, migra-

tion had the consequence of spreading a complex mosaic of different legal

practices and customary laws. Juraj, who spent most of his time fighting

the Ottomans, surely felt himself obliged to sort out this situation. In this

respect, he probably welcomed the Tripartitum as a way of bringing order

and legal homogeneity to his far-flung possessions and their diverse

populations.

While Juraj Zrinski may not have been able to read the original Latin

text of the Tripartitum, he did know Hungarian and thus it is quite possible

that he was aware of the text through Veres's Hungarian translation. As a

consequence, he invited Rudolf, the son of the man who had originally put

Veres into print, to come to Nedelišće to print Pergošić's Slavonian

translation. As we have seen, Pergošić's own words demonstrate this point.

Moreover, we know that the Slavonian translation of the Tripartitum was

not without legal consequence, but acquired — as indeed we have

suggested was Juraj Zrinski's intention — a wider currency. The judicial

protocols of Krapina, which were also written in the kajkavian dialect,

include on at least two separate occasions statements taken from

Pergošić's Decretum. Further research will doubtless yield other

examples.

We should, however, note one signal curiosity. Juraj Zrinski and his

brother-in-law, Boldizsár Batthyány — a distinguished Hungarian

nobleman, humanist, patron of the arts, and an old friend of Juraj's father

— corresponded for decades, discussing a broad range of topics and

everyday events and problems. Yet nowhere .in their correspondence is

there any reference to the translation and printing of books, of either a

24 In 1574 the Zrinski brothers and Stjepan Frankopan sent commissioners to survey all

possessions and towns in Vinodol. Thereafter, they issued their demand that dijak Mihalj

Grandić should transcribe the decisions (odredbe) of Bemardin Frankopan as recorded in

stare i razdrte hartije in order thus to preserve the laws of Bakar and Grobnik (bakarske i

grobničke zakone). See Laszowski, Izbor isprava velikih feuda Zrinskih, p. 4. In 1605 a

number of urburarial registers were transcribed once again (those of Grobnik, Hreljin,

Drivenik, Grižane i Bribir): ibid.

25 See thus the studies of Miho Barada, Nada Klaić and Lujo Margetić.

26 Franjo Fancev, 'Beitrage zur historischen serbokroatischen Dialektologie', in Archiv für

Slavische Philologie, 31, 1910, pp. 367–381 (p. 375).

Nataša Štefanec

secular or religious type. This is indeed odd, especially in view of the

difficulties which Juraj encountered on account of the activity of the

Tridentine bishop of Zagreb, Juraj Drašković, upon which he often

remarked.

In view of the above, it must still remain an open question whether

Juraj had any larger plans for Pergošić's Decretum, beyond using this

edition for his own purposes on the family estates in a vernacular version.

Perhaps Pergošić's translation just came fortuitously to him. Perhaps he

simply wanted to emulate the rich literary activity of Batthyány's court.

In view of his life, it is quite reasonable to assume that he was simply too

occupied with military affairs to plan anything more serious or long term

in respect of the Decretum.

The history of Pergošić's Decretum suggests that our last observation

may not be too far from the mark. Difficulties of language and text were

evident even at the time of its printing. Of the five remaining copies of

Pergošić's Decretum (one in Zagreb, four in Budapest),

there were three

different editions. Each was composed using different dialectal versions

27 On Juraj Drašković, see Ivan Kukuljević Sakcinski, Poviest porodice Draškovića

Trakošćanskih, Zagreb, 1887, p. 14; Klaić, Povijest Hrvata, 5, pp 665–667.

28 Manlius first worked in Ungnad's print-shop in Urach. In 1562 he moved to Ljubljana

and established his own printing house with the encouragement of Juraj Dalmatin.

Although at first opposed by the Carniolan Estates, with Dalmatin's help he managed to

print his first book in 1575. In 1580, the Counter-Reformation started in earnest in

Carniola and Carinthia and the Archduke Charles began attacking Protestant printers.

Nevertheless, having one of the few printing houses in the region, Manlius did not print

only Protestant books. With the support of the bishop of Zagreb, Juraj Drašković, in

1578 Antun Vramec printed with Manlius his Chronicle in the Slavonian language,

dedicating it to Slavonian Estates. In 1582 Manlius was expelled from Carniola and

was invited to the court of Boldizsár Batthyány. In Németújvar (Güssing), he printed

sixteen books. In 1585, Juraj Zrinski invited him to his court in Monyorókerék. Over

the next two years, Manlius also travelled to Varaždin where he printed four books: the

Postilla in two parts of Antun Vramec in kajkavian (1586), Pergošić's Praefationes et

epistolae dedicatoriae (1587), and a book by Blaž Škrinjarić, De agno paschali (1587).

In 1587 he moved to the Zrinski estates. He worked until 1592/93 in Monyorókerék

(14 books) and Deutsch Schützen / Njemačke Šice (12 books). These books were

mostly in Hungarian. Thereafter he returned to Németujvár, and in 1597 he finally

moved to the Nádasdy estates, at Sárvár and Deutschkreutz, where he died. See Alojz

Jembrih, Antun Vramec i njegovo djelo. Prilog proučavanju starije hmatske

književnosti i povijesne dijalektologije, Čakovec, 1981, pp. 70–84, 242–245; Jembrih, 0

Vramcevoj kronici, Zagreb-Varaždin, 1992; Karl Semmelweis, Der Buchdruck auf dem

Gebiete des Burgenlandes bis zu Beginn des 19, Jahrhunderts (1582–1823), Eisenstadt,

1972, pp. 7–15.

29 See the comprehensive study by Karlo Kadlec (1909), above, note 2.

80 Pergošić's Translation of the Tripartitum into Slavonian

of the same text: one more kajkavijan part, an ikavian part, and a second

or koine kajkavian part.

Linguistic analysis has offered some possible

answers in regard to the origins of these dialectical forms and mixtures

and I will briefly give the basic results of this research. According to the

latest scholarship, the text in all three editions is the same after the 51

chapter. It is a kajkavian dialect taken from Moslavina region rather than

from MeĎimurje. As Pergošić said in his Preface, he translated the text

into Slavonian, not into the Croatian language, 'as best he understood it'.

Up to the 51

Chapter of Book One, what we are actually reading is a

mechanical ikavization of the text. This conforms to the language of the

so-called 'Ozalj Literary Circle', which was that used both in the Protes-

tant literature of central Croatia (also supported by the Zrinski family) and

which was spoken by the people living south of Zagreb and the River

Sava. This ikavization of the text was probably undertaken by someone

from the area of Ozalj who knew the language, and not by Pergošić

himself. According to Putanec's hypothesis, someone probably saw the

kajkavian translation as a first draft and told Pergošić that people living

south of the Sava would not understand it. Pergošić accordingly rewrote

this part of the text.

At the same time, however, Pergošić was probably aware that even his

kajkavian was not 'standard' enough. He originated from Moslavina, had

lived in Zagreb, and then moved to Varaždin. Each place differed in

respect of its form of the kajkavian dialect. In a small part of the text,

Pergošić even began to employ some sort of koine kajkavian redaction,

although it is still not clear how the redaction actually worked.

As there

exist today only five preserved copies of Pergošić's Decretum, repre-

senting no less than three separate editions, we may conclude that the

work was incomplete and tentative in respect of the forms in which it

survives today.

Perhaps the work of editing and refining the text was never completed.

Mihajlo Bučić, probably the first person to have been printed in

"Nedelišce, was excommunicated in 1574. A fierce post-Tridentine perse-

cution of Protestants loomed, and Rudolf Hofhalter had to leave the area

30 Valentin Putanec, 'Jezik "Decretuma" (1574) Ivana Pergošića', Hrvatski

dijalektološki zbornik, 6, 1982, pp. 269–277.

31 Ibid, pp. 269–277.

32 Ibid, pp. 274–276; Kadlec, 1909 (analysis of Juraj Polivka — see above: note 2); Putanec,

1983, pp. 333–334.

Nataša Štefanec 81

as soon as possible.

A letter of Maximilian II to Ladislas Bánffy, brother of

Miklos, in February 1574 testifies to the intensification of religious conflict.

Maximilian wrote that he had learned that there was a printer on Ladislas's

estate in Lendava, who had been expelled from Transylvania for embracing the

Arian heresy, but who persisted in printing and selling Hungarian heretical

books.

Under this sort of pressure, Pergošić was probably obliged to finish his

own work quickly and to submit his text to the printing house. If so, his haste

was not unwarranted, for it would be thirteen years before the next printer,

Manlius, came to Varaždin.

***

While it is certain that it was Juraj Zrinski and not the Bánffy family who

invited Hofhalter and supported the printing of the Tripartitum, it is less sure

who actually promoted the work of translation. Could it have been Juraj

Zrinski or was Ivan Pergošić acting alone? In his foreword to the Decretum,

Pergošić initially said that 'there were several good people' who urged him to

translate the Tripartitum. In the next sentence he mentions Juraj, but solely in

the context of bringing a printer to the area. If Juraj Zrinski had been behind

the translation and had invited the printer, would Pergošić not have connected

these two actions and attributed them both to Juraj? On the contrary, he clearly

distinguished between the 'several good people' and Juraj Zrinski. It should be

recalled that Juraj was a young gentleman with no established educational

record at the time when the translation started, which might have even been

begun several years before 1574.

So, who could those 'several good people'

be? Was it Pergošić himself, modest enough not to mention himself as the

initiator, but vain enough not to credit it to some other person by name? Or

were they the people from Pergošić's immediate surroundings, the so-called

'Varaždin literary circle'?

33 Putanec, 'Jezik "Decretuma"', pp. 274–276. Mihael Bučić is mentioned as a priest

(plebanus) without an office in the list of priests who participated in a synod of the

Zagreb diocese held on 8 March, 1574. In addition to him, eleven priests from

MeĎimurje were mentioned, and Belica and Turnišće parishes recorded as vacant. See

the Archives of the Archbishopric of Zagreb (Nadbiskupski arhiv u Zagrebu), Acta

Ecclesiastica, 8/25.

34 Bartolić, 'Nedelišće', p. 194.

35 1 agree with Bartolić that Pergošić most probably began his translation before Hofhalter's

arrival, possibly even several years earlier: Bartolić, 'Nedelišće', p. 196.

82 Pergošić's Translation of the Tripartitum into Slavonian

And who actually was Ivan Pergošić? Valentin Putanec

and Franjo Fancev have indicated

some aspects of Pergošić's life and career. Basing his research on two charters from the Academy

Archives in Zagreb, Putanec partially reconstructed Pergošić's family tree from the fifteenth

century onwards. He established that Ivan Pergošić's predecessors were praediales of the bishop of

Zagreb in Mikulinci.

They remained praediales until at least 1586 when we have the last written

confirmation of their status by the bishop of Zagreb, Juraj Drašković. Putanec also pointed out that

the language of the Decretum might be a version of the kajkavian dialect from Moslavina region

and not from MeĎimurje or Varaždin.

According to Putanec's calculations, Ivan Pergošić was probably born some time after 1521 as a

sixth child in one of the branches of the Pergošić family. Due to major Ottoman offensives in the

second half of the sixteenth century, the village of Mikulinci and indeed the whole area was

plundered and the Pergošić family was obliged to flee. It is not known where Pergošić acquired his

education, but he became a diak or litteratus. We find him first in Zagreb, than in Varaždin. For a

short time Pergošić was rector of the lyceum in Zagreb,

and some time after 1564 he came to

Varaždin with his sister Agata. In Varaždin he began a judicial career and was connected to

members of the 'Varaždin literary circle' such as Antun Vramec, Blaž Skrinójarić, Blaž Antilović and

others. Many small clues, though mainly from the 1580s onwards, indicate that he was an influential

member of this group.

Antun Vramec (1538–1588),

who was perhaps the most famous member of the Varaždin

circle, published his Chronicle in 1578, which he dedicated to the Slavonian estates, and his two-

part Postilla in 1586. Both

36 Valentin Putanec, 'Porijeklo moslavačkih Pergošića i povezano s tim porijeklo

kajkavskog pisca Ivana Pergošića', in Čazma u prošslosti i danas, Čazma, 1979,

pp.123–136.

37 A praedialis belonged to a category of vassal retained on the estates of church

dignitaries who held a praedium (arable land, pastures, buildings). A praedium was

awarded to free men, as an inheritable right in the male line. The vassal had a duty

to serve under the flag of his benefactor. The right to award a praedium belonged

to prelates in Hungary and Croatia. See Vladimir Mažuranić, Pravno-povijesni

rječnik, 2, Zagreb, 1908–1922, p. 1089. Mikulinci is a now vanished village in the

district of Ivanić in Moslavina, which used to lie between Božjakovina and Ivanić.

38 In Monumenta historica liberae regiae civitatis Zagrabiae, ed. Emilij Laszowski (vol. 16, Zagreb, 1939, p. 184),

we find the following entry. 1564. Solutio rectoris s(chole). Feria secunda proximo post Quasimodo magistro

Ioanni Pergwssych, qui seruiuit in officio rectoratus afesto Blasii, vsque festum Ascensionis domini, cui dedi flor.

3. den.

39 He was born in Styria, studied in Rome and Vienna, and having made a successful church career as a canon of the

chapter of Zagreb, married. On Vramec, see Jembrih, Antun Vramec i njegovo djelo; Jembrih, O Vramčevoj

kronici; Vjekoslav Klaić, Antonii Vramecz. Kronika, Zagreb, 1908.

Nataša Štefanec 83

were composed in Slavonian. Vramec was generously supported by

Bishop Juraj Drašković, who encouraged use of the vernacular and fought

at the Council of Trent for the abolition of celibacy. After Trent, however,

all printing in the vernacular was considered problematic and Vramec was

attacked on account of his writing in Slavonian. He was even suspected of

heresy. In the preface to his book, De agno Paschali, printed in 1587 by

Manlius, Blaž Škrinjarić expressed fears for the reception of his own,

anti-Calvinist writings in a situation where everything was viewed with

suspicion, where even Vramec's work had run into disapproval, and

where there were so many envious and malevolent people around.

The

situation was such that any literary activity which was connected to

Manlius or which set store on the use of the vernacular might be the

subject of malicious tittle-tattle and even of the accusation of heresy.

Pergošić also found himself in trouble on this account. In 'his'

second

book, Praefationes et epistolae dedicatoriae, a commentary on the epis-

tles of Erasmus of Rotterdam printed in 1587, Pergošić confessed that, 'he

did not want to translate it into the vernacular as he did not want to have

to experience the same ingratitude again'. For all this though, he again

had it printed in the Protestant printing house of Joannes Manlius,

although this was probably because Manlius's was the only press avail-

able.

It is not known whether Pergošić held office in Varaždin at the time

when he was making his translation of the Tripartitum. Apart from the

Decretum, where he is mentioned by date and name as the translator,

information on him only starts to appear in 1581. In that year, Pergošić

40 Franjo Fancev, 'Ein Beitrag zur Geschichte des Schrifttums in Kroatien', Archiv für

Slavische Philologie, 34, 1913, pp. 464–483 (p. 469); Olga Šojat, 'Pregled starije

hrvatskokajkavske književnosti', in Kaj, Nos. 9–10, Zagreb, 1975; Georgijević,

Hrvatska književnost, p. 50; Kukuljević Sakcinski, Poviest porodice Draškovića

Trakošćanskih, p. 14.

41 One should recall that at the Council of Trent even the highest members of the Catholic

clergy (such as Andrija Dudić and Drašković) fought for the abolition of celibacy. Antun

Vramec was married, and Dudić married later on in life. The relationship between the

vernacular and heresy was only clarified at the Second Vatican Council.

42 Fancev, 'Ein Beitrag', pp. 468–469. According to Fancev, Pergošić should not be

considered the author of the Praefationes, as this work is actually a compilation. See

Fancev, 'Ein Beitrag', pp. 470ff.

43 Putanec, 'Jezik "Decretuma"', pp. 275–276. Pergošić in his Praefationes says, in qua a

Translatione in linguam domesticam ob id abstinere volui, ne similem gratiam, quae

mihi in versione Decreti Trypartiti ab aemulis olim accidit, consequerer. See Fancev,

'Ein Beitrag', p. 469.

84 Pergošić 's Translation of the Tripartitum into

Slavonian

signed a charter as a notary {notarius civitatis warasdiensis) but it is not

known when exactly he assumed this role.

In 1587, Škrinjarić occupied

the position of a judge and Pergošić was referred to asjuratus civis like

Blaž Antilović and several others (Georgius Flaijsman, Lucas Jakopch-

ijch, Leonardus Pethrowijch Pileator, Franciscus Barber Zwerssijch).

During that period he was always referred to as a testis judicis et auditor

causarum. In 1587 he participated in the distribution of Christmas gifts.

In 1587/1588 Pergošić went to Pozsony as nuntius of Varaždin with

'Zwerssijch'. Zveršić was judge of Varaždin in 1592, 1594, 1596 and

again in 1600, the year of his death. (During his office, in 1592, he

produced oath formulas in kajkavian). While Škrinjarić was judex civi-

tatis from 1586, Antilović acted as his notary. Antilović became a judge

in 1588/89

Already in 1561 Blaž Antilović had translated the Rules of

the Weavers' Guild from Latin into kajkavian.

After 1588, Pergošić

was involved as a witness in a trial against Škrinjarić on grounds of his

adultery. He died in 1591/92 as notarius comitatus ex civitatis

Varasdiensis. Although married, he left no heirs and his property passed

to his nephew, Tomo Siprak, who was the son of his sister, Agata.

The biographical information given here indicates the people with

whom Pergošić communicated.

In this circle of writers, lawyers and

judges, Pergošić was prompted to publish something on his own. Perhaps

he thought his Decretum might be widely used and thus would further

his career. Possibly he even started to translate the Tripartitum as a way

of launching his career in the Varaždin magistracy. A translation of, the

Tripartitum would in this respect serve to secure his reputation, which

was exactly what he, as a newcomer to Varaždin, needed.

In respect of what we have seen, I would not connect the translation of

the Tripartitum to Juraj Zrinski but instead, albeit tentatively, to

Pergošić's own circle and to the particular circumstances prevailing

among the intellectual elite in the city of Varaždin.

44 Putanec, 1983, p. 334; Putanec, 'Porijeklo moslavackih Pergošića', p. 124.

45 Fancev, 'Ein Beitrag', pp. 472–475.

46 Putanec, 'Porijeklo moslavackih Pergošića', p. 123.

47 Fancev, 'Ein Beitrag', pp. 472–475.

48 Valent Putanec has also drawn attention to the relationship between Pergošić and the

leading Hungarian lawyer, Ivan Kitonić, who at one time owned one of the five extant copies of

Pergošić's Decretum. See Valent Putanec, 'Kajkavski pisac Ivan Pergošić kao Varaždinac (novi

prilozi za njegovu aktivnost u gradu Varaždinu i za njegove veze s pravnikom Ivanom

Kitonićem', in Varaždinski zbornik, Varaždin, 1983, pp. 333–337.

Nataša Štefanec

***

In Croatian historiography, the genesis of the Pergošić Slavonian trans-

lation of the Tripartitum has been the subject of much debate. It has not

yet been possible to find sufficiently reliable sources to enable us to

resolve some outstanding questions concerning this text. By utilizing the

results of other researchers as well as my own, I have sought to bring

together what information we have, to present some of my own conclu-

sions relating to the historical context in which the translation appeared,

and to outline-some of the possible motives of the main players. In

summary, I consider that the translation owed its inspiration to Pergošić

himself and to the immediate circle of Varaždin office-holders among

whom he moved. Juraj Zrinski, owner of the huge MeĎimurje estate set

beside the free royal city of Varaždin and patron of Protestant printers,

only created the background against which the Decretum, as well as many

other works, might be printed.

Werbőczy's Reception in Hungarian Legal Culture

Katalin Gönczi

Introduction

Werbőczy aimed to create a law that would last, and he did so. His

achievement came about not through statute (for the Tripartitum failed to

acquire the necessary royal seal) but instead through customary use,

through its role in the burgeoning legal literature, and as a part of

Hungarian national mythology. Werbőczy's law code dominated

Hungarian legal culture for centuries. First, the courts applied his rules as

if they were law and thus they acquired authority from jurisprudence.

Secondly, his scheme and categorization of the law dominated legal

writing, to such an extent indeed that even nineteenth-century commen-

taries adopted his approach and borrowed his language. In the age of

nation-building, the Hungarian translation of the Tripartitum provided the

first step towards establishing a national legal language. Thirdly, in

respect of national identity, Werbőczy was instrumentalized. His name

not only became a synonym for the law of the nation, but also served as a

symbol and source of patriotic emotion.

1. Social and Political Background

The house of Habsburg acquired the royal dignity in Hungary in the

sixteenth century. In 1687, after the Habsburg rulers had liberated the

territories hitherto controlled by the Ottomans, the Hungarian nobility

gratefully recognized the hereditary right of the Habsburgs to the

Hungarian throne.

This right was extended to the female line in 1723 in

1 Peter F. Sugar, Peter Hanák, Tibor Frank (eds), A History of Hungary, Bloomington,

1990, p. 117; Andras Gergely, Gábor Máthé (eds), The Hungarian State 1000–2000,

Budapest, 2000, pp. 66–67.

88 Werbőczy s Reception in Hungarian Legal Culture

exchange for a guarantee of the Hungarian nobility's continued freedom

from taxation.

The so-called 'Pragmatic Sanction' created an indissoluble

constitutional connection between Austria and Hungary as an inse-

parabilis et indivisihilis unio.

The Pragmatic Sanction of 1723 constituted a high point in the age of

royal absolutism during which time Austria established its supremacy in

the economic organization, trade and commerce of the Hungarian

kingdom. In respect of politics, the Habsburg rulers governed the land on

their own, and no other power influenced their decisions. The Hungarian

diet might be called upon to accept new forms of taxation, but otherwise

no discussion of national needs took place at this supposedly 'national'

forum. The nobility was effectively bought off by promises to conserve

its privileges. What debate there was took place in the county assemblies.

Austria's political dominance was reflected in cultural geography.

Hungary did not have a proper capital city. Although the diet customarily

met in Bratislava (Pozsony), the city lacked such national cultural institu-

tions as a theatre, opera house, museum or library. There was only one

national university in Trnava (Nagyszombat), which had been established

in the seventeenth century as an episcopal foundation, and which lay

under the control of the Catholic church.

The intellectual centre of the

Monarchy remained, therefore, Vienna. The premier Hungarian noble

families thus maintained their own palaces in the centre of the imperial

city, usually next to each other on the Herrengasse.

Although Buda Castle constituted the royal residence, the Habsburg

rulers preferred to govern Hungary from Vienna, and they were not really

interested in showing up on Buda's Castle Hill, even though it was the

traditional residence of the Hungarian kings. Indeed, when Maria

Theresa transferred the university from Nagyszombat to Buda and put it

under state control, she offered the royal castle to the university because

— as she saw it — Vienna was the true centre of Habsburg government

and Buda Castle a royal irrelevance. The offices of the absolutist govern-

ment resided in Buda. These included the principal administrative organ,

the Lieutenancy Council (Consilium Regium Locumtenentiale

Hungaricum) which had been appointed for Hungarian affairs by King

Charles IV (Emperor Charles VI). The Lieutenancy Council was headed

2 This right was originally derived from the Tripartitum: István Werbőczy,

Tripartitum opus juris consuetudinarii regni Hungariae, I, 9 [5].

3 Ferenc Eckhart, A Jog- és Államtudományi Kar története 1667–1935, Budapest,

1936, pp. 43–44.

Katalin Gönczi

by the palatine and was responsible for all matters relating to Hungary.

Between meetings of the diet, it functioned as the sole institution of

government. The official language was Latin.

In order to counter-balance Viennese cultural supremacy, some princes

sought to establish their own cultural institutions in Hungary. Prince Miklós

Esterházy, for instance, brought Joseph Haydn to his palace at Fertod. For his

part, Count György Festetich established a kind of private academy for

literature and the arts (Helicon) and a college for higher studies (Georgicon) in

Keszthely.

Unlike in Prussia, England and France, where royal government

took the lead in the cultural construction of the nation, the development of

national culture in Hungary had to do without royal support.

2. Legal Culture in the Eighteenth Century

In the eighteenth century, Hungarian legal culture was based on

Werbőczy's Tripartitum. The Tripartitum governed Hungarian civil law,

particularly in respect of the terms of landownership and succession.

Austrian codes had an additional impact in respect of the criminal law and

procedure. The Praxis Criminalis, an Austrian collection of customary law

from the late seventeenth century, was applied by the county courts in

Hungary. It was the courts, however, which determined what the law

actually was. As a consequence, jurisprudence played an outstanding role in

shaping the Hungarian legal system.

Hungarian legal scholarship in the eighteenth and even in the early

nineteenth century was characterized by its descriptive methodology. The

legal works of this period generally gave an overview of the institutions

of Hungarian law in the form of glosses and commentaries.

These books

sought to elucidate what laws, procedures and practices retained validity

through use — an approach typical in a system where customary law

prevailed. They were composed for practical purposes, for use in court

4 Sugar et al., A History of Hungary, p. 140; Holger Fischer, Eine Heine Geschichte

Ungarns, Frankfurt/M. 1999, pp. 80–81. Gergely and Máthé's The Hungarian State

1000–2000, written for general use by the current leading legal historians of Hungary,

unfortunately overlooks the constitutional changes which took place in

the age of absolutism.

5 Andrew C. Janos, The Politics of Backwardness in Hungary, Princeton, 1982,

p. 36.

6 Imre Kelemen, Institutiones juris privati Hungarici, 4 vols, Pest, 1814, and Pál

Szlemenits, Elementa Juris Hungarici Civilis Privati, 2 vols, Pozsony, 1819.

90 Werbőczy's Reception in Hungarian Legal Culture

and in legal training. Partly on account of the strict censorship maintained

during the absolutist period, they eschewed both critical analysis and

theoretical expositions.

The preeminent institution for study of the law was the Hungarian

University, which was attended by the sons of Catholic families. Legal

education was until 1844 conducted exclusively in Latin and consisted of

Hungarian, Canon and Roman law. The content and programme of

studies at the University was dominated by the methods and views of

Maria Theresa's adviser, Carl Anton Martini. Legal education thus came

under state control and the ruler determined both the curriculum and all

teaching appointments. Under these circumstances, it is not surprising

that the Hungarian University was little influenced by the ideas of the

Enlightenment.

Maria Theresa founded several Schools of Administration, which

sought to give a practical legal training suitable for state officials. To

balance the Catholic hegemony at the state university, the Protestant

church also founded its own institutions of legal education. Contacts with

the Protestant universities in northern Germany, the Netherlands and

Switzerland were close and many graduates attended courses abroad.

Jena, Halle, Wittenberg, Göttingen, Leipzig and Leiden were the universi-

ties most frequently attended by Hungarian students. Students also trav-

elled abroad to take advantage of courses in philosophy and theology as

well as to receive the type of systematic training in jurisprudence which

was otherwise unavailable in Hungary.

As a consequence of these contacts, Hungarian students became

familiar with new intellectual trends, particularly in respect of statistics,

cameral science and political economy. These ideas fed into legal educa-

tion and contributed to the development of a more scientific approach

towards the law, and to a keener apprehension of its nature and purpose.

The development of public legal science during the last decades of the

eighteenth century is particularly associated with the University of

Göttingen. New approaches towards the law and its study were trans-

ferred through the peregrinatio academica into Hungarian legal culture

and contributed to the development of modem legal science in Hungary.

The new generation of Hungarian legal historians and scholars

concentrated in the first place on hunting down, collecting and

publishing legal material preserved in family archives. Theirs was a

movement similar to the Monumenta Germaniae Historica school in

Germany. Martin Kovachich and his son, Joseph, were in this regard the

most distinguished and prolific scholars. Martin Kovachich, supported

by the palatine and a committee of the diet, travelled around Hungary

Katalin Gönczi

and Transylvania, searching for and publishing manuscript sources

which bore on Hungarian legal history.

Martin Kovachich was also in

contact with the German historians, Christoph Friedrich Nicolai,

Johannes von Müller and Georg Heinrich Pertz, who initiated the Monu-

menta Germaniae Historical A further critical collection of charters was

edited by György Fejer.

3. Werbőczy's Reception in the Age of Reform (1825–1848)

Meanwhile the Hungarian nobility had been aroused by the harsh central-

ization and Germanization undertaken by Joseph II (1780–90). Joseph's

administrative reforms alarmed the Hungarian nobles, and provoked

widespread opposition. Nevertheless, the spirit of Enlightenment

persisted during the short reign of his successor, Leopold II (1790–92),

together with the notion of modernization through legal reform. In 1790,

nine separate commissions were established with the consent of the diet

and enjoined with the task of elaborating new legal codes to regulate

commerce, the criminal law, the laws of contract and property, and so on.

Constitutional law was not included, lest it upset the delicate balance of

ambiguities enshrined in the Pragmatic Sanction. The movement for

reform faltered, however, with Leopold's premature death and with the

unmasking by his successor of the so-called 'Jacobin conspiracies'.

Reform gave way to a period of conservative reaction. As a consequence,

the customary framework embodied in Werbőczy's Tripartitum received

a second wind.

In 1825 the Hungarian Diet met for the first time in thirteen years, and

debate was renewed over the issue of reform. On this occasion, the ruler

proved more tractable. Over the preceding years the movement for

national liberation in Italy had gathered pace and, under these circum-

stances, the ruler had no wish to put Vienna on a collision course with

7 Martinus Georgius Kovachich, Vestigia Comitiorum apud Hungaros ab exordio regni

eorum in Pannonia usque ad hodiernum diem celebratorum, 3 vols, Buda, 1798–1801;

by the same author, Formulae solennes styli, Pest, 1799; and Josephus Nicolaus

Kovachich, Sylloge decretorum comitialium inclyti regni Hungariae, quae in vulgaio

corpore juris Hungarici erepta sunt, 2 vols, Pest, 1818.

8 Gusztáv Wenzel, Kovachich Márton György, Horváth István és Fejér György mint

magyar történetmíivelök, re-published and edited by István Soós, Fons, 3, no 1, 1996,

pp. 51–71 (p. 58).

9 Georgius Fejér, Codex diplomaticus Hungariae ecclesiasticus ac civilis, 8 vols in 42

parts, Buda 1829–1832.

92 Werbőczy 's Reception in Hungarian Legal Culture

Hungary. Accordingly, the political attitude of the Austrian government

towards Hungary took on a new direction and the reform of the legal

system was put once more on the agenda of the Diet. Discussion of the

drafts of 1790 recommenced.

As a consequence of the movement for reform, the prevailing legal

literature in Hungary had already changed its character. Although the

descriptive method was maintained in the state-contolled, conservative

environment of the University, elsewhere a critical legal literature had

emerged which sought to contribute to the debates of the Diet. The legal

literature drew on the latest ideas abroad and championed reform of the

law as an instrument of modernization.

In addition to the University and Schools of Administration, several

new institutions were founded in which discussion of the law was

promoted. The most important of these was the Hungarian Learned

Society (Magyar Tudós Társaság — known after 1845 as the Hungarian

Academy of Sciences), in respect of which the Royal Society in Britain

served as a model.

The Academy's most important activity was to

develop a national vocabulary of science and scholarship which would

serve to establish the cultural community of the nation.

The commission

for legal sciences, which commenced work in the 1830s,

sought to

compile a lexicon of Hungarian legal terms. Among its first activities was

the translation of the most important Latin legal works, amongst which

was Werbőczy's Tripartitum. The assembly of the Academy also decided

to compile a law dictionary, and in 1843 the first vocabulary of 20,000

Latin legal terms was published together with their Hungarian equiva-

lents.

The first translation of Werbőczy in the Age of Reform was

completed in 1830 by János Perger.

Although the work of a single

scholar, Perger's translation was inspired by the larger endeavour of foun-

ding a national scientific language. Additionally, Perger wanted to make

10 György Fejér published a paper on this topic in 1809. See Sándor Kónya (et. al.), A

Magyar Tudományos Akadémia másfél évszázada 1825–1975, Budapest 1975, p. 22.

11 The language law was passed in 1844 and affected the rights of the non-Hungarian

speaking minorities in the kingdom of Hungary. See János Varga, A Hungarian Quo

Vadis. Political Trends and Theories of the Early 1840s, Budapest, 1993, pp. 174–175.

12 Geza Magyary, 'A Magyar Tudományos Akadémia es a magyar jogtudomany', in A

Magyar Tudományos Akadémia első evszázada, Budapest, 1926, vol. 1, pp. 55–80 (pp.

56–57).

13 Törvénytudományi müszótár, (ed.) Magyar Tudós Társaság, Buda, 1843.

14 János Perger, Werbőczy István magyar forditása némely jegyzetekkel megvilágositva,

Pest 1830.

Katalin Gönczi

Werbőczy accessible in a modern edition, which might be read and under-

stood by all.

The most important developments in respect of the Tripartitum in the

Age of Reform are indissolubly linked with the person and programme of

Count Istvan Széchenyi.

Széchenyi had been inspired by the economic

theories of Adam Smith, and he sought ways of adapting Smith to

Hungarian circumstances.

Accordingly, he questioned the special privi-

leges which Werbőczy accorded to the nobility and, in particular, their

relevance to a modern industrial society. Werbőczy had affirmed the

nobleman's freedom from taxation

and he had put all sorts of obstacles

in the way of his being taken to court. Additionally, the system of avitic-

itas, and of the collective rights to land vested in the family, made it hard

to sell or mortgage property in order to obtain working capital for invest-

ment. Széchenyi questioned the rationale behind these privileges and

customs, and he demonstrated that they were inimical to commerce and to

the economic development of the country.

Széchenyi's comment that, as the first step in creating a new legal

order, nine-tenths of the Tripartitum should be burnt

is often cited in

Hungarian historical literature.

This was, however, an age given to

romantic exaggeration — and to word-play. What Széchenyi actually

meant here was that the 'ninth' and the 'tenth' should be abolished: the

'ninth' or nona being the service-rent due to the landowner from his peas-

ants, and the 'tenth' being the tithe payable to the Church. In short, he

15 Sugar et al, A History of Hungary, pp. 190–193.

16 See istvan Széchenyi's three leading works on social, political and economic affairs:

Hitel, Pest, 1830; Világ, Pest, 1832; and Stádium, Leipzig, 1833. For further details,

see Katalin Gönczi and Thomas Henne, 'Leipziger Verlage, liaisonmen und die

Anfänge der modemen Rechtswissenschaft in Ungarn', Zeitschrift der Savigny-Stiftung

für Rechtsgeschichte, Germanistische Abteilung, 118, 2001, pp. 247–272 (p. 258).

17 Martyn Rady, Nobility, Land and Service in Medieval Hungary, Basingstoke and

London, 2000, pp. 144–146.

18 István Széchenyi, Hitel, Pest 1830, pp. 188–192.

19 Széchenyi, Hunnia, Pest, 1858, pp. 78–79.

20 Tamas Vecsey, Széchenyi és a magyar magánjog, Budapest, 1895, p. 2 (cited by

Ferenc Mádl, 'Das erste Ungarische Zivilgesetzbuch — das Gesetz vom Jahre 1959 —

im Spiegel der Geschichte der zivilrechtlichen Kodifikation', in Gyula Eörsi (ed.), Das

ungarische Zivilgesetzbuch in fünf Studien, Budapest 1963, pp. 9–112 (p. 96, fh. 99)

and János Zlinszky, 'Ungarn', in Helmut Coing (ed.), Handbuch der Quellen und

Literatur der neueren europäischen Privatrechtsgeschichte, München 1986, vol 3, part

2 (Gesetzgebung zum Allgemeinen Privatrecht und zum Verfahrensrecht im 19.

Jahrhundert), pp. 2141–2213 (p. 2160).

Werbőczy’s Reception in Hungarian Legal Culture

advocated that the nexus subditelae and ecclesiastical privilege should be abolished and not that the

Tripartitum be literally consigned to the flames. Indeed, Széchenyi stood for gradual, organic change. In

his work On Credit, Széchenyi railed against those who would seek to have the entire Hungarian Corpus

Juris torn up.

It was Széchenyi's conviction that a reformed Hungarian legal system should be built

upon the Tripartitum, but with the elements relating to manorial service and noble privilege stripped

from it. Accordingly, he pressed at meetings of the Hungarian Learned Society for a modern scholarly

translation of the Tripartitum.

In 1840 the process of legal codification reached an intensive phase. New laws on commerce had

been passed, and a committee was set up to draft a reform of the criminal law.

This burst of legislative

activity rested, however, on the conviction that historical and customary provision might be set aside and

entirely new regulations imposed through statute. Consequently, the relationship between these two

separate repositories of law came to the forefront of scholarly enquiry. As the preeminent source of

customary provision, Werbőczy's Tripartitum accordingly became a subject of particular interest.

Several legal studies dealt with the author of the Tripartitum. A biography of Werbőczy was, for

instance, published in 1842,

and, in the yearbook of the Academy, the leading legal historian, Pál

Szlemenits, published a paper on the Tripartitum.

At the same time as the language laws became a leading topic of debate at the diet, Jozsef Ponori

Thewrewk compiled in 1844 a dictionary which translated into Hungarian Werbőczy's Latin

terminology.

The list he produced showed that legal terms were elastic and that the Hungarian

language was insufficiently nuanced. Thewrewk was unable, for instance, to distinguish between ius and

iustitia, both of which terms he rendered in Hungarian as igazság. Legislative acts were described by

another term, törvény. Precisely the same difficulty was encountered by Ignac Frank in the title of his

famous commentary, 'The Law determining the Law [Justice] in Hungary' (Az osztó igazság törvénye

Magyarhonban — the

21 Széchenyi, Hitel, p. 48.

22 Mádl, 'Das erste Ungarische Zivilgesetzbuch', p. 96.

23 Katalin Gönczi, 'Wissenstransfer bei den Kodifikationsarbeiten im ungarischen Vormärz', Ius Commune.

Zeitschrift für Europäische Rechtsgeschichte, 25, 1998, pp. 261–290 (pp. 273–278).

24 Imre Palugyay (the younger), Werbőczy István rövid életrajza, Buda 1842.

25 Pál Szlemenits, 'Werbőczy István hármas könyvérol', Magyar Tudományos Akademia Evkönyvei, 7,

Buda, 1846.

26 József Ponori Thewrewk, Werbőczy István deák műszavai régi magyaritásokkal, Pozsony, 1844.

Katalin Gönczi

title is almost incomprehensible in English translation; in respect of legal

terminology the English language is even less subtle than Hungarian!).

At the behest of the diet, the Academy resolved in 1840 to translate the

Corpus Juris Hungarici into Hungarian. A committee of lawyers was

accordingly set up, among whose members were two leading figures in the

legal developments of the 1840s, László Szalay and Lőrinc Tóth. Both were

members of the Academy and former students of law, although after

graduation neither had had any contact with the University — typically, the

law faculty of the University had no part in these discussions. Having

completed their own work, the translators discussed the terminology which

they had used from the vantage-point of the 'history of Hungarian law', 'the

linguistic comprehension of the medieval laws', and 'the rules and spirit of the

Hungarian language' .

The final draft was supervised by the lawyers Antal

Sztrókay and Pál Szlemenits, while the poet Mihály Vörösmarty was appointed

responsible for matters of linguistic coherence. The first fruit was a new

translation of the Tripartitum, published in 1844.

In 1844–47 the Latin text of

the Tripartitum was included in a new three-volume edition of the Hungarian

laws.

The purpose of this edition was to provide a definitive Latin version of

the laws and customs of Hungary, resting on the thorough and critical reading

of the extant manuscript sources, from which a translation might subsequently

be made. At this time, the laws of the kingdom (including the Tripartitum)

existed in several versions — the 'historically authentic' account, as determined

by Martin and Joseph Kovachich, and the 'customary recension' which,

although at odds with the historical version and inaccurate in its transcription,

had at least been sanctified by use.

A second edition of the Tripartitum was published in 1864. The

extremely short preface to the second edition was written by László Szalay

in May 1864,

at that time General Secretary of the Academy. A third

edition was completed in 1894, translated by Sándor Kolosvári and Kelemen

Óvári, and introduced by the General Secretary of the Academy, Kálmán

Szily.

The Kolosvári- Óvári translation was subsequently

27 Ignac Frank, Az oszto igazsdg torvenye Magyarhonban, Buda, 1845.

28 Ferenc Schedel, 'Eloszo az elso kiadashoz', in Werbőczy Istvdn Hdrmaskonyve, 2nd

edition, Pest 1864, unpaginated.

29 Werbőczy Istvdn Hdrmaskonyve, Pest 1844.

30 Decretum generate inclyti regni Hungariae partiumque eidem annexarum. Tomus

primus continens opus Tripartitum juris consuetudinarii ejusdem regni auctore

Stephano de Werbocz [...], Buda 1844–1847.

31 Werbőczy Ish'dn Hdrmaskonyve, 2

n<i

ed., Pest 1864.

32 Werbőczy Ist\>dn Hdrmaskonyve, 3

ed., Budapest 1894.

96 Werbőczy s Reception in Hungarian Legal Culture

included in the 'Millennium' edition of the Hungarian laws, where it was

reproduced under the editorship of Dezső Markus in 1897.

4. Instrumentalizing the Tripartitum

In the period following the War of Independence in 1848–49, Hungary

laboured under the Bach regime and, thereafter, under the rule of the

Austrian Civil Code. During this time, Werbőczy became a symbol of

national identity, and his work was considered to embody those

Hungarian values which 'neo-absolutism' and the 'illegal' rule of Franz

Joseph sought to excise.

Werbőczy became a symbol of national inde-

pendence and the Tripartitum a codeword for anti-Habsburg sentiment.

The Tripartitum thus symbolized the common desire for 'our old

Hungarian law', while Werbőczy himself joined Kossuth as one of the

leading embodiments of the national will. In a portrait painted in the

second half of the nineteenth century, we may thus see Werbőczy wearing

a traditional Hungarian military costume and bedecked with fur, but with

facial features uncannily close to Kossuth's own.

The re-moulding of Werbőczy as a national hero necessarily involved

the downplaying of his obligation to a larger, European legal literature.

His formulation after the peasant uprising of 1514 concerning the origins

and noble character of the Hungarian nation was reinterpreted in such a

way as to give the Magyar nation exclusive national hegemony within the

otherwise multi-national Hungarian state. Likewise, Werbőczy's 'doctrine

of the Holy Crown' was recast in terms of public law and of the rights of

the Hungarian state to complete independence within the Habsburg

Monarchy. The Tripartitum was thus re-worked so as to suit the pseudo-

democracy and pseudo-statehood of Ausgleich Hungary.

The Tripartitum was incorporated in the millennial edition of the

Corpus Juris Hungarici, and is usually considered the last volume of this

series. But, as it turned out, the 'last' volume was in fact published first,

for the Tripartitum left the printing house earlier (1897) than the first

volume of the decrees (1899), which published the earliest laws of

Hungary from 1000 to 1526. The publication of the CJH was timed to

33 György Szabad, Hungarian political trends between the Revolution and the

Compromise (1849–1867), Budapest, 1977, p. 34.

34 László Szalay, 'Werbőczy és Verancsics Antal', Budapesti Szemle, 1857, pp.

164–90.

35 See thus the very first page of the 1864 Hungarian edition of the Tripartitum: Werbőczy

István Hérmaskönyve, 2

edition, Pest, 1864.

Katalin Gönczi

coincide with the Millennium and the dazzling celebration of the thou-

sand-year anniversary of the 'home-taking' (honfoglalás). (The year of

the invasion was, incidentally, decided by an act of parliament which

overrode the opinion of historians.) In the introduction to the millennial

edition of the Tripartitum, Werbőczy's achievements were described in

passionate terms. The reader was told that Werbőczy had 'signed his

name in the book of fate', that he had a 'burning love for his home-land'

and 'enormous power as an orator', and that 'he noticed every beat of the

heart in the body of the nobility'.

These tendencies persisted in the interwar period. Following the break-

up of the historic kingdom, which left large Hungarian minorities living

outside the boundaries of the new state, nation and territory no longer

coincided. Accordingly, the idea of the nation had to be refashioned in

terms of a cultural and linguistic community which transcended political

borders. The search for a new identity drew scholars to re-examine

Hungary's legal inheritance. On the one hand, the relationship between

Hungarian law and the English common law tradition was investigated

and parallels between the Magna Carta of 1215 and the Hungarian Golden

Bull of 1222 drawn. Béni Grosschmid, in particular, stressed the close

similarity between English civil and public law as it had developed in the

Middle Ages and the provisions of Hungarian customary law as contained

in the Tripartitum.

On the other hand, Hungarian historians extolled the

uniqueness of Hungarian customary law as the embodiment of the

national character and spirit of the Volk. This second trend comported

with contemporary approaches in German legal thinking and contributed

to the increasingly nationalist content of discourse in the social sciences.

As Werbőczy was ever more intrumentralized for political purposes,

his dress turned increasingly 'red, white and green'. His reputation and

legacy were accordingly refashioned to fit in with a nationalist agenda.

During the interwar period, he was most often cited in connection with

the doctrine of the Holy Crown, and his work was used to buttress the

national-conservative myth of the 'Thousand-Year-Old-State of St.

Stephen'.

During the Second World War, the 400th anniversary of

István Werbőczy's death was celebrated by a conference at the University

36 Sándor Kolosvári and Kelemen Óvári, Preface of the translators, in Werbőczy István

Hármaskönyve, Corpus Juris Hungarici /Magyar Törvénytár 1000–1895, Budapest,

1897, pp. xi–xxxii (p. xvii).

37 Beni Grosschmid, Werbőczy és az angoljog, Budapest, 1928.

38 István Csekey, 'Werbőczy és a magyar alkotmányjog', in (eds) Elemér P. Balás, István

Csekey, Istváan Szászy, György Bónis , Werbőczy István, Acta Juridico-Politica 2,

Kolozsvár 1942, pp. 43–81. Also published as an offprint.

98 Werbőczy's Reception in Hungarian Legal Culture

of Kolozsvar (Cluj). The 1941 conference took place only a year after

Hitler had given southern Transylvania to Hungary and was intended to

legitimize the Hungarian presence at the former University of Cluj, which

had by this time worked under Romanian sovereignty for more than

twenty years. The Law Faculty of the University of Kolozsvár had started

in 1940 a new series of publications, and the papers given at the 1941

conference were reproduced in the second volume of the series.

The legend of Werbőczy retained sufficient efficacy to provoke a fierce

reaction by communist historians. In 1947, even before the takeover, the

Marxist ideologist and historian, Erik Molnar, reinterpreted Werbőczy's role

in accordance with the mechanical Marxist adaptation of history.

Werbőczy

was accordingly consigned to a closed chapter of Hungarian history. He was

held to have no relevance in Hungarian history, except as a persecutor of the

peasantry, and his Tripartitum was treated as an antique curiosity. In

western scholarly circles, however, Werbőczy was considered differently. In

1969, the Max Planck Institute for European Legal History in Frankfurt

initiated a facsimile edition of the Tripartitum.^ The medievalist, György

Bónis, who had helped organize the 1941 conference, wrote the preface.

After 1989, Werbőczy made his latest renaissance. It is surely no wonder

that in the turbulent years of the Hungarian transition two new editions of

the Tripartitum should have appeared.

A preface by the director of a Pécs

printing factory, Imre Bodnár, encapsulates precisely the prevailing views

on Hungarian national culture in 1989. In patronizing fashion, Bodnár

criticizes the new media for their destructive effect on the cultural

aspirations of young people. Bodnár explains that by publishing the

Tripartitum he aimed to reassert Hungarian values for the intellectual

benefit of Hungarian youth. Bodnár's private initiative was followed by a

new scholarly edition in 1990 which was published under the supervision

of György Bónis . From then on, Werbőczy was rediscovered by legal

historians.

Nevertheless, as János Zlinszky has

39 Elemér P. Balás, István Csekey, István Szászy, György Bónis (eds), Werbőczy

Islván, Kolozsvár, 1942 (see note immediately above).

40 Erik Molnár, 'Werbőczy és a rendi jog', Társadalmi Szemle, 1947, pp. 109–114.

41 Tripartitum opus iuris consuetudinarii inclyti regni Hungariae per Stephanum de

Werbewcz editum Wien 1517, (Faksimiledruck mit einer Einleitung von György

Bónis), Frankfurt/M, 1969.

42 Tripartitum, Pécs, 1989, and Tripartitum, Budapest, 1990.

43 Gábor Hamza (ed.), Tanulmányok Werbőczy Istvánról, Budapest, 2001.

Katalin Gönczi 99

pointed out, our understanding of the full complexity of Werbőczy's work is

still far from complete.

Conclusion

The history of the Tripartitum and of its editions over the last two centuries

indicates the close correlation between its publication and the decisive

stages of Hungarian legal history. In the 1840s, the Tripartitum contributed

to Jhe formation of a national legal culture; in the 1860s, it was used as a

tool against 'foreign' Austrian legal supremacy; in the 1890s, the

Tripartitum acquired its special place in national mythology, a role which it

held until the communist take-over, after which it was pushed to the

sidelines. In 1989, the Tripartitum was rediscovered. The period after 2004,

the year of Hungary's accession to the European Union, will be a

challenging one. National individuality in respect of legal traditions will

have to sit within the framework of the European Union. In this respect, the

need for a modern edition of the Tripartitum, just as of other important legal

sources,

is beyond question.

44 János Zlinszky, 'Werbőczy jogforrástana', Jogtudományi Közlöny, 48, 1993, pp.

374–376 (p. 374).

45 See thus the new edition of Buda's medieval Stadtrecht: László Blazovich and

József Schmidt (eds), Buda város jogkönyve, 2 vols, Szeged, 2001.

The Primacy of Consuetudo in Hungarian Law

László Péter

Introduction

Hungary's ancient constitution, as elsewhere in medieval Europe, was

generated by custom. However, the Middle Ages lasted longer in some

parts of Europe than in others; in Hungary they lasted well into the nine-

teenth century when, in sharp contrast to Austria,

custom was still the

dominant source of law. Consuetudo regni, as a legal source, possessed

greater vitality than royal decree, decretum enacted by the king with the

consent of the estates at the diet, royal privilege, or the judgement of a law

court.

The single work which lent shape to Hungarian law more than any

enactment for over three centuries was a customary,

which did not

explicitly include the decreta, the statutes. Werbőczy, a sixteenth-century

Hungarian Bracton, in the Prologue of the Tripartitum, treats consuetudo

and decretum as having the same force of law. He argues, not unlike

Bartolus and many before him, that if statute law is subsequent to

contrary custom, then the statute should annul the custom. If, however,

1 In nineteenth-century Cisleithania, custom even in civil law was not a recognized

source of law (except when the law expressly referred to it — which it hardly ever

did): Allgemeines bürgerliches Gesetzbuch, Vienna, 1811, para. 10. The 1811 code

refers to custom and use on two occasions only — in respect of local pasturing rights

and of procedure for reporting 'lost and found' property.

2 István Werbőczy, Tripartitum opus juris consuetudinarii inclyti regni Hungariae

(hereafter Trip.), Syngrenius, Wien, 1517. I have used the 'Márkus edition', Budapest,

1897, which is the 'customary' rather than the 'historically authentic edition' (the two

differ in respect of several thousand minor particulars). The diet commissioned

Werbőczy, protonotary of the High Court, to collect the country's laws. The draft,

approved by a committee, attained royal approbatio, but the work was never

promulgated by the king in a decretum. The Tripartitum was to become the book in

Hungary which, apart from the Bible, attained the highest number of editions (fifty-

four to date).

101

102 The Primacy of Consuetudo in Hungarian Law

the statute precedes established custom, the latter prevails over the

former. Approved general custom cancels the statute everywhere; local

custom sets aside the statute only locally.

Custom interprets, comple-

ments and may supplant statute law.

We need not follow the large litera-

ture on Werbőczy's foreign sources: what he took from Roman Law

(passages from the Digests) and from Canon Law. These influences were

secondary. Hungarian law was overwhelmingly vernacular in form and

content. Indeed, after the Prologue Werbőczy abandons the learned

distinctions he has made.

He does not maintain the view that custom and

statute are different and equal sources of law. Consuetudo lies behind and

is paramount over all other forms of law. royal edicts, letters of privilege,

judgements of the court and decreta regni.

Law is not made or created; it

is not an expression of will — not even the will of the community. Law is

ius, right, which exists as the approved habits and usages of the commu-

nity.

The statutes only record and promulgate customary rights recog-

nized as already binding.

Ius, for Werbőczy, is not unchanging: it adapts to varying circum-

stances. But the adaptation is not judicial. Ius is not judge-made law:

judicial practice is merely evidence rather than the cause which generates

3 Tripartitum, Prologue, 12.

4 Ibid, 2 [3–5].

5 On the conflict between the Prologue and the rest of the work, see József Illés, Bevezetés a

magyar jog törtéhetébe, Budapest 1910, p. 144 f. passim; György Bónis, Középkori

jogunk elemei, Budapest 1972, pp. 237 ff. In the past the Prologue was seen as the

foundation of the work; Bonis, by contrast, emphasized that the 'true Werbőczy' could be

found in the three parts, ibid., p. 261.

6 E.g. Trip. II, 6. Werbőczy used consuetudo in the title in a generic sense for law: cf. paras

1–3 and esp. 9 (consuetudo accepted some of the decreta). The Hungarian equivalent of

consuetudo used to be törvény (lex) as well as szokás; see further examples in Grosschmid,

Magánjogi előadások, Budapest, 1905, pp. 405, 410, 543; also see György Bónis, Törvény

és szokás a Hármaskönyvben, Kolozsvár, 1942, esp. p. 8.

7 József Illés held that until 1848 customary law was 'the most powerful source of law',

Bevezetés, p. 213. The Tripartitum itself was the best example: a private publication (cf.

note 2 above), it became 'law' and was frequently republished together with the decreta

regni, which sometimes referred to it, as Werbőczy's work had acquired general approval

even before its publication in 1517. Yet, notwithstanding its authority, the Tripartitum,

being a private publication, allowed open debate on the law. János Kitonich's work, for

instance, from 1619 generated a literature well before the nineteenth century, giving a good

start to the growth of Hungarian jurisprudence.

László Peter

ius .

For Werbőczy and for his successors over three centuries, the authority

behind ius non scriptum as much as written law is the approval of the

community, tacitus consensus populi which the 'lawmaker' is to discover and

express

and the judge merely to apply.

Political authority, as much as all the

other concerns of law, was founded on ius. It could not have been otherwise

because 'public law' was not even a distinct branch of the legal system before

the nineteenth century.

Succession in the royal office,

the coronation, the

royal oath, the Inaugural Diploma, the constitution of the diet and also the

ambit of the diet's authority were largely regulated by custom.

And so were

the rights of the king to rule and govern as much as the rights of the nobles,

of the other privileged groups, of the counties and sedes of the districts.

After the Habsburg dynasty had acquired the throne in 1526 the

authority of the diet and that of the decretum increased without, however,

leading to a statutory system of law. The decreta regni, the statute laws,

which had accumulated in manuscript collections for centuries, were

published for the first time by two bishops in 1584 in Nagyszombat

(Trnava).

Like the Tripartitum, this was a private edition, although

8 Judges took decisions without reference to statute law juxta antiquam et approbatam

consuetudinem. See Ferenc Eckhart, 'Jog- és alkotmánytörtenet' in (ed.) Bálint Höman,

A magyar történetirás új utjai, Budapest, 1931, p. 283.

9 On this view consuetudo may or may not maintain a decretum after the death of its

promulgator.

10 Art. X of 1492 ordains the judges to administer justice juxta regni antiquam et

approbatam consuetudinem. As the royal courts were dependent on the king, the

estates were most reluctant to accept judicial decisions as a source of consuetudo.

11 A learned man, Werbőczy distinguished in the Prologue jus publicum from jus

privatum (2 [3]), only to disregard the distinction in the rest of his work.

12 Despite the introduction of agnatic succession in 1687 and that of cognatic

succession in 1723, the Hungarian Pragmatic Sanction limited by decreta the

acceptance of the rules of succession to specified branches of the dynasty. The

estates, however, preserved 'the approved customary right' to elect the king should

these branches become extinct. See Art. Ill of 1687 and Art. II of 1723, para. 11.

13 Cf. Eckhart, 'Jog- és alkotmanytörtenet', p. 279

14 Zakariás Mossóczy and Miklós Telegdi, Decreta, Constitutiones et Articuli Regum

Inclyti Regni Ungariae. The work was based on codex collections and the appendix of a

published historical work by Bonfini. See Béla Iványi, Mossóczy Zakariás és a magyar

Corpus Juris keletkezése, Budapest, 1926 (on the background, the sources of the work

and on Mossóczy), esp. pp. 62 f; Mihály Pámiczky and János Bátyka, A magyar corpus

juris, Budapest, 1936, esp. p. 42 ff; Zoltán Kérészy, A Corpus Juris Hungarici mint irott

jogi kútfő, Budapest, 1935, pp. 5, 30, 35; Ándor Csizmadia, 'Previous editions of the

laws of Hungary', in János M. Bak, György Bónis, James Ross Sweeney, The Laws of

the Medieval Kingdom of Hungary, vol. I (1000–1301), Salt Lake City, 1989, pp. xxiv f.

104 The Primacy of Consuetudo in Hungarian Law

issued under royal licence as were all the many other editions that

followed. The Jesuit Márton Szentiványi's edition of 1696 fitted the title

Corpus Juris Hungarici to the collection.

The principle that the diet and the king make and unmake laws was not

yet accepted for at least another century. The nobility stubbornly fought

against the so-called Revisions-clausel which the court had inserted in

Joseph's coronation oath and the text of the Inaugural Diploma in 1687.

The neo-rex promised to observe the nobility's 'immunities, liberties,

rights, privileges and approved customs as the king and the assembled

estates will agree on the interpretation and application thereof.

The

clause was left out of Maria Theresa's coronation oath, albeit not from her

Inaugural Diploma. Art. VIII of 1741 expressly exempted, however, the

cardinal privileges of the nobility from the implication of the 'revision

clause' so that fundamental rights could not even be brought before the

diet for discussion. Basic customary rights were subject neither to revi-

sion nor even to interpretation by the diet. The decreta did not set out the

recognized rights and obligations: they presumed their existence; they

alluded to, referred to and frequently plainly borrowed their legal

authority from rights held in consuetudo. Béla Grünwald shrewdly

observed that in the eighteenth century both the king and the nobility had

vested interests against much statute-making. Statutes created duties for

someone; they restricted power.

It would, however, be a grave error to conclude from all this that rights

in Hungary were set in stone and that politics drifted towards stagnation.

The dominant role of a set of hypothetically unchangeable customary

15 Future editions of the CJH added the new decreta to the corpus without, however,

deleting those which were no longer regarded as being in force. In this sense the CJH

soon became a 'corpus clausum'. The Tripartitum was usually published together with

the decreta, and most editions contained various supplementary legal material:

Párniczky and Bátyka, op. cit., pp. 66–67."I have used the Markus or 'Millennium'

edition of Magyar törvénytár, Budapest, 1897–, without giving reference.

16 The contended passage ran: prout super eorum intellectu, et usu, regio a communi

statuum consensu diaetaliter conventum fuerit; in Art. 1 of 1687, para. 2 (the text of the

oath), the word diaetaliter was added after the coronation. See Gustav Turba, Die

Grundlagen der pragmatischen Sanktion, Vienna, 1911,1, pp. 48–63, 249–50, 258–59;

István Ereky, Jogtörténelmi és közigazgatási jogi tanulmányok, Eperjes, 1917,1, p. 184

n 2; Béla Baranyai, 'Hogyan történt az 1687/88, évi 1–4, tc. szerinti törvényszöveg

becikkelyezése', A gróf Klebelsberg Kuno Magyar Történetkutató Intézet évkönyve, (ed.

Dávid Angyal) Budapest, 1933, esp. p. 70 and n 16.

17 Béla Grünwald, A régi Magyarország, Budapest, 1910, p. 373. Indeed both sides were

primarily interested in preserving the system of free bargaining.

Lászlo Peter

rights did not lead to political immobility. On the contrary — the immutability of custom went

hand in hand with a high degree of volatility in the relationship between the two possessors of

iura: the crown, representing the royal office, and the nobility, organized in the ország. For

mixed constitutions, like the Hungarian, were unstable affairs.

Although the influence of the Enlightenment, and in particular that of Montesquieu, was

considerable among educated Hungarian nobles in the late eighteenth century,

even Art. XII

of 1790 de legislativae et execu-tivae potestatis did not change the position of statutory to

customary law.

In the renowned Art. X of 1790, Leopold II recognized (benigne agnoscere

dignita est) that Hungary is 'to be ruled and governed' by its king propriis legibus et

consuetudinibus. The immutability of basic rights was reaffirmed in Art. Ill of 1827 and in

Ferdinand's Diploma of 1830. The decisive change came in 1848 when most of the

fundamental rights of the nobility were abolished and the country's constitution was trans-

formed by the April Laws.

1. Legislation and Consuetudo

Between 1790 and 1848 a major shift occurred: the principle of legislation, that laws might

be made and unmade by the diet, acquired general acceptance. It could be argued, by

reference to Werbőczy's work, that Hungarian law now moved from the assumptions of the

main text of the Tripartitum to the declared principles of the Prologue: statute became an

independent source of law which existed alongside custom. The emergence of liberal

nationalism was the political background of this change. Legislation became the central

concern of the diet in the 1830s. Széchenyi, Kölcsey, Deak and their associates, later

Kossuth, aimed to

18 László Péter, 'Die Verfassungsentwicklung in Ungarn', in (eds) Helmut Rumpler and Peter Urbanitsch, Die

Habsburgermonarchie 1848–1918, 7, Vienna, 2000 (hereafter, 'Verfassungsentwicklung'), pp. 239–540 (p. 257).

19 Cf. László Péter, 'Montesquieu's Paradox on Freedom and Hungary's Constitutions, 1790–1990', History of

Political Thought, 16, 1995, pp. 77–104 (p. 80).

20 The import of Art. XII of 1790, a widely misunderstood law, was that those royal decrees which the Court feared

would in Hungary be deemed to be in conflict with ország rights and were enacted as patents rather than being sent to

the counties for promulgation, had no legal force; patents could not replace decreta. The executive power had to be

exercised nonnisi in sensu legum.

106 The Primacy of Consuetudo in Hungarian Law

reform Hungarian society by making statute laws.

None, however, asserted

a dogmatic statutory view of the law. Deak, for instance, repeatedly and

consistently held the view that 'our national rights' {nemzeti jussaink) were

partly based on customs and partly on written laws and that 'we have always

respected the lawful customs maintained unimpaired as laws' (törvények).

Deák did not change his view after 1848. He used customary as well as

statutory arguments in demanding that the constitutional settlement with the

monarch should be founded on the 1848 Laws rather than on the basis of the

'1847 constitution', the March Constitution of 1849 or the October Diploma.

Likewise, in the prologue to Law XLIV of 1868 Deák inferred the claim to an

'indivisible unitary Hungarian nation' from 'the basic principles of the

constitution': essentially a customary concept. The most authoritative

enactments on the constitution right up to the end of the Monarchy

maintained a two-track view of Hungary's laws. It was not lipservice paid to

the past that prompted Francis Joseph, in his coronation oath and in the

Diploma, to promise to maintain Hungary's and its associated Lands'

'exemptions, privileges, lawful customs ... and statutes'.

The continuity of Hungarian law was broken in 1849, creating uncer-

tainties for decades to come. Imperial patents, issued in 1852 and later,

introduced the Austrian Penal Code and the Civil Code. Although these

enactments unified Hungarian law and established legal equality,

their

validity became uncertain in 1860 and again in 1867 because they had been

instituted by 'octroyed' alien laws. The Lord Chief Justice Conference

21 A great achievement of Count István Széchenyi's Hitel was that it created a public opinion which

rejected the notion of immutable laws. See Béla Iványi-Grünwald (ed.), Gróf Széchenyi István

összes munkái, Budapest, 1930, pp. 422 ff

22 On 25 May 1833 in the Lower House on the religious issue, which also involved the position of

the House as regards the Upper House: Manó Kónyi, Deák Ferencz beszédei (hereafter DFB),

Budapest, 1903, I, p. 14. On occasions, Deák even suggested that the source of every right of

the nation, including the right to legislate at the diet, was the county (which provided the

deputies with instructions): on 16 June 1835 at a circularis sitting; ibid., p. 163. In 1842 Deák

(influenced by a review which had appeared in the Athenäum on his report to County Zala)

began to use the more abstract and flexible new word 'jog' instead of 'jus', DFB, I, p. 553.

Leading jurists were reluctant to accept the word 'jog': see Ferenc Eckhart, A jog- és

államtudományi kar története, 1667–1935, Budapest 1936, pp. 362–364 (Ignácz Frank's

arguments).

23 See Peter, 'Verfassungsentwicklung', pp. 301–3.

24 Law II of 1867, para 1.

25 Cf. László Péter, 'The Aristocracy, the Gentry and their Parliamentary Tradition in Nineteenth-

Century Hungary', Slavonic and East European Review, 70, 1992, p. 82 n 20.

Lászlo Péter

107

restored parts of Hungarian customary law by the composition of the

Provisional Judicial Rules in 1861,

The enactment itself had force of law

on a customary basis because the king, not yet crowned, could not lawfully

promulgate statute law. Statute law came into its own after 1867.

The

sudden increase in legislation was made possible by a procedural reform.

The decretum system, the joint promulgation of all statutes agreed at a diet,

was, on the basis of the enabling Law IV of 1848 (para. 2), abandoned after

1867. A statute was promulgated as soon as parliament and the king

concurred on its text. Politics was the crucial factor in the swell of legisla-

tion that followed. The Andrássy government, backed by a large liberal

majority in the House of Representatives (hereafter the House), had a clear

programme: the creation of a single Hungarian society of citizens out of the

disparate segments of the old order. Codification became the new canon.

Impressively large areas of law were brought under statutory control in

property, contract, commerce, credit and in industrial laws. The Penal

Code, enacted as Law V of 1878, established the twin principles of nullum

crimen sine lege and nulla poena sine lege?

Civil marriage was intro-

duced by Law XXXI of 1894. The underside of this development was,

however, that ideiglenes, provisional, became the legislator's most

frequently used qualifier. Moreover, much was left outside statutory provi-

sions, like the whole gamut of civil rights, the police, the position of civil

servants and even a part of the penal law. And this was how consuetudo in

the liberal age, after 1867, obtained a second wind. The government motu

et potestate proprio regulated by decree, rendelet, wide swathes of social

life and ministers issued orders to settle specific cases. For instance, the

Interior Ministry, in supervising associations, exercised customary rights of

the State praeter legem or, so to say, outside statute law. Also, statute law

could even widen the orbit of ministerial power. Law XL of 1879, an

adjunct of the Penal Law, authorized ministers to establish by rendelet new

offences at their discretion. This summary jurisdiction was largely admin-

istered by ministry and local officials rather than by the law courts.

Social

legislation rarely embellished the Corpus Juris Hungarici. Labour laws,

26 Károly Szladits, Az osztrák polgári törvénykönyv hatásában a magyar magánjogra,

Budapest, 1933, pp. 24–35.

27 Whereas all the decreta promulgated between 1740 and 1835 made up a single volume

of 511 pages and those between 1836 and 1868 another one of 600 pages, the Laws of

1869–71 produced a volume of 508 pages and the next one, for 1872–74, contained

390 pages.

28 These principles were weakened, however, by the passing of Law XL of 1879 on

Offences which enabled the government to institute offences by rendelet.

29 See Peter, 'Verfassungsentwicklung', pp. 370–82.

108

The Primacy of Consuetudo in Hungarian Law

laws on the press and on church-state relations were inadequate. In general,

laws lacked proper procedural rules: the customary rules of office practice

were enough. The Civil Code, on which scores of jurists and civil servants

worked for decades, went through several drafts and was discussed at

diverse conferences, but it remained a ministerial draft. Like Werbőczy's

Tripartitum, the Code was, after the turn of the century, applied by the law

courts as a customary.

This blemish was not put right even after 1918.

Amazingly, Hungary's first statutory Civil Code was passed by a toothless

Communist parliament in 1959.

In sum, customary law was flourishing in the liberal era. Together with

government rendelet-decree (which in the Hungarian system should be

regarded as the 'customary law' of the State), it retained a formidably

strong presence in the legal system. This position was recognized by

statute law which ordained in 1869 that judges in the law courts must

apply statute law, government decree and local government order (the last

two could not conflict with statute) as well as lawful custom.

2. Jurists and the Two-track View of Legal Sources

Not surprisingly, the relationship of custom to statute law preoccupied

jurists.

Did each possess the force of law to the same extent? Which one

was to give way if conflict arose? Ignacz Frank did not think that custom

could annul statute in property law, but otherwise it might, and the

presumption of the law was always on the side of custom.

Antal Cziraky

emphatically argued that the most important dispositions of public law

were based solely on tradition and that consuetudo, as it had the

30 See Károly Szladits, 'Codificatio', in Dezső Markus (ed.), Magyar Jogi Lexikon, Budapest, 6

vols, 1898–1907, (hereafter, MJL), 2, pp. 552–4.

31 It went into force on 1 May, 1960.

32 Law IV of 1869, para 19.

33 Ernő Nagy believed this problem to have been one of the thorniest for a Hungarian

jurist: Magyarorszdg közjoga, Budapest, 1891, p. 18. This might have been the reason why

in the 1870s many jurists dodged the question of whether or not custom could annul statute. There

was, however, general consent on the point that local custom could no longer stand in the

way of statute law.

34 A közigazság törványe, Buda, 1845,1, pp. 76–78 and 80. Frank's two volumes set out

Hungarian private law. Most of the other authors quoted below were jurists of

constitutional (public) law. My account ignores the earlier literature in which views

diverged. After the enactment of Art. XII of 1790 some jurists, Georch llles for instance in

the 1830s, expressly repudiated the principle that consuetudo derogat legi.

Lászlo Peter 109

'continuous tacit approval of the legislator', possessed the same legal force

as statute.

Anton von Virozsil listed among the sources of public law

consuetudo juris after decreta and the pacts between the king and the

estates, and put them above the Tripartitum and other sources. Custom, he

argued, had the same force as written law.

Emil Récsi also listed the stat-

utes first and custom second, but he made it clear that the legal authority of

the latter, as an expression of the 'national will', was complete.

The influence of German scholarship on Hungarian jurists was strong

throughout the, nineteenth century. But German influence did not pull

them in the same direction. Both the historical law school and the so-

called dogmatic method had disciples in Hungary. In the end, however,

the influence of Hugo, Savigny and Puchta proved more enduring than

Laband's. It was a short and obvious step to take from the assumption that

law was based on tacitus consensus populi to the view that law was the

expression of the Volksgeist, the nemzeti szellem?

The change was

compatible with the Hungarian outlook that recognized custom as an

independent source of law. The historic law school did not, however,

have it all its own way. In 1887 Ernő Nagy published the first edition of

his text-book on public law,

which was hailed by Gusztáv Schvarcz,

jurist and liberal politician, as the work which blew away 'the traditional

fog accumulated by history' on constitutional law.

Nagy, under the

influence of Laband, predicated Hungarian public law on the concept of

the State from which it followed that legislation had primacy over custom

which it could set aside, whereas custom could not replace parliament-

made law.

But the promoters of the dogmatic method in public law

asserted the strictly statutory view of law rather selectively,

and

35 Conspectus Juris Publici Regni Hungariae ad Annum 1848, Vienna, 1851, Tom. 1,

para. 34 (Observantia Regni).

36 Das Staats-Recht des Königreichs Ungarn, Pest, 1865, vol. I, para. 3.

37 Magyarország közjoga a mint 1848–ig s 1848–ban fenállott, Buda-Pest, 1861, pp. 6,

15–19.

38 Ibid., p. 125. Récsi gets close to saying that the Volksgeist lends legal force to statute.

39 Magyarország közjoga, Államjog, Budapest, 1887.

40 'Tanulmány a magyar államjogi irodalom ujabb termékeiről', Magyar Igazségügy,

1888, p. 34. Schvarcz also praised the book in the House. See Csekey, Nagy Ernő, p.

169, n 2.

41 Ernő Nagy, Közjog, 1891, pp. 18–19. In later editions Nagy somewhat softened his

strictly statutory view. See, op. cit., 1907 edition, pp. 27–28.

42 The statutory view was applied to the reserved rights of the crown, the interpretation of

the 1867 Settlement and the relationship of Croatia to Hungary, as defined in Law

XXX of 1868. It was not applied to ország rights.

110 The Primacy of Consuetudo in Hungarian Law

they shied away from theoretical arguments. The Civilians, however,

demanding codification, boldly attacked Savigny and Puchta's historical

method. Rezső Dell' Adami and particularly Gusztáv Szászy-Schwarz,

'the Hungarian Jhering', advanced general arguments against the Volks-

geist, that 'miraculous something made by nobody'. Bódog Somló's crit-

ical examination of the concept of customary law was probably the best,

and Géza Kiss's was the most comprehensive.

Kiss argued that statute

was the single source of law and that 'customary law' was an empty

fiction.

The believers in the historical method and the customary law

followed the Gestaltungstheorie willy-nilly.

Like Laband, Kiss scoffed

at the idea that custom could conceivably annul statute law.

Nevertheless, the promoters of the dogmatic method did not break the

dominance of the traditional view of customary law.

The doyen of

Hungarian legal history in the last years of the Monarchy, József Illés, a

firm adherent of the two-track view of Hungarian law, concluded that

custom could, as it had in the past, annul statute law and that the jury was

still out on the question of the exact relationship between the two sources

of law.

And so argued Béni Grosschmid, the most influential Civilian of

the period.

The six-volume Hungarian Legal Encyclopedia also took the

traditional view on customary law.

Before 1918 the adherents of the two-track view of legal sources were

on the defensive. After the restoration of the monarchic constitution in

1920 they occupied the moral high ground. Jurists now generally

endorsed the view, forcefully argued for instance by Zóltan Kérészy, that

43 Uj irányok a magánjogban, Budapest, 1911.

44 A szokásjog, Kolozsvár, 1914.

45 A jogalkalmazás módszeréről, Budapest 1909.

46 Ibid., pp. 115,207.

47 Ibid., pp. 105 f. The theory holds that customary law is rooted in the implied

permission of statute law. While the Gestaltungstheorie is too contrived to explain

Hungarian law, the postulate of the traditional view that legal rules exist which may or

may not be in conflict with statute law, and which, because they have acquired general

consent, the judge is merely to apply, brings the argument dangerously close to Humpty

Dumpty's claim about the use of words.

48 Ibid., pp. 219–20, 224–27; the question, he insisted, was in fact that of interpretation of

statute law.

49 Géza Kiss recognized this in 1916, 'A desuetudo tanához', in Jogi dolgozatok, ed.

Jogtudományi Közlöny, Budapest, 1916, pp. 368, 373.

50 József Illés, Bevezetés a magyar jog történetébe, Budapest, 1910, pp. 50–1; repeated in

the 2

edition, 1930, pp. 108–9.

51 Grosschmid, op. cit., pp. 398 ff.

52 Béla Ladányi, 'Szokásjog', in MJL, 6, pp. 438–44.

László Peter

111

lawful custom could destroy statute law.

The 1920 constitutional

provizórium was a response to an intractable legal problem which, inad-

vertently, enlarged the scope of customary law arguments. Legal continuity,

ruptured in 1918, could not be restored in 1920, not because of the interruption

of the short-lived Károlyi and Kun regimes, but because legality could only be

restored by an act based on the concurring will of king and parliament.

The

king was not available in 1920, a case of vis major. Rump Hungary had to

make do with a rump constitution based on a single actor: the assembled

representatives of the nation, hence the label, provizórium. Jurists, particularly

Kalman Molnar, thought that the 'temporary constitution' was legitimate by

resorting to customary legal arguments.

Even in a post mortem of Hungary's

historical constitution, written in 1945, Molnar introduced his lament with the

famous passage from Julian, 'the great Roman jurist', who had established the

principle that unwritten law, as much as written law derived its authority from

the consent (tacit or express) of the people.

When the curtain fell on

Hungary's historic constitution, the jurist arrived back after four hundred years

where Werbőczy had started.

53 Zoltán Kérészy, A jogszokás derogatorius erejének kérdése a magyar jogi irodalomban,

Szeged, 1935. He emphatically denied, however, that state officials could institute

lawful custom contrary to statute law, pp. 27–28. Conceivably, the dissolution of the

Habsburg Monarchy and the Hungarian-Croat Nagodba in 1918 weakened the case for

the strictly statutory view of constitutional law. see note 42 above.

54 Deák and Csemegi's view on legal continuity, by reference to Art. XII of 1790, made

possible the restoration of the legal order in 1867 by king and parliament acting

together after 19 years of interruption.

55 Alkotmányos jogrendünk és a közjogi provizórium. Pécs, 1926, reprinted in his Magyar

közjog, Pécs, 1929, pp. 720–43. The gist of Molnár's thesis was that, as the authorities

were habitually obeyed by the population, the legal order had acquired the 'tacit consent'

of the nation. Molnár's views, shared by many, were criticized by others (e.g. József

Bölöny, Ideiglenes államjogi berendezésünk jogalapja, Budapest, 1938, pp. 26–40). But

even the detractors of Molnár's view on legitimacy believed in the derogative power of

lawful custom: József Bölöny, Magyar közjog, Budapest, 1942, I, pp. 65–69; also see

Gyula Vargyai, A legitimisták és szabad királyválasztok közjogi vitájáról az

ellenforradalmi államban, Budapest, 1964, pp. 32–40.

56 A két világháború közötti provizórium közjogi mérlege. Pécs, 1945, p. 6; cf. Digests, 1.

3.32 (in older editions 1.3.31).

Contributors

János M. Bak Professor of Medieval History, Department of

Medieval Studies, Central European University,

Budapest

Katalin Gönczi Postdoctoral Research Scholar at the University of

Frankfurt/M

Zsolt Hunyadi Lecturer in the Department of Medieval and Early

Modem History, University of Szeged

David Ibbetson Regius Professor of Civil Law at the University of

Cambridge

Damir Karbić Senior Research Fellow, Institute of History,

Croatian Academy of Sciences and Arts, Zagreb

László Péter Professor Emeritus of Hungarian History at the

School of Slavonic and East European Studies,

University College London

Martyn Rady Reader in Central European History at the School

of Slavonic and East European Studies, University

College London

Nataša Štefanec

Professor of Medieval History, Department of

Medieval Studies, Central European Univer-

sity, Budapest

Postdoctoral Research Scholar at the Univer-

sity of Frankfurt/M

Lecturer in the Department of Medieval and

Early Modem History, University of Szeged

Regius Professor of Civil Law at the Univer-

sity of Cambridge

Senior Research Fellow, Institute of History,

Croatian Academy of Sciences and Arts,

Zagreb

Professor Emeritus of Hungarian History at

the School of Slavonic and East European

Studies, University College London

Reader in Central European History at the

School of Slavonic and East European Studies,

University College London

Research Fellow, Institute of Croatian History,

Faculty of Philosophy, Zagreb

113

Select Index

Academy of Sciences 92, 94, 95

admonitio (ammonitio) see notice

bailiff 7,10,29,33,59–62,67

Bánffy, Miklós 74, 81 Bartolus

5,16,17–19, 20, 22, 23,

101 Batthyány, Boldizsár 78–

9 Bónis, György 1–3,6, 98,102

brevis 58,67

Bučić, Mihajlo 72–4, 80, 81

Candlemas 15

canon law 13,15,18,26,43,49,55,

65, 89,102

capital sentence 64—5

cartula sigillata 27

chancellery 28, 30, 34, 45

codification 106–8

consuetudo see custom

Corpus Juris Hungarici 6, 94–6,

103,104, 107

counties 10,11,62,106

court lists 57, 61

court reports 50–1

court structure 53–4, 58, 64, 66, 103

Croatia 5, 9, 21, 23, 37–45, 47,

71–85

custom 6–9, 11, 13–23, 33, 37–5,

48–52, 77, 78, 94, 101–11

Dalmatia 23,38–45

Deák, Ferenc 105–6

decreta see statute law

diet 2–6, 88, 91, 92, 103–7

Drašković, Juraj 72, 73, 79, 82, 83

DRMH 1–3

Eckhart, Ferenc 1,29,35

Erasmus 83

evocatio see summons

exceptiones 61—3

familiaritas,familiares 10,77

fassio 7,32

Fejér, György 91, 92

female inheritance 7, 9–11, 31, 44

formularies 6, 8, 9, 54, 57, 62, 63

Gaius 14,23

Gestaltungstheorie 110

Golden Bulls 2, 29,97

Grosschmid, Béni 97,102,110

Hofhalter, Rudolf 72–76, 78, 80

Holy Crown 96,97

Humpty Dumpty 110

inquest, inquisitio 33, 34, 59–60, 62,

63,67

insinuatio 58, 60

institution (statutid) 7, 33, 60, 67

ius 18–21,94,102,103,105

ius commune 15,21,23,43

judges 5, 9, 22, 34, 50, 52–4, 61–9,

102,108,110

Julian, Roman jurist 111

Kitonich (Kitonič) 5,51,58,66,102

Klageschrift see libellus

Kossuth, Lajos 105

Kovachich, M.G. and J.N. 90, 95

larva 52

Leopold II 91, 105

lex 8,15–17, 19–21, 105

libellus 56–7, 60

Libri Feudorum 17

Ljubljana 72, 79

115

116 Select Index

loca credibilia see places of

authentication

Magna Carta 97

Manlius, Johannes 72, 79, 81,83

Maria Theresa 88, 90, 104

Montesquieu 105

Nagyvárad 73, 75

Nedelišće 72–5, 78, 80, 81

Nin 38, 39,

nobility 6, 10, 11, 44, 49, 88, 93

nota infidelitatis 68

notice (admonitio) 59, 60

Novigrad 38, 40, 42

novum 66

oath-taking 62–3, 67

octaves 57, 58, 61

ordeal 29

ordines judiciariae 53

Ozalj 80

Padua 77

Pergošić, Ivan 5, 71–85

places of authentication 8, 25–33,

52, 59, 60

Poljica 38, 40–2, 45

praediales 82

Pragmatic Sanction 88, 91, 103

Praxis Criminalis 89

pristaldus 29

privileges 22, 25–35, 51, 64, 93

procedural law 35, 47–70

prohibitio 59,66

protonotaries 56, 67

public notaries 25–6, 31

Quadripartitum 55, 56, 59

reambulatio 33

remedies in law 55

rendelet 107–8

reoccupatio 68

repulsio 7, 66, 68

revocatio 67

Roman Law 5, 7, 13–15, 43, 49,

55, 89, 102, 111

St German, Christopher 23

Sárvár 7, 79

Schöffen 15,50

seals 25–31, 33, 51,5 2, 62, 64

signaturae 55

Slavonia 21, 23, 47, 71–85

Smith, Adam 93

statute law (decreta) 3, 4, 8, 9,

11, 15, 17, 19, 20–22, 48–51, 87,

101–11

summons 55–61

Szalay, László 95

Széchenyi, István 93, 94, 105, 106

tacit consent 17–19, 22, 102, 103,

109, 111

transcripts 32,51–2,62

Transylvania 5, 21, 23, 47, 81, 91,

trespass 34

trials 44–5, 61–5

Tripartitum 4–11, 14, 41, 47,

71–85, 87, 89, 91–9, 101, 102,

108; Prologue 6, 7, 16–23, 47,

48, 101, 102; Part One 5, 7–8,

20, 23, 47–8; Part Two 5, 8, 21,

23, 47–70; Part Three 3, 5, 8, 21,

23, 47, 66; editions 4, 71–85,

92–9, 101–2

Ungnad, Ivan 71,72,79

universities 90, 92, 95; Hungarian

University 88,90,92; University

of Kolozsvár (Cluj) 97–98

Varaždin 72, 73,75, 79–85

Venice 39–43

Veres, Balázs 5, 75, 76, 78

Vinodol 38,41,42,77,78

Vlachs 40,77

Vorosmarty, Mihaly 95

Vramec, Antun 72, 79, 82, 83

Vrana 38–40,42

Werbőczy, Stephen 4,6,8–10,

14–23, 43, 68–9,91–9,101; see

also Tripartitum

wills 33

Zadar 38–40, 42

Zagreb 40,77

Zrinski (Zrinyi), Juraj 73–81,85