A Cultural History of Law in the Early Modern Age

Peter Goodrich, Peter Goodrich

• Publisher: Bloomsbury Academic
• Year: 2021
• ISBN:
  9781350079304
• Edition: 1
• Topic: History
• Subtopic: Social History
• Index: History

Opened up by the revival of Classical thought but riven by the violence of the Reformation and Counter Reformation, the terrain of Early Modern law was constantly shifting. The age of expansion saw unparalleled degrees of internal and external exploration and colonization, accompanied by the advance of science and the growing power of knowledge. A Cultural History of Law in the Early Modern Age, covering the period from 1500 to 1680, explores the war of jurisdictions and the slow and contested emergence of national legal traditions in continental Europe and in Britannia. Most particularly, the chapters examine the European quality of the Western legal traditions and seek to link the political project of Anglican common law, the mos britannicus, to its classical European language and context. Drawing upon a wealth of textual and visual sources, A Cultural History of Law in the Early Modern Age presents essays that examine key cultural case studies of the period on the themes of justice, constitution, codes, agreements, arguments, property and possession, wrongs, and the legal profession.

CHAPTER ONE

Justice

VALÉRIE HAYAERT

This chapter¹ aims to discuss the early modern rather diverse concepts and representations of Justice and their relations to practices and processes of trial and punishment. Artworks, paintings, sculptures, broadsheet prints, drawings, and artifacts played an active role in people’s experience and the practice of right and wrong. Portrayals of Lady Justitia, exempla virtutis and other myths rendered the abstract notions of “law” and “justice” concrete and tangible. City authorities had the greatest painters of their time make prestigious and ambitious scenes of justice to decorate town halls, where justice was administered. Diverse examples derived from antiquity, the Bible or history were exhibited so as to stimulate judges and Aldermen to be fair in the performance of their legal responsibilities.

THE JUDGE’S DAMNATION

It is because of their narrative and didactic nature and their judicial content that pictures of justice are distinct from allegorical and symbolic representations of law and justice: they are often murals, spread out expansively on walls, and are explicitly addressed to judges exercising their office.

Since the end of the fifteenth century, one of the main themes depicted in European courtrooms is the judge’s damnation. A strange cohort of the feebleness and failures of justice is represented on the walls of the courthouses: these artworks are all organized around the theme of the responsibility of judges, the dangers and pitfalls of their function and the fragility of human justice. Art is aimed at encouraging the viewer to act justly: it is used as an exemplum justitiæ to remind the judge of the duties inherent in the act of judging and the responsibility that the human trial owes towards divine justice. The most common scene adopted by judicial magistrates is the Last Judgement. At times, the biblical scene is accompanied by an admonition, addressed to the judges: in 1525, Jan Provoost painted a representation of the Last Judgment for the Bruges town magistrate, with this Latin motto: “Videte quid faciatis non enim hominis exercetis judicium sed Domini” (2 Chronicles 19.6: Take heed of what you do: for your works are not for the judgment of man, but for that of the Lord). In the Last Judgment painted by Frans Sanders in 1526 for the Great Council of Malines, an archangel is holding a phylacter “iudicium time” (fear judgment) and a devil stands in the lower part, threatening the members of the council, who are reflected in a convex mirror, with a lightning bolt. These paintings are explicitly addressed to the presiding judges, to remind them of the gravity of their role.

Aside from this classical, judicial example, other narrative scenes were painted in the courthouses, and some are typical from the early modern period. The Judgment of Cambyses,² representative of many secular justice scenes, recalls the extraordinary character of the punishments inflicted by the Persian King Cambyses (c. 530–522 BC), according to Herodotus (Historiae, V, 25):

Otanes’s father Sisammes had been one of the royal judges; Cambyses had cut his throat and flayed all his skin because he had been bribed to give an unjust judgment; and he had then cut leather strips of the skin which had been torn away and covered therewith the seat on which Sisammes had sat to give judgment; which having done, Cambyses appointed the son of this slain and flayed Sisammes to be judge in his place, admonishing him to remember what was the judgement seat whereon he sat.

The story was later popularized by Valerius Maximus (Facta et dicta memorabilia, VI, 3). By appointing Otanes, the son of Sisammes, to his father’s office, Cambyses admonished him in a particularly gruesome way, to remember on which seat he sat and to judge justly. The version painted by Gerard David (1498), held today by the Bruges Groeningemuseum, is probably the most famous and memorable example of this myth. Gerard David distributed the episodes of this story over two panels: the left panel shows the corrupt judge being arrested, with the bribery scene visible in the background, whereas the right panel is dominated by the scene of his being flayed. The background of the latter panel depicts Otanes administering justice, seated upon the skin stripped from his father. The exemplum of the Judgment of Cambyses was then a widespread source to warn as to the proper conduct of Aldermen in their administration of justice. Lawbooks of the time used this exemplum extensively.³ Similar representations of the Judgement of Cambyses turn up in prints in the first half of the sixteenth century as well as in illustrations in legal manuals. The first page of the preface to the German edition of Josse de Damhoudere’s Praxis rerum criminalium (Frankfurt, 1575) was, for instance, decorated with an image of the new judge Otanes seated beneath his father’s skin. Under the print, the table of contents lists all the reasons why punishments must be meted out. Otanes, cruelly warned by his father’s fate, is bound to dispense the purest form of justice to succeed in his arduous task. The gruesome throne by itself, without any protagonists, becomes an emblem later in Juan de Horozco’s Emblemas morales.⁴ The iconic judge’s seat, with its covering of flayed skin, serves as the purest abstraction of the exemplum.

In 1542, Dirck Vellert designed the story of Cambyses for a painted glass roundel (diameter 29.4 centimeters) (Figure 1.1) which shows the slaying of Sisammes in the foreground and the judicial throne of Otanes in the background, where the skin of the corrupted judge has been nailed as in a crucifixion onto the upper part of his son’s seat. Cambyses appears twice, pointing at the two cruel scenes with his fingers. The roundel also shows Sisammes being flayed in the foreground under the watchful eye of Cambyses. The explicit depiction of the butchery is significant, as in Gerard David’s painting.

FIGURE 1.1 The Judgement of Cambyses, Dirck Vellert, 1542, glass roundel, d. 29.4 cm. Source: Courtesy of Rijksmuseum, Amsterdam.

Another parallel story used as an exemplum justitiæ is the blinding of Zaleucus of Locria. The lawgiver (nomothete) Zaleucus had decreed that anyone caught committing adultery would be blinded: when his own son was caught, the father chose to have one of his own eyes gouged out so that he could share the punishment with his son, and he would not be left totally blind. As Zaleucus was famous for his insistence upon equal application of the law, he chose to sacrifice his own sight to uphold the law: he himself had created a law to punish all adulterers by the gouging out of both their eyes. When his own son was caught in the act of adultery, he was faced with the dilemma of either exempting his son from the legal rule or enforcing the law he had created by blinding his own son. By having one eye removed from his son and one of his own eyes removed, he found a practical way between the two orders he wanted to preserve: the extreme rigor of the law and his attachment to the bonds of kin. This exemplum is given as a model of epieikeia (equity), a way of humanizing the extreme rigor of the law. The story of Zaleucus, helped by its memorable gruesomeness, provided a lively topic to reflect on the art of moderating extremes, as conceptualized by Aristotle in the fifth book of the Nicomachean Ethics. The stories depicted deal mainly with the moral attributes demanded by legal office; however, these moral exempla are often multi-layered and can be interpreted in various ways: Zaleucus’ narrative gives way to a reflection about the extreme rigor of law and his choice of substituting one of his own eyes for that of his son is a regular topic for discussion among lawyers. The figure of the clemency of the lawgiver is constituent of a greater conceptual debate about humane law. Jus civile is imperfect, changeable, and temporal; it bears the man-made flaws of its counterpart, the divine, natural law. These narratives directly refer to the practical insight required in applying principles to particular situations.

Another similar example is the theme of Plutarch’s Theban judges without hands. According to Plutarch,⁵ “statues of judges erected at Thebes had no hands; and the chief of them had also his eyes closed up, hereby signifying that among them justice was not to be solicited with either bribery or address.” Andrea Alciato gave a visual representation of this motif in his emblem “In senatum boni Principis” (The good prince in his council).⁶ In Geneva’s town hall (chamber of the Conseil d’État, Baudet tower), where the town councilors judged both civil and criminal cases, the same motif has been given a spectacular expression. The fresco, dated 1604, “Les juges aux mains coupées” is attributed to Cesare Giglio, a Vincenzan artist, and was commissioned by the councilors themselves. The image of a maimed justice wished to stress the evil of injustice, embodied here by partiality and bribery. Cesare Giglio did not represent statues without hands, instead, he depicted the judges themselves being maimed: the act of severing hands is depicted on the bodies of the judges and not in abstract sculptures. The motif of the missing hand is a time-honored juristic symbol: the French magistrate Étienne Pasquier (1529–1615) wrote a whole set of poems (nearly 100) about hands during the Grands Jours at Troyes in 1583. The poetic works collected under the title “ La Main “start with his own portrait, by Jean de Hoey, who chose not to represent his hands.⁷ Pasquier started commenting on this with a first distich “Nulla hic Paschasio manus est, lex Cincia quippe Caussidicos nullas sanxit habere manus.” (Pasquier here is without hands, because the Lex Cincia ordered that lawyers should not have any.) According to Roman law, lawyers were forbidden to accept bribes or fees apart from the previously agreed sum. Two epigrams by his friend the lawyer Antoine Loisel relate Pasquier’s portrait to the “true effigy of a judge,” the one designed for Theban judges and adapted to the French lawyer.⁸ In his emblem “Custodiunt, non carpunt”⁹ (they guard without gathering), Saavedra Fajardo reinterprets the motif of the Theban judges, but the horrific scene of the maimed hands painted by Giglio has been replaced by the innocent figure of garden statues: two terminal figures with a human head, continuing as a rectangular pillar-like form, have replaced the gruesome depiction of the thirteen stumps of arms visible in Geneva’s town hall.

Until the seventeenth century, the desire to expose a judge’s failures was a regular obsession. The exempla justitiæ were shown in town halls so that the judges could explicitly see their own fate were they to err. In the painted decorations of courthouses, in the punishments inflicted on prevaricators, in the “amendes honorables” imposed on the authors of iniquitous judgments, justice has to designate herself as guilty. By exposing its failures and faults, justice shows its essential fragility and its capacity to punish and denounce the judges. Judicial fallibility became a major visual motif in the early modern period.

LADY JUSTICE: THE INVENTIVENESS OF EARLY MODERN ALLEGORIES

Justice iconography has now considerably been reduced to the form of a hefty female figure, holding scales, a sword, and occasionally wearing a blindfold. Early Modern inventions were much more diverse and inventive, and sometimes more provocative than complacent. Theodor de Bry produced an astonishing portrait of Justitia: she is in motion, sitting facing backwards on a horse, tumbling off her recalcitrant mount, she flips over and falls, clinging in vain to her sword and disequilibrated scales, head upside down, mouth open and legs flailing¹⁰ (Figure 1.2). The epigram accompanying the engraving stresses that the world is to be compared to an untamed and unbridled horse, hating and tossing off Law and Justice. Switching the usual perspective, this political emblem depicts justice’s languor and reverses completely the conventional hieratic stability of the allegorical body of Justitia. Her body is engaged in a fierce struggle: early moden artists had developed a brilliant anatomical rhetoric to express the revelation of the body as an essence in such a conflict.

FIGURE 1.2 Johann Theodor de Bry, Dirck Volckertsz Coornhert and Maarten van Hermskerck, Emblemata sæcularia varietate seculi huius mores ita experimentia, 1611, engraving, h 94 mmm x w 105 mm. Source: Courtesy of Rijksmuseum, Amsterdam.

THE SCALES OF JUSTICE

The concept of equity is one of the paradoxical ideals which is regularly depicted by emblematic images or symbolic creations. Already applied in late antiquity by Latin Church Fathers to describe the Christian ideal of justice, æquitas includes not only a measure of equality and proportionality derived from the Aristotelian tradition, but also charity and indulgence in special cases. Equity, as a concept, is the creative element for the development of law. A famous passage from the Sententiæ by Isidore of Seville, included later in Gratian’s Decretum (Dist. 45, c.10), reads: “Everybody judging righteously has to keep a pair of scales in his hand to give the same weight to justice and commiseration: but by justice he pronounces the sentence for transgressions, by mercy he moderates the penalty, so that something is corrected by equity according to the right standard, but something is forborne with commiseration”¹¹ The title page of Christian Haunold’s Controversiarum...

Table of contents

• Cover
• Halftitle Page
• Title Page
• Contents 
• List of Figures
• Notes on Contributors
• Series Preface
• Introduction: The Great Dialogue
• 1. Justice
• 2. Constitutions
• 3. Codes: Redressing London—Sumptuary Laws and the Control of Clothing in the Early Modern City
• 4. Agreements
• 5. Arguments: The Visual Mediation of Arguments in the Renaissance
• 6. Property and Possession
• 7. Wrongs
• 8. The Legal Profession: Tudor Lawyers in an Age of Litigation
• Notes
• Bibliography
• Index
• Imprint