The Rise and Fall of Clerical Advocates in Early Thirteenth-Century Sweden?

The history of premodern advocacy in Sweden and Finland begins in the seventeenth century with the establishing of the first royal appellate court in Stockholm, the Svea Court of Appeal, in 1614. The following year, King Gustav II Adolf (r. 1611–1632) regulated the procedure in the new court authorizing the use of procurators and advocates. The king explained that this was necessary so that people, who had the law on their side, would not lose their cases because of their ungrounded and ill-considered (ogrundade och obetänckte) management. Both parties were allowed the use of advocates to better ensure that justice be done.[1] After this, in the course of the seventeenth century, we start to find advocates and procurators both at the other recently established appellate courts as well as the courts in the major towns of the country. Later, we find them similarly in the countryside.[2]

Could things have gone otherwise? Could a proto-professional group of advocates or attorneys have appeared already in medieval Sweden? In Central and Southern Europe, proctors and advocates began to emerge in the High and Late Middle Ages first in important ecclesiastical courts through early professionalization processes and later also in central secular courts such as the royal tribunals of Westminster.[3]

A Priest Holding a Chalice for a Cleric, text and illumination about 1290-1310

In twelfth- and thirteenth-century Sweden, the Catholic Church was mainly establishing its administration. Few contemporary sources shed light on Swedish prelates, their background or education before the mid-thirteenth century. Then, scions of local magnates profited increasingly from the possibility to acquire new learning in Latin both locally and in European intellectual centres as had happened in neighbouring Denmark and Norway in the twelfth century. This also influenced the law – both canon and secular.[4] In Sweden, too, Christian theology and canon law started to alter practices and law during this period even if we have relatively few Swedish sources before the mid-thirteenth century apart from papal letters addressed to Swedish recipients.

One such letter, issued by Pope Gregory IX (r. 1227–1241) to Steinar, Bishop of Skara (ep. 1228–1238) in 1234, leads us to believe that certain Swedish clerics were involved in advocacy. Gregory wrote that he had heard that certain priests and clerics of the diocese, forsaking the things pertaining to God, had got enmeshed with worldly business. According to the Pope, it had caused grave scandal that they were involved in advocacy for laymen in both civil and criminal cases in secular courts. The Pope observed that such insolent clerics were acting against canon law as “soldiers of God” were not to meddle in worldly affairs. Bishop Steinar was to punish them by ecclesiastical censure if they continued their presumptuous practices.[5] Pope Gregory also quoted a passage, “nemo militans Deo” from canon 12 of the Third Lateran Council of 1179 that forbade clerics, who were maintained by the Church, from acting as advocates before a secular judge. In accordance with the canon, he observed that the only exceptions were if the cleric acted in his own or his own church’s cause, or alternatively acted for miserabiles personae, meaning paupers, orphans, widows and such vulnerable groups.[6]

A judge and an Attorney with Three Men, about 1290-1310

How extensively had the canons of the 1179 Lateran Council spread in Scandinavia and to what extent were they known there? As Danica Summerlin has observed, no copies of the canons have survived until our days in Scandinavia even if a glossed manuscript fragment that may have been in late twelfth-century Norway refers to the canons in the glosses.[7] The list of archbishops and bishops attending the Council with its ca. 300 attendees is defect and incomplete. Therefore, we do not know whether any Scandinavian bishops were among the attendees of the Council.[8] Gregory’s letter, basing its authority on the canon of the 1179 Lateran Council, appeared in 1234, the same year when the decretals of the Liber Extra forbade in no uncertain terms clerics from occupying themselves with secular activities.[9]

So, apparently Swedish clerics were pursuing advocacy for a while in secular courts in various types of cases in the early thirteenth century in the diocese of Skara. Does this signify, then, that a (learned) group of proto-professional attorneys could have surfaced outside the ecclesiastical hierarchy in medieval Sweden? This is unlikely. Had there been a demand for a group of such specialists, it would have existed. The population of Sweden was small and even the biggest towns had only some thousand inhabitants. The Swedish lay-dominated court system with its relatively simple procedural norms, rather clear-cut jurisdictional boundaries and vernacular law did not require legal specialists to pilot court cases to a successful end. There were no central royal courts burgeoning with cases from all over Sweden, either. The local Swedish law courts in the countryside with peasant jurors and ordinary people as litigants could not have provided inspiring career opportunities to men of law. Instead, in many other parts of Europe, they pursued their vocation, the scientia lucrativa, where big money was made. Only after Sweden had its first permanent royal appellate court in the early seventeenth century did Stockholm provide enough legal business for attorneys. The advocate entered the Swedish stage again – never to leave it this time.     

Pieter Brueghel the Younger’s (1564-1638) painting most probably depicts a village lawyer’s office.

Mia Korpiola

Professor of Legal History, University of Turku

Acknowledgements:

This blog article has been written as part of the research project “Social Governance Through Legislation” (directors: Erik Opsahl and Jørn Øyrehagen Sunde) at the Centre for Advanced Study (CAS) at The Norwegian Academy of Science and Letters. I would like to extend my warmest thanks to the project’s directors and researchers for inspiring and convivial discussions as well as the friendly staff.

Images courtesy of The J. Paul Getty Museum:

Bute Master (Franco-Flemish, active about 1260–1290)
Initial C: A Priest Holding a Chalice for a Cleric, text and illumination about 1285, Tempera colors, gold, and iron gall ink
Leaf: 17 × 11.9 cm (6 11/16 × 4 11/16 in.), Ms. 46 (92.MK.92), fol. 167v
The J. Paul Getty Museum, Los Angeles, Ms. 46, fol. 167v

Unknown
Initial Q: A Judge and an Attorney with Three Men, about 1290–1310, Tempera colors, gold leaf, and ink
Leaf: 36.5 × 24 cm (14 3/8 × 9 7/16 in.), Ms. Ludwig XIV 6 (83.MQ.165), fol. 36
The J. Paul Getty Museum, Los Angeles, Ms. Ludwig XIV 6, fol. 36


[1] 15, Rättegångs-Process (1615), Joh. Schmedeman (ed.), Kongl. Stadgar, Förordningar och Resolutioner Ifrån Åhr 1528 in til 1701 Angående Justitiæ Executions-Ährenden. Stockholm: Johann Henrich Werner, 1706, p. 152

[2] E.g. Sture Petrén, “Våra första advokater,” Svensk Juristtidning 32 (1947), pp. 1–25; Pia Letto-Vanamo, Suomalaisen asianajajalaitoksen synty ja varhaiskehitys: Oikeushistoriallinen tutkimus. Suomalaisen Lakimiesyhdistyksen julkaisuja, Series A, 181. Helsinki: SLY, 1989.

[3] E.g. James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts. Chicago: University of Chicago Press, 2008; Paul A. Brand, “The Origins of the English Legal Profession,” Law and History Review, 5:1 (1987), pp. 31–50; Gérard D. Guyon, “L’avocat dans la procedure des anciennes coutumes médiévales bordelaises,” Cuadernos de historia del derecho, 14 (2007), pp. 7–26.

[4] For Denmark and Norway, see e.g., Per Andersen and Helle Vogt, “Legal Reform Around 1200 in Denmark: Archbishop Absalon (1128–1201) and Anders Sunesen (d. 1228),” Law and the Christian Tradition in Scandinavia: The Writings of Great Nordic Jurists, eds. Kjell Å. Modéer and Helle Vogt. Routledge, London and New York, pp.18–33; Mia Münster-Swendsen, “Banking on – and with the Victorines: The Strange Case of Archbishop Eskil’s Lost Deposit,” pp. 91–109 and Bertil Nilsson, “The Church Law of Scania on the Consecration of Churches and the Appointment of Parish Priests: International Canon Law and that of Scania,” pp. 157–182 both in Denmark and Europe in the Middle Ages, c. 1000–1525: Essays in Honour of Professor Michael H. Gelting, eds. Kerstin Hundahl, Lars Kjær and Niels Lund. Farnham: Ashgate, 2014; Stéphane Coviaux, “Les évêques norvégiens et les idées politiques d’Occident au XIIe siècle,” Médiévales – Langue, Textes, Histoire 50 (2006), pp. 1–17, https://journals.openedition.org/medievales/1329 (accessed 27 January 2022).

[5] Register of Diplomatarium Suecanum, SDHK, no. 500 (accessed 23 January 2022): “Gregorius Episcopus Servus Servorum Dei Venerabili Fratri …. Episcopo Scarensi Salutem &c. Audivimus et audientes non possumus non dolere, quod nonnulli Sacerdotes et Clerici tue Diocesis relictis hiis, que ad Deum pertinent se negotiis secularibus immiscentes in foro seculari laicis advocati patrocinium in causis tam criminalibus, quam civilibus passim prestare presumunt contra canonicas sanctiones, propter quod grave in populo scandalum generatur. Cum igitur nemo militans Deo se debeat secularibus negotiis immiscere, nolentes hujusmodi Sacerdotum et Clericorum insolentiam equanimiter supportare, mandamus quatenus si est ita, ipsos nisi propriam, vel Ecclesie sue causam, aut miserabilium personarum fuerint prosecuti, ut a tali presumptione desistant, monitione premissa per censuram ecclesiasticam appellatione remota compellas. Datum Laterani VIII. Idus Februarij, Pontificatus nostri Anno Septimo.” https://sok.riksarkivet.se/sdhk?EndastDigitaliserat=false&TrycktUtgava=true&TrycktRegest=true&Texten=miserabil*+person*&Brevtext=true&Extratext=true&Sigill=true&Original=true&MedeltidaAvskrifter=true&MedeltidaRegest=true&EftermedeltidaAvskrifter=true&EftermedeltidaRegest=true&AvanceradSok=False&page=2&postid=sdhk_500&tab=post#tab

[6] Canon 12 of the Third Lateran Council (1179): “Clerici in subdiaconatu et supra, et in minoribus quoque ordinibus, si stipendiis ecclesiasticis sustentantur, coram seculari iudice advocati in negotiis secularibus fieri non praesumant, nisi propriam vel ecclesiae suae causam fuerint prosecuti aut pro miserabilibus forte personis, quae proprias causas administrare non possunt. Sed nec procurationes villarum aut iurisdictiones etiam saeculares sub aliquibus principibus et saecularibus viris, ut iustitiarii eorum fiant, clericorum quisquam exercere praesumat. Si quis autem contra hoc venire temptaverit, quia contra doctrinam Apostoli dicentis, Nemo militans Deo implicat se negotiis saecularibus, saeculariter agit, ab ecclesiastico fiat ministerio alienus, pro eo quod, officio clericali neglecto, fluctibus saeculi, ut potentibus placeat, se immergit. Districtius autem decernimus puniendum, si religiosorum quisquam aliquid praedictorum ausus fuerit attemptare.” (accessed 24 January 2022) https://web.archive.org/web/20131006143907/http://faculty.cua.edu/pennington/Medieval%20Papacy/Lateran%20III%20Complete.pdf .

[7] Danica Summerlin, The Canons of the Third Lateran Council of 1179: Their Origins and Reception. Cambridge: Cambridge University Press, 2019, pp. 139–140.

[8] Summerlin, The Canons, pp. 14, 135–136, 140.

[9] X 3.50.1–10.

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