The Judge in the Seventeenth century: a royal official between legislation, doctrine and case law: the Sicilian case

Like all the others territorial-political systems in Europe, even Siciliy is characterized by the presence of royal Courts of Appeal, institutions that a consolidated – even if outdated – legal-historical tradition brought together under the generic name of “Grandi Corti” (Great Courts) or “Tribunali Supremi “ (Supreme Courts). It is known that the definition of “Grande Tribunale” can be related to the Suprem Court of every state-organization of the Modern Age; a high court composed only by the choicest jurists, personally appointed by the sovereign, with exclusive competence on a number of subjects (above all crimen lesae maiestatis) and competence of appeal on any sentence emitted by lower tribunals. In the past decades, the studies on the “Grandi Tribunali” had a significant development, even though characterized by sporadic occurrence; in addition, it's to point out that, at least by historians of Law, it has been paid more attention to the production of case law – in particular the collections of decisiones – than to the procedural documentation. Therefore, being so relevant the analysis of these structures, wich stood at the top of the administrative and jurisdictional organization of early modern kingdoms, equally valuable is the study of the officiales, i.e. the judges who formed the courts. These figures, in fact, constituted a powerful and often cohesive class, the so-called togati, which greatly influenced the institutional dynamics of the Five seventeenth century monarchies. Appointed by the sovereigns in order to set up their own judicial arm and ensure the strict application of the royal law, these officials actually exercised an alternative power, often opposing to the central one. This counter-power stemmed precisely from the prominent role performed, ex officio, in the administration of justice of last degree, not to mention the personal prestige claimed by these judges, chosen among the most distinguished jurists of the realm and coming from the most relevant families. A silent confrontation, then, that elects Law – and in particular the rules of the process – as a privileged ground of clash. This is a capital fact, especially if focusing, as I intend to do in this paper, on the collections of Seventeenth century decisiones relating to the judgements of the “Supremi Tribunali” of the Regnum Siciliae. These represent a literary genre flourishing in Sicily in that time, a genre to which the most distinguished jurists devoted themselves, the same who, as mentioned, were part of those same courts as judges. These primary sources return an image of a legal doctrine committed to provide such an extensive interpretation of the royal law as to result almost subversive, presenting a scheme in wich the doctrin produced by the togati became itself a source of law, thus overtaking the royal legitimacy. Here, then, as the Sixteenth century judge, in his role as high royal official, becomes the balance of the political, institutional an doctrinal reality of the Regnum Siciliae.