Bak, János M., 'Introduction', in Custom And Law In Central Europe, 1st edn (Cambridge: Centre for European Legal Studies, Faculty of Law, University of Cambridge, 2003), pp. 1-12)

János M. Bak, 'Introduction'

Footnote: János M. Bak, 'Introduction', in Custom And Law In Central Europe, (Cambridge: Centre for European Legal Studies, Faculty of Law, University of Cambridge, 2003), pp. 1-12.
Bibliography: Bak, János M., 'Introduction', in Custom And Law In Central Europe, 1st edn (Cambridge: Centre for European Legal Studies, Faculty of Law, University of Cambridge, 2003), pp. 1-12)
 

"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 (<p.3)

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." (<p.4)

"Within only a short time of its presentation to the diet in 1514, Werboczy'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 Pergošic, for which see the article by Nataša Štefanec below, pp. 71–85) in 1574, and a German version (by August Wagner) in 1599.10 Court manuals11 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." (p.5)

Whilst an earlier translation into Hungarian exists (a Hungarian translation was published early

in1565; court manuals and other guides published later are summaries or clarifications of the Tripartitum p.5), the most widely-used modern edition of the Tripartitum, a parallel Latin-Hungarian text (the'Millennium' edition, published in Budapest, 1897, in the series Corpus Juris Hungarici 1000–1895, edited by Sándor Kolosvari, Kelemen Óvári and Dezso Márkus) was published in 1897 and is considered defective (p.6). Describes difficulties of translation, including repulsio (see below, p. 68) "which involved the physical obstruction of a court bailiff but which was entirely legal?"

 

Was this a culture-specific Hungarian custom, born of conditions of lawlessness, or were there parallels elsewhere? Also impetrare (apply for) for "royal donation". "Werboczy 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." Also institutio (act of introducing new owner into a holding); fassio (legally-binding declaration); fratres condivisionales (kinsmen with right to inheritance of a joint property) (p.7).

Also, what was the relationship between legal norm and reality? 15th century formulary from Benedictine Monastery or Somogyvar precribes the following:

• judges should apply either local custom or lex (here not positive law but general custom based on ancient legislation);
• Statute law cannot be familiar to all, and thus cannot be applied unless requested; no penalty applies for the lack of its knowledge!
• Plaintiff may request right to judgment according to received custom, local usage, royal decretum, or "general justice", the last two requiring the approval of the judge;
• Royal decisions, if called upon, must be applied due to an obligatory submission to secular authority, even if they contradict custom;
• ius, divine or natural law, has to be followed above any other prescription; these are the supposed higher values that no medieval person would challenge.

Thus, practitioners of law familiar with hierarchy and competing sources of law.

"There are several points where Werboczy 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
Werboczy'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, Werboczy 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

does a remark slip from Werboczy'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, Werboczy 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 Werboczy 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.20 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 Werboczy's teachings reveals several inconsistencies of this
type, where Werboczy is quite clearly making rules in accordance not with
actual practice but with how he thought things ought to be." (pp. 10-11)