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The Influence of Foreign Legal Literature in the Works and Teachings of David Nehrman Ehrenstråle

L’influence de la littérature juridique étrangère sur les œuvres et l’enseignement de David Nehrman Ehrenstråle.
Per Nilsén

Résumé

Après des études en Allemagne et aux Pays-Bas, David Nehrman devient professeur à l’Université de Lund de 1720 à 1753. L’étude de ses œuvres et du catalogue de sa bibliothèque permet de se faire une idée de l’influence de la littérature juridique étrangère dans la Suède du xviiie siècle.

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Texte intégral

This article was first presented at the ESF/SCH Exploratory Workshop At the Roots of European Legal Culture: Cross-Border Influences of Legal Literature in Early Modern Times (ca. 1550–ca. 1750) in Lille, Dec. 4, 2008. I would like to thank professor em. Per S. Ridderstad (Lund University) who at the international symposium on rare law books, To Collect the Minds of the Law (organized by Kjell Å. Modéer [Lund University], Michael H. Hoeflich [University of Kansas] and Michael Widener [Yale University]), at Fridhemsborg in Malmö back in 2007 drew my attention to the existence of manuscripts like J 140 in the Nehrman Collection of the Linköping Diocesan Library. I also would like to thank Mathias von Wachenfeldt, librarian at the Linköping Diocesan Library, for help and interesting discussions during my stay in the cathedral city of Östergötland.

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  • 1 Jan Eric Almquist, Svensk juridisk litteraturhistoria (1946), David Ehrenstråle in: Svenskt biogr (...)
  • 2 Stig Jägerskiöld, Studier rörande receptionen av främmande rätt i Sverige under den yngre landsla (...)
  • 3 David Nehrman, Inledning til Then Swenska Iurisprudentiam Civilem 1729, Then Swenska Jurisprudent (...)
  • 4 Lars Björne, Patrioter och institutionalister. Den nordiska rättsvetenskapens historia. Del I. Ti (...)
  • 5 Bo Palmgren, David Nehrman-Ehrenstråles bibliotek in: Rättshistoriska studier I (1951).

1The aim of this contribution is to initiate a new discussion on the role and provenance of the foreign legal literature in the works and teachings of the 18th century Swedish law professor David Nehrman Ehrenstråle (fig. 1). For legal historians in Sweden and Finland, this is not a new topic: David Nehrman’s commentaries on Swedish law have always been held in high regard and have – rather naturally – been used in order to analyse the reception of Roman and other “foreign” law in the Swedish legal system. Here, I’ll just mention the research of Jan Eric Almquist1 in the 1940s, Stig Jägerskiöld2 in the 1960s, Kjell Å. Modéer3 in the 1970s and Lars Björne4 in the 1990s. Nevertheless, I hope to address some source material which I think deserves more attention from the legal historians, the library of David Nehrman. I am not the first to be interested in this collection: the library’s history was described by the Helsinki professor Bo Palmgren in the 1950s5 who also planned further, more detailed investigations of its contents. Now, I think it’s time to continue Palmgren’s quest and by this presentation, I hope to give a glimpse of the possibilities. But before doing this, and in order to place David Nehrman in his environment, I think it is necessary to take a closer look at his background, at his career and – to begin with – at the 18th century Swedish legal culture in general.

David Nehrman Ehrenstråle (1695–1769). Portrait in the main building of the Faculty of Law, Lund University

David Nehrman Ehrenstråle (1695–1769). Portrait in the main building of the Faculty of Law, Lund University

Painted by Carl Mörth, university drawing-master 1722–1754

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  • 6 A shorter German language survey of the most important developments in Swedish legislation from t (...)
  • 7 A general survey of the development can be found (e.g.) in Sten Lindroth, Svensk lärdomshistoria. (...)

2To describe the Swedish legal culture of the 18th century, we have to start in the 17th century or even earlier: in the Middle Ages. In the middle of the 14th century, a unitary, national legislation in the form of two codes – the Land Code and the Town Code – was issued. In 1442, the Land Code was revised and, finally, as late as in 1608, it was printed. Then years later, a printed edition of the Town Code was issued as well6. Politically, the 17th century was characterised by the rise of Swedish military power and much of the Baltic Sea area came under Swedish control. This expansion called for educated staff in the various branches of public administration. The late medieval university in Uppsala was reopened after the reformation and in the 1620s, a number of grammar schools were founded in various cathedral cities. Two of those grammar schools were later reorganised as universities: the university of Tartu (Dorpat) in Livonia and Turku/Åbo in Finland. Both universities were organised after the pattern of Uppsala with two chairs in the law faculty: one responsible for Swedish law and one responsible for Roman law. When the Lund University was opened in 1668, the structure of Uppsala was followed as well, but with a special divergence: Samuel (von) Pufendorf’s chair in natural law which was incorporated in the law faculty. In the course of time – and as a consequence of the chronically bad finances of the Crown – the two chairs of the law faculties were often merged into one professorship with responsibility for all legal disciplines. Natural law – a subject which was promoted by the authorities, as seen for example by the recruitment of Pufendorf to Lund – could often be read both in the Faculty of Law and in the Faculty of Philosophy7.

  • 8 1614 års rättegångsordinantia (Royal Ordinance on Procedure, 1614), Art. 11; 1615 års rättegångsp (...)
  • 9 A general description of the phenomenon can be found in Lindroth (supra note 7), p. 56–65 ; see a (...)

3The organisation of higher education was a prerequisite of the 17th century professionalisation of society. In 1614, today’s Svea Court of Appeal (Svea hovrätt) was founded in Stockholm, followed by similar courts in Turku (1623), Tartu (1630) and in south Swedish Jönköping (1634). A part of the appeal judges should, according to the original regulations, be “learned” – that is, actually possess some sort of relevant education for their task8. During the early 17th century, but also later, this erudition was often acquired abroad – mainly at trustworthy Protestant universities in Germany or in the Netherlands – as a result of the insufficient national educational system9.

  • 10 The reception of Roman law in Sweden during the 17th century has been investigated in several boo (...)
  • 11 Kristoffers landslag (Land Code of King Christopher), konungsbalken (Book on the King) Chapter 4, (...)
  • 12 Royal letter to Göta Court of Appeal Oct. 5, 1683; royal letter to Svea Court of Appeal Nov. 14, (...)

4This had consequences for the law of the land. 17th century Swedish society was still ruled by the norms of the two medieval codes but was often confronted with “new” areas of legal problems – problems which where often only partly regulated in royal ordinances or other forms of written statement. It was therefore not surprising that the adjudication of the courts of appeal in cases not regulated in written law was influenced by Roman law ideas which the learned judges had become acquainted with during their peregrinatio academica10. The formal position of foreign regulations as a legitimate source of law was nevertheless rather a bit unclear: the oath, stipulated in the Land Code, which the King had to swear at the accession to the throne, bound the regent not to introduce any foreign law in the kingdom which could burden the common man11, but – of course – Roman principles could be understood as ratio scripta. In the 1680s, royal letters were issued to the courts of appeal, ordering the judges to stick to Swedish law and to avoid both foreign language – and foreign law12.

  • 13 Kristoffers landslag (Land Code of King Christopher), konungsbalken (Book on the King) Chapter 1, (...)
  • 14 See e.g. Lindroth (supra note 7), p. 249–256; Johan Nordström, De yverbornes ö (1934) and Johanne (...)

5This “nationalisation” of law went more or less hand-in-hand with a gradual upgrading of the national history, which – at least in our modern, more critical eyes – was a rather problematic undertaking. Not having much of an older, recorded history, the Swedish historians and state authorities began not only collecting Icelandic sagas but also studying classical writers in pursuit of a heroic past, fitting for a growing European power. The main line of historical research followed the traces of Tacitus’ Germania and Jordanes’ Getica. Especially Jordanes’ idea, that the Goths had emigrated from a northern island in the ocean – which readily could be identified with Scandinavia or even Sweden itself – became a sort of dogma, giving the country illustrious traditions on the European continent. This line of historiography (as such originally a reception of Spanish and German ideas), the so-called Gothicism, had actually already influenced the revision of the Land Code back in the 15th century13 but grew in importance during the 17th century and very much put its stamp on Swedish legal history of its time14.

  • 15 See Strauch (supra note 6), p. 66–106. The preparatory works of the Code of 1734 (such as the min (...)
  • 16 As miljöbalken (Book on Environment) in 1998.

6During the last part of the 17th century, the position of the King was strengthened at the expense of the powers of the Council of the Realm and the four estates’ Diet. By giving up their formal veto in legislative matters, the Estates – more or less willing – facilitated the long due reform of Swedish law. In 1686 a law commission was formed and in 1736, after fifty years of legislative work and after the abolition of royal absolutism, the new Law of the Realm of Sweden gained legal force. The contents of the regulations can broadly be described as either inherited from older legislation such as the medieval Land and Town Codes and later royal ordinances or codified judicial practice with its roots in the professionalized courts of appeal15. This codification – usually called the Code of 1734 after the year it was approved by the Diet – is still regarded as the fundament of modern Swedish legislation. Even if only very few of the original regulations are in force, still today more important acts of law are incorporated as so-called “books” (balkar) into the structure of the Code16.

7Now – to the person of David Nehrman Ehrenstråle!

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  • 17 Biographical data concerning Nehrman are here and below taken from Almquist’s article in Svenskt (...)

8David Nehrman was born in Malmö in 1695 – 37 years after the annexation of the Danish province of Scania to Sweden. His parents, the fairly well-off merchant Hans Nehrman and his wife, Ingeborg Faxe, lived in a property centrally located at one of provincial capital’s main streets. Hans Nehrman constituted the third generation of the family in Malmö – his great-grandfather came in 1612 to the Danish town from Lübeck. Ingeborg Faxe’s father was a dean from the countryside east of Malmö17.

  • 18 On the history of Lund University in English, see Carl Fehrman, Håkan Westling & Göran Blomqvist, (...)

9Even if Scania – along with the provinces of Halland, Blekinge and Bohuslän – was a part of the Swedish realm since 1658 and the fortifications of Malmö had been modernized and enlarged by the Swedish authorities, the peace was short-lived. Parts of Scania were occupied by Danish forces in periods between 1675 to 1710 and after the wars the province was hit by the plague. At the same time, the Swedish authorities managed to reorganise the public administration and legal system according to the Swedish model and succeeded, finally, also in the more complicated task of making the population accept Swedish supremacy. One of the methods was to “swedify” the civil and ecclesiastical administration – either by favouring native Swedes at vacancies or educating Scanians in a good, Swedish spirit. This was the main reason for the foundation of a university in the medieval cathedral city of Lund in 1668: to make good Swedes out of hesitant Scanians18.

10In January 1712, David Nehrman – then aged 16 ½ – travelled the 17 kilometres from Malmö to Lund. At this time, there was no possibility to study law at the university since the only law professor was often ill – but David Nehrman heard lectures in the Faculty of Philosophy by the professor in logics and metaphysics and by the professor in natural and international law. In 1714, David Nehrman – following the old tradition of peregrinatio academica – went abroad: first to the university in Rostock, then – at least – to Jena (1715), Halle (1716), and probably, Leiden and Utrecht. Traditionally, in the literature, his stay in Halle is said to have been the most important for his future career as a professor in law. When David Nehrman stayed at this university, Christian Thomasius was its director, and the chair in natural and international law was held by N.H. Gundling. Halle was the most “modern” German university of the time: a centre for the early German enlightenment, founded on religious tolerance, natural law and a vivid interest in history and public law.

11Back in Sweden, Nehrman stayed for a shorter period as a trainee at the Court of Appeal in Jönköping, but returned to Lund in 1718. Two years later, he was made temporary professor in law and should as such attain half the salary of the weak permanent professor. In 1721, this professor was granted leave and David Nehrman was appointed permanent professor in Swedish and Roman law at Lund University. Some years later, he married the local bishop’s daughter and in 1729, he obtained his full salary – a consequence of the timely death of his predecessor.

12Nehrman was responsible for the legal education at Lund University for more than thirty years – some periods aided by an assistant professor, but far from always. In this period, he managed to lecture on most fields of law – and he did this in Swedish, probably inspired by one of his former teachers. He also took active part in the discussions concerning the higher education and the legal studies of the time. During the last years of the 1730s, Nehrman began to get tired of lecturing and he applied several times for an office as a judge referee to the Supreme Court Division of the Council of the Realm in Stockholm. Those applications were never approved since it was impossible to find a qualified successor for the chair, but in 1746 he was raised to nobility – even if the diploma was not issued until 1756; then his family name was changed to Ehrenstråle. By then, he had obtained the title of a judge referee and had also, in 1752, received the doctoral degree in law.

13In 1753, he was finally granted leave from the university with retained lifelong salary. Then he left Scania, travelled north and settled at the manor Säby in the province of Småland, a property of his wife’s family which the Nehrmans had used as a summer retreat for several years. Here David Nehrman died in May 1769.

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  • 19 Full Swedish title Inledning til then swenska jurisprudentiam civilem. Af naturens lag och Swerig (...)

14During his time as a teacher in Lund, David Nehrman lectured over Roman law, public law, penal law, procedural law, civil law, fiscal law, ecclesiastical law and all of the books of the Code of 1734 (including such topics as marriage law, law of inheritance, property law and commercial law). In 1729, that is eight years after the appointment to permanent professor but twelve years before the enactment of the new Code of 1734, he published his probably most important work, the textbook Introduction to Swedish Private Law or – in full title: Introduction to the Swedish Private Law, Extracted from the Law of Nature and Older and Newer Statutes of the Realm of Sweden19.

  • 20 In Swedish Hwad som fordras til ett grundeligt Lag-Wett (p. 1–26), Om Lagen i Gemen (p. 26–44), O (...)

15The reason for this publication was a practical one: useful literature was lacking and until then, the teacher had dictated a prepared text for the students, who then took notes of their own and apparently, Nehrman thought this was a waste of time. His Introduction to Swedish Private Law consists of 424 pages and an index – all printed, as was normal Swedish standard at the time, in German style black letters. The main part deals – not very surprisingly – with Swedish private law as it should be interpreted on the basis of the medieval Land and Town Codes. In reality, the interpretation was in focus – that is, to explain which regulations still were in force, how other regulations had been superseded by newer ordinances or royal letters and to try to form this rather heterogeneous flora of different legal sources of different age and provenance into some sort of system. Because of this rather untidy state of Swedish law at the time, the first section of the book contains six introductory chapters on the subjects What is Necessary for a Solid Knowledge of Law, On Law in General, On the Laws of Sweden (very much dealing with legal history), On the Correct Use and Interpretation of the Law, On the Rules and Principles of Law and On Justice and Equity20 (totally 92 pages out of the 424). And really – this is perhaps the most interesting part of the book, at least if you are not on the hunt for an answer regarding positive, early 18th century Swedish law. Unfortunately, the author has been very economical with references to used sources. If Nehrman could find a section in Swedish legal material – valid or not – it is cited, but when it comes to foreign legal material or foreign authors in the legal sphere, the reader is often suspended in mid-air. This is especially irritating, since the first part of the book contains, among many other things, some almost classical statements on the usefulness – or more to the point: uselessness – of Roman law for the study of the Swedish legal system. Regardless of this, the book is bristling with Latin terms and sentences.

  • 21 Swedish title Inledning til then swenska processum civilem.
  • 22 The supplement is included in Modéer’s facsimile edition (supra note 3).
  • 23 Swedish title Föreläsningar öfwer giftermålsbalken.
  • 24 Swedish title Föreläsningar öfwer ärfdabalken.
  • 25 Swedish title Inledning til then swenska jurisprudentiam criminalem.
  • 26 Swedish title Inledning til then swenska processum criminalem.

16In 1732 it was followed by a similar Introduction to Swedish Private Procedure21. Four years later, in 1736, the new Code came into force. This did not only necessitate updated versions of the already published works – a supplement to his Introduction to Swedish Private Law was published in 174622 and a new edition of the Introduction to Swedish Private Procedure came in 1751 – but this also stimulated to new publications: the printed Lectures on the Book on Marriage23 (1747), Lectures on the Book on Inheritance24 (1752), and two new Introductions, both published after his retirement from Lund: one to Swedish Criminal Law25 (1756) and one to Swedish Criminal Procedure26 (1759).

  • 27 Den egentlige grundläggaren af det juridiska studiet vid Lunds universitet så väl som af den sve (...)

17Thanks to his merits as a teacher and legal writer, Nehrman acquired a solid reputation as one of the country’s most important jurists. His books were used – directly or indirectly – for many years at the Swedish universities and lecture notes, taken by his students, were and are kept in many private and public collections. It is therefore not surprising, that one of the 19th century historians of the Lund University, probably not without pride, declared Nehrman to be “the true founder of the legal studies at Lund University as well as of the Swedish jurisprudence of later times”27.

  • 28 Almquist (supra note 1), David Ehrenstråle in: Svenskt biografiskt lexikon vol. 12, p. 385–391; S (...)
  • 29 Jan Eric Almquist, Till frågan om skattebondens jordäganderätt under perioden 1719-1789 in: Minne (...)
  • 30 Axel Hägerström, Nehrman-Ehrenstråles uppfattning om grunden för ett löftes bindande kraft […] in (...)
  • 31 Jägerskiöld (supra note 2), esp. p. 119–123.
  • 32 Modéer (supra note 3).
  • 33 Björne (supra note 4), p. 72–80, 253–257, 397–398.

18Nehrman’s importance for the 18th and 19th century Swedish law has – of course – led to an interest among the legal historians and other members of the legal professions. Jan Eric Almquist – professor of legal history at the University of Stockholm – wrote articles on Nehrman’s person and legal writings in the biographical standard work Svenskt biografiskt lexikon and in some publications, primarily intended as course material at the Stockholm University28. Almquist and the well known Uppsala professor of philosophy, Axel Hägerström, both contributed to the volumes commemorating the bicentennial existence of the Code of 1734 by contributions where Nehrman’s opinions on dominium directum et utile29 and his views on the binding force of promises in Swedish law30 were discussed. In both contributions, Nehrman’s Introduction to Swedish Private Law was used as a primary source and both authors point at the importance of the natural law theory as it was formed at the University of Halle for the ideas of Nehrman. Nehrman’s Introduction to Swedish Private Law also played a central role in the study of Stig Jägerskiöld concerning the reception of Roman law in Sweden during the early modern period31. In the 1970s, the Introduction to Swedish Private Law and its supplement from 1746 was published in a facsimile edition with an introduction in Swedish and German by the professor of legal history in Lund, Kjell Å. Modéer32. In the 1990s, Modéer’s colleague at the University of Turku, Lars Björne, dealt with Nehrman in the first volume of his History of Scandinavian Legal Science. Here, Björne not only summarises the research done on Nehrman but he also places him in a larger, primarily Scandinavian but also European legal perspective33.

V

  • 34 Palmgren (supra note 5), p. 41–69.
  • 35 Palmgren (supra notes 5 and 34).

19As mentioned in the beginning of my presentation, the Finnish professor Bo Palmgren, published an article on the library of David Nehrman in the 1950s34. At his manor Säby, Nehrman had built a special house for his collection of books and manuscripts, in order to keep them safe from fire. Ironically, this building was struck with lightening already in 1752 – that is the year before Nehrman and his family left Lund for a perhaps quieter life in the countryside. It is unknown exactly how much damage the fire caused – we do not know anything for sure about the extent of the devastation or if Nehrman still kept parts of his collection back in Lund. But at Säby, he continued to work and to publish – and the library was re-established in its special building for itself. After the death of Nehrman, this turned out to be a wise decision: in 1789, the main building of the manor burnt down, but this time, the library was saved. It stayed in the family until it was bought by a book-loving foundry proprietor whose grandson donated the collection to the Diocesan Library in Linköping, a town ca. 170 kilometres southwest of Stockholm35. In the 1970s, the Diocesan Library was united with the municipal City Library and acquired a new, modern building. In 1996 this building was destroyed – by fire. But as luck would have it, the collections kept in the cellar store rooms were left undamaged – among them the Nehrman library.

20Today, the library building is re-constructed and on the premises, the Diocesan Library works as a special department equipped with all modern facilities, such as a modern data-base catalogue. But there are other catalogues as well – such as Nehrman’s own catalogue of his library (fig. 2).

Nehrman’s own catalogue

Nehrman’s own catalogue

One page of Nehrman’s original library catalogue in the Linköping Diocesan Library

  • 36 Palmgren (supra note 5), p. 41–42.
  • 37 Palmgren (supra note 5), p. 54–57.
  • 38 Stig Jägerskiöld, Utländsk juridisk litteratur i svenska juristbibliotek från tiden före år 1734 (...)

21This catalogue is – as Palmgren has shown36 – not complete. But there is a complete catalogue of the collection, dating from 1823, covering about 2 200 titles of different provenance. So here, we can gain a direct insight into the work-shop of “the true founder […] of the Swedish jurisprudence of later times”. Oddly enough, it seems it has never been used by researchers in legal history, although a similar – but according to Palmgren less accurate37 – register, kept in the Royal Library in Stockholm, was used as a source by Stig Jägerskiöld when he in 1965 published a survey of foreign legal literature in Swedish lawyer’s libraries from the period before 173438. And even better – very much of the original material in the collection is still there, as survivors of at least two devastating fires. Books, notes, and manuscripts… and some rather interesting “border-line cases” – something in-between books and manuscripts.

  • 39 It is noted as manuscript J 140 (Anmärkningar till ‘inledning til then swenska jurisprudentiam ci (...)

22In the Nehrman library, there is one very special copy of Nehrman’s Introduction to Swedish Private Law; in the catalogue it is actually not classified as a book but as a manuscript39. It is the author’s own edition where only every second leaf carries the printed text. The empty pages, Nehrman himself has filled with different notes: references to books, often with cryptic abbreviations of authors or titles, references to royal letters, acts of law, various citations, etc. So, by using this very special copy, I am rather certain we actually could trace many of the sources to his text.

  • 40 Björne (supra note 4), p. 253–254.

23As I briefly mentioned before, Nehrman’s critical view on the usefulness of Roman law in studying the Swedish legal order has for a long time been commented upon by various legal historians – most recently by Lars Björne in his History of Scandinavian Legal Science. Björne sees Nehrman’s deprecation of Roman law as a result of the influences of Christian Thomasius in Halle40. This is without any doubt correct, but by using this copy, I think it would be possible to go even deeper into the sources and thoughts of Nehrman himself (fig. 3): Section 43 (p. 14 in the book) says – the author is discussing various useful knowledge for a law student – that:

  • 41 Snart hade jag glömt nämna Juris Romani studium, som af mångom hålles för thet första och förnäm (...)

I had almost forgotten to mention the study of Roman law, which by many is held to be the first and foremost which one has to know, if one plans to make progress in legal science – even if those Roman and Constantinopolitan laws are not applicable here in the Realm41.

In Section 44 he continues:

  • 42 Men jag understår mig likwäl at säga: at then, som innan han någorlunda förstår Swenska Lagen, l (...)

But, nevertheless, I dare to say, that the one who studies jus romanum or only the Institutions or some compendium institutionum, thinking this will give him a clean and solid ground in legal science, works very much in vain; he gets a wrong understanding of many things and later, he will have more difficulties in interpreting Swedish law and in using it, than him, who never knew anything about Roman law42.

Manuscript J 140 of the Linköping Diocesan Library

Manuscript J 140 of the Linköping Diocesan Library

A copy of Nehrman’s Introduction to Swedish Private Law interleaved with the author’s own annotations

24In the margin, we notice various references – for example to Gundling and probably to the second volume, page 368 of his Collegium historico-literarium. This volume was, as far as I have seen (this is still very much a work in progress), issued in 1742 and must therefore have been added by Nehrman as a kind of updated reference. And so, we can go on and on – discovering references by the author’s own hand.

  • 43 Noted as manuscript J 56 (Anteckningar till Sveriges rikes lag [Sthlm 1736]. Interfolierat band) (...)

25The fact that Nehrman in this volume does not explain his abbreviations could possibly constitute a problem. Luckily, it seems as though Nehrman had rather early developed a kind of consistent abbreviation system which he stuck to. I will demonstrate this by another “border-line case”: Nehrmans own annotated copy of the Code of 1734 – of course in the original, first edition43. The volume is bound the same way as his Introduction to Swedish Private Law; that is every second leaf was blank and ready for annotations. It is by no means impossible, that we here actually have the sources for many of his lectures and publications after 1736 – here, for instance, we have his notes to the second chapter of the Book on Marriage, concerning impediments (fig. 4).

Manuscript J 56 of the Linköping Diocesan Library

Manuscript J 56 of the Linköping Diocesan Library

A copy of the Code of 1734 interleaved with Nehrman’s annotations on matrimonial law

26But in this volume, we also have one of the keys to his abbreviation system (fig. 5). In total, the abbreviations cover 54 titles (from “AN.N. von J. B.” which – according to Nehrman’s own, not always very easily read, explanation means “Aller Neueste Nachr. von J.B.” to “U.Cr.”, meaning “Unparteyliche Critik über die neuesten Juristischen Schriften”. By conferring those often rather rudimentary titles with authoritative library material – preliminary, I have used the OPAC-catalogue of the Max Planck Institute of European Legal History in Frankfurt am Main and the national catalogue of the Royal Library (Kungliga biblioteket) in Stockholm – a rather exact reconstruction of the titles is possible.

Manuscript J 56 of the Linköping Diocesan Library

Manuscript J 56 of the Linköping Diocesan Library

One of the keys to Nehrman’s abbreviation system

  • 44 Per Nilsén, Att”stoppa munnen till på bespottare”. Den akademiska undervisningen i svensk statsrä (...)

27Sometimes, it is even possible to find Nehrman’s own copy of the book. To put it briefly: the absolute majority of titles are – not very surprisingly – of German origin. Lacking any statistical evidence and heavily relying on the charm of first impression, various works of Gundling and Augustin von Leyser’s eleven bind work Meditationes ad Pandectas (published 1717–1748) are among the clear favourites of Nehrman, including Swedish handbooks, covering more important decisions of the Diet, acts of laws and royal ordinances. This is also more or less in accordance with the abbreviation key of one of the unpublished manuscripts in the collection, the one devoted to jus publicum – i.e. to Swedish constitutional law. In this manuscript of 623 pages, written between 1731 and 1739, approximately 35 titles are of Swedish origin, 35 of German, 2 of Dutch. Danish titles have been used four times, English six and French two times44. To a certain degree, the same titles appear in both manuscripts – such as Michael Heinrich Gribner’s Selecta opuscula iuris publici (published in Halle between 1722 and 1722), Leyser’s already mentioned Meditationes ad Pandecta and the Allerneueste Nachrichten von Juristischen Büchern, Academischen Abhandlungen, Deductionen und Verordnungen grosser Herren, published in Frankfurt/Leipzig in 1737–1739.

VI

28I am myself very enthusiastic about the possibilities of this material. It is still virgin. It can be used to highlight certain legal institutions in Swedish law, it can be used to shed more light over Nehrman’s views concerning Swedish legal history (how much was he a follower of the traditional nationalistic, Gothicistic historiography?, etc.) and which part should or could, according to Nehrman, foreign legal sources and literature play in the interpretation of Swedish law? We could get a clear impression of the importance of foreign legal literature for Nehrman’s own ideas. And so on. Here, in the Nehrman library, I think, we have answers to many questions.

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Notes

1 Jan Eric Almquist, Svensk juridisk litteraturhistoria (1946), David Ehrenstråle in: Svenskt biografiskt lexikon vol. 12 (1949) – see also note 28.

2 Stig Jägerskiöld, Studier rörande receptionen av främmande rätt i Sverige under den yngre landslagens tid (1963).

3 David Nehrman, Inledning til Then Swenska Iurisprudentiam Civilem 1729, Then Swenska Jurisprudentia Civilis 1746. Med en inledning/und mit einer Einleitung in deutscher Sprache […] av Kjell Å. Modéer (Acta Societatis Juridicae Lundensis 35, [1979]).

4 Lars Björne, Patrioter och institutionalister. Den nordiska rättsvetenskapens historia. Del I. Tiden före år 1815 (Rättshistoriskt bibliotek LII [1995]).

5 Bo Palmgren, David Nehrman-Ehrenstråles bibliotek in: Rättshistoriska studier I (1951).

6 A shorter German language survey of the most important developments in Swedish legislation from the middle of the 14th century until 1734 can be found in Dieter Strauch, Quellen, Aufbau und Inhalt des Gesetzbuches in: Das schwedische Reichsgesetzbuch von 1734 (ed. Wolfgang Wagner, Ius Commune Sonderhefte 29 [1986]), esp. p. 61–66.

7 A general survey of the development can be found (e.g.) in Sten Lindroth, Svensk lärdomshistoria. Stormaktstiden (1975), p. 15–56, 65–69.

8 1614 års rättegångsordinantia (Royal Ordinance on Procedure, 1614), Art. 11; 1615 års rättegångsprocess (Royal Ordinance on the Procedure in the Court of Appeal, 1615), Art. 2. Both printed in Kongl. Stadgar, Förordningar, Bref och Resolutioner […] Angående Justitiæ och Executions-Ährender (1706), p. 133–141, 143–163. Cf. Per Nilsén, Gelehrte und rechtskundige ehrliche Männer. Die Zusammensetzung der schwedischen Hofgerichte 1660–1780 in: Integration durch Recht. Das Wismarer Tribunal (1653–1806), Nils Jörn, Bernhard Diestelkamp, Kjell Å. Modéer (ed.) (Quellen und Forschungen zur Höchsten Gerichtsbarkeit im Alten Reich 47 [2003]), p. 297–318.

9 A general description of the phenomenon can be found in Lindroth (supra note 7), p. 56–65 ; see also Lars Niléhn, Peregrinatio academica. Det svenska samhället och de utrikes studieresorna under 1600-talet (Studia Historica Lundensis LIV [1983]) and Pär Eliasson, Resande studenter under 600 år in: Lychnos. Årsbok för idéoch lärdomshistoria 1992 (1992).

10 The reception of Roman law in Sweden during the 17th century has been investigated in several books and articles, such as Stig Jägerskiöld (supra note 2), Heikki Ylikangas, Kampen mellan naturrätt och romersk rätt i Sverige. Två förklaringar in: Den svenska juridikens uppblomstring i 1600-talets […] stormaktssamhälle. (Rättshistoriska studier IX [1984]), p. 145–159 (including a short summary in English) and Björne (supra note 4), p. 22–38, 42–51.

11 Kristoffers landslag (Land Code of King Christopher), konungsbalken (Book on the King) Chapter 4, Section 7.

12 Royal letter to Göta Court of Appeal Oct. 5, 1683; royal letter to Svea Court of Appeal Nov. 14, 1684. Both printed in Kongl. Stadgar, Förordningar, Bref och Resolutioner (supra note 8), p. 856 and 876–877.

13 Kristoffers landslag (Land Code of King Christopher), konungsbalken (Book on the King) Chapter 1, introduction.

14 See e.g. Lindroth (supra note 7), p. 249–256; Johan Nordström, De yverbornes ö (1934) and Johannes Magnus och den götiska romantiken (1975); Björne (supra note 3), p. 360–374.

15 See Strauch (supra note 6), p. 66–106. The preparatory works of the Code of 1734 (such as the minutes of the law commission and of the Diet etc.) are published in Wilhelm Sjögren, Förarbetena till Sveriges Rikes Lag 1686–1734 (I–VIII [1900–1909]).

16 As miljöbalken (Book on Environment) in 1998.

17 Biographical data concerning Nehrman are here and below taken from Almquist’s article in Svenskt biografiskt lexikon (supra note 1; note 28) and Modéer’s biographical introduction – in both Swedish and German – in the facsimile edition of David Nehrman, Inledning til Then Swenska Iurisprudentiam Civilem (supra note 3), p. XI–XXV.

18 On the history of Lund University in English, see Carl Fehrman, Håkan Westling & Göran Blomqvist, Lund and Learning (2004). In Swedish, the most important works are Martin Weibull (and Elof Tegnér), Lunds universitets historia 1668–1868 I–II (1868) and Lunds universitets historia I–IV. Lund, (1968–71, 1982).

19 Full Swedish title Inledning til then swenska jurisprudentiam civilem. Af naturens lag och Sweriges äldre och nyare stadgar utdragen och uppsatt.

20 In Swedish Hwad som fordras til ett grundeligt Lag-Wett (p. 1–26), Om Lagen i Gemen (p. 26–44), Om Sweriges Lagar (p. 44–66), Om Lagens rätta bruk, vthtolkning och lämpande til förekommande måhl (p. 66–80), Om Grund Reglorne til et rätt Lagwett, som äro Regulæ & principia Juris (p. 80–87) and, finally, Om Rättwisan och Billigheten (p. 87–92).

21 Swedish title Inledning til then swenska processum civilem.

22 The supplement is included in Modéer’s facsimile edition (supra note 3).

23 Swedish title Föreläsningar öfwer giftermålsbalken.

24 Swedish title Föreläsningar öfwer ärfdabalken.

25 Swedish title Inledning til then swenska jurisprudentiam criminalem.

26 Swedish title Inledning til then swenska processum criminalem.

27 Den egentlige grundläggaren af det juridiska studiet vid Lunds universitet så väl som af den svenska juridiska vetenskapen i sednare tid […]”. Martin Weibull & Elof Tegnér (supra note 18), vol. II, p. 108.

28 Almquist (supra note 1), David Ehrenstråle in: Svenskt biografiskt lexikon vol. 12, p. 385–391; Svensk juridisk litteraturhistoria, p. 30–33, 177–194.

29 Jan Eric Almquist, Till frågan om skattebondens jordäganderätt under perioden 1719-1789 in: Minnesskrift ägnad 1734 års lag vol. II (1934), p. 97–136; on Nehrman esp. p. 116–120. The article was later published in the textbook Strödda bidrag till civilrättens historia (1953), p. 108–143.

30 Axel Hägerström, Nehrman-Ehrenstråles uppfattning om grunden för ett löftes bindande kraft […] in: Minnesskrift ägnad 1734 års lag vol. II (1934), p. 571–630.

31 Jägerskiöld (supra note 2), esp. p. 119–123.

32 Modéer (supra note 3).

33 Björne (supra note 4), p. 72–80, 253–257, 397–398.

34 Palmgren (supra note 5), p. 41–69.

35 Palmgren (supra notes 5 and 34).

36 Palmgren (supra note 5), p. 41–42.

37 Palmgren (supra note 5), p. 54–57.

38 Stig Jägerskiöld, Utländsk juridisk litteratur i svenska juristbibliotek från tiden före år 1734 (1965), p. 14.

39 It is noted as manuscript J 140 (Anmärkningar till ‘inledning til then swenska jurisprudentiam civilem… af David Nehrman’ [Lund 1729]. Interfolierat band) in Allan Ranius, Handskriftssamlingen vid Linköpings stiftsbibliotek. Katalog Del 1 (1993).

40 Björne (supra note 4), p. 253–254.

41 Snart hade jag glömt nämna Juris Romani studium, som af mångom hålles för thet första och förnämsta, som then lära bör, hwilken tänker giöra någon märckeligt framsteg uthi Lagfarenheten, fast thessa Romerska eller Constantinopolitaniska Lagar ey gälla här i Riket.

42 Men jag understår mig likwäl at säga: at then, som innan han någorlunda förstår Swenska Lagen, läser Jus Romanum, eller allenast Institutiones, eller något Compendium Institutionum, i then tanckan, at ther med skaffa sig en ren och richtig grund uthi Lagfarenheten, arbetar mycket fåfängt, fattar orichtiga begrep om många saker, och finner sedan flera swårigheter wid Swenska Lagens uthtolckande och lämpande til the förekommande mål, än then, som aldrig wetat af Romerska lagen.

43 Noted as manuscript J 56 (Anteckningar till Sveriges rikes lag [Sthlm 1736]. Interfolierat band) in Ranius (supra note 39).

44 Per Nilsén, Att”stoppa munnen till på bespottare”. Den akademiska undervisningen i svensk statsrätt under frihetstiden. (Rättshistoriskt bibliotek LIX [2001]), p. 139–141, 433–442.

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Table des illustrations

Titre David Nehrman Ehrenstråle (1695–1769). Portrait in the main building of the Faculty of Law, Lund University
Légende Painted by Carl Mörth, university drawing-master 1722–1754
URL http://journals.openedition.org/cliothemis/docannexe/image/1791/img-1.jpg
Fichier image/jpeg, 55k
Titre Nehrman’s own catalogue
Légende One page of Nehrman’s original library catalogue in the Linköping Diocesan Library
URL http://journals.openedition.org/cliothemis/docannexe/image/1791/img-2.jpg
Fichier image/jpeg, 127k
Titre Manuscript J 140 of the Linköping Diocesan Library
Légende A copy of Nehrman’s Introduction to Swedish Private Law interleaved with the author’s own annotations
URL http://journals.openedition.org/cliothemis/docannexe/image/1791/img-3.jpg
Fichier image/jpeg, 100k
Titre Manuscript J 56 of the Linköping Diocesan Library
Légende A copy of the Code of 1734 interleaved with Nehrman’s annotations on matrimonial law
URL http://journals.openedition.org/cliothemis/docannexe/image/1791/img-4.jpg
Fichier image/jpeg, 91k
Titre Manuscript J 56 of the Linköping Diocesan Library
Légende One of the keys to Nehrman’s abbreviation system
URL http://journals.openedition.org/cliothemis/docannexe/image/1791/img-5.jpg
Fichier image/jpeg, 82k
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Per Nilsén, « The Influence of Foreign Legal Literature in the Works and Teachings of David Nehrman Ehrenstråle »Clio@Themis [En ligne], 2 | 2009, mis en ligne le 01 novembre 2009, consulté le 20 juillet 2024. URL : http://journals.openedition.org/cliothemis/1791 ; DOI : https://doi.org/10.35562/cliothemis.1791

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