The Court Personnel

Anselmo had been landed with his unwelcome new role as judge thanks to the fact that he was a member of the Florentine nobility: all Consoli were required to be Florentine citizens and had to possess sufficient property to qualify them for payment of the decima tax.5 Sanacore, ‘I consoli del mare a Pisa’, p. 48. On the ‘nobility’ see Marcella Aglietti, ‘Patrizi, cavalieri e mercanti. Politiche di nobiltà tra Toscana e Spagna in età moderna’, in Marcella Aglietti (ed.), Istituzioni, potere e società. Le relazioni tra Spagna e Toscana per una storia mediterranea dell’Ordine dei Cavalieri di Santo Stefano (Pisa: Edizioni ETS, 2007), 339–77. They would preferably be members of the Consiglio dei Quarantotto or senate – a council created by the Medici comprising 48 members drawn from the most important families of Florence.6 Addobbati, ‘I consoli del mare’, pp. 314–15; Jonathan Davies, Culture and Power: Tuscany and its Universities, 1537–1609 (Leiden: Brill, 2009), p. 40. They would also, ideally, have some experience in commercial matters.7 Addobbati, ‘I consoli del mare’, pp. 314–15; Sanacore, ‘I consoli del mare a Pisa’, p. 48. Candidates were obliged to move out of the capital to the palace of the dogana (customs house) in Pisa so that cases would not be delayed (no doubt some of Anselmo’s real-life counterparts shared his chagrin on this score) and their appointments were to last a year with the possibility of a six-month extension at the discretion of the Grand Duke.8 Sanacore, ‘I consoli del mare a Pisa’, p. 49.

A list of Consoli and their officials found in the Pisan archive confirms that this pattern of appointments was indeed adopted in practice across most of the century, at least until the accession of Cosimo III in 1670.9 ASP, MM, 112. Across the first three quarters of the century, we find two Consoli being appointed for one-year terms in May and November, respectively: 1617 is the only exception, in which three Consoli were appointed in a single year, two of whom were appointed only for six months each. A few candidates served multiple terms: Vettorio Nelli, for example, served as Console in 1640, 1643, and 1647, and a few others served twice. Nevertheless, the contrast with the Amsterdam Chamber is clear. While the Commissioners in Amsterdam served for a full six consecutive years, in order that they might accumulate valuable judicial nous, the judges in the Tuscan case acquired, at most, a few years of comparable experience. In the majority of cases, they had only a year in which to orientate themselves in their new role. Their familiarity with the court’s activities was thus entirely dependent on their own personal experience as merchants.

Satirical attacks at the hands of dramatists notwithstanding, however, it seems that the Tuscan authorities really did try to ensure that these figures were possessed of some commercial experience in making the appointments. A preliminary prosopographical study of the court by Alessandro Lo Bartolo, comparing the list of Consoli with the records of accomandite (bilateral, limited business partnerships) in Florence, shows that at least half the Consoli in the period 1550–1750 were directly involved in trade themselves or had a confirmed close relative who was, whilst a further 40 per cent had family names which appear in the accomandita register (of which some may in fact have been close relatives).10 Lo Bartolo, ‘The consoli del mare’, pp. 191–2. The real extent of Consular involvement in commerce is most likely higher, since investing in accomandite was by no means the only way of getting involved in business. Eventually, the Tuscans also seem to have tried to give the judges more experience by extending their terms, a phenomenon that began gradually during the reign of Cosimo III.11 ASP, MM, 112. From May 1674 to June 1676, Luigi Ulbaldini appears to have been the sole Console. Camillo Gherardini held his post for two years, from 1685 to 1687. From November 1687 until May 1695, both posts were held by Lodovico Alamanni and Carlo Poltri, respectively, with Poltri remaining in office until 1698 alongside Ruberto del Beccuto. By the end of the century, the custom of nominating two new Consoli a year had completely broken down. There is no clear way to interpret this development. Our source, an official list of Consoli housed in the archives, records not that the holder was granted a tenure of a specific number of years but notes on a rolling basis every time that the term was extended, six additional months at a time. The administration could, of course, have been continually putting off making new appointments by simply proroguing the current appointee’s term, suggesting a lack of interest in the role. It seems more likely, however, that the opposite was true, and that the administration recognised the need to give judges more experience at a time when the volume and complexity of maritime-commercial cases was increasing.12 Andrea Addobbati, ‘Until the very last nail: English seafaring and wage litigation in seventeenth-century Livorno’, in Maria Fusaro, Bernard Allaire, Richard Blakemore, and Tijl Vanneste (eds), Law, Labour and Empire: Comparative Perspectives on Seafarers, c. 1500–1800 (London: Palgrave Macmillan, 2015), 43–60, at pp. 49–50. The unusual way of recording appointments is probably simply an attempt to preserve form, given that the 1561 statutes envisaged only six-month extensions on the annual term.13 Sanacore, ‘I consoli del mare a Pisa’, p. 47.

In theory, the commercial experience of the Consoli was not the only thing that gave the justice of the court a ‘mercantile’ character. If a case which was worth more than 300 scudi reached its fortieth day, a procedure known as ‘ricorso’ could be initiated.14 See Sanacore, ‘I consoli del mare a Pisa’, pp. 101–3. A college of judges was drawn up, comprising the Consoli, the commissioner (commissario) of the city of Pisa, and either four, six, or eight merchants, whose names were to be drawn from the borse di ricorso – the ricorso lists, or, literally, the ‘bags of the ricorso’. One bag contained the names of eight Florentine merchants, the other contained eight Pisan merchants, and these names were changed every three years. While the former were Florentine citizens, the ‘Pisans’ were simply inhabitants of the city and could be foreigners. However, this system does not seem to have been widely used. Even the 1561 statutes gave litigants the option to avoid it and to force the Consoli to arrive at a judgement within the original 45-day limit.15 Addobbati, ‘I consoli del mare’, pp. 313–14. A later government report on the court of the Consoli produced in 1744 for the incoming Lorraine dynasty reports that judgements arrived at through ricorso usually depended not on mercantile custom, but rather on the eloquence of the laywers employed or each side, or else rivalries among the merchants.16 Lo Bartolo, ‘The consoli del mare’, pp. 185–6. It was therefore little used, and interested merchants had begun to resort to ‘written practices’, that is producing written statements of mercantile customs countersigned by a number of their fellows. We know that the borse continued to exist until at least the 1650s, because, as we will see, the calculators in GA cases were drawn from them.17 pp. 82–3. After this time, they seem to disappear from the record.

This is not to say that the Consoli determined the outcomes of cases unaided. The court was also possessed of a permanent staff of officials – legal ‘technicians’ who aided the Consoli in their deliberations. Of particular importance was the chancellor (cancelliere) of the court, known as the secretary (segretario) from the 1660s onwards. In protracted disputes an assessor (assessore or avvocato) could also be called upon by the litigants, who was always a Doctor of Law who lectured at Pisa University.18 ASF, Auditore poi Segretario delle Riformagioni, 116, § 24; Calafat, ‘La somme des besoins’, p. 9. And as the 1744 report mentions, the parties were sometimes represented by attorneys (procuratori).19 Lo Bartolo, ‘The consoli del mare’, p. 186.

The weight of these figures within the court set up was considerable, probably greater than that of the Consoli themselves. In particular, the chancellor’s authority over procedures not only allowed him control over the information on which a judgement was based, as we will see further in Chapter 3, but also allowed him to direct the activities of the court more broadly.20 Sanacore, ‘I consoli del mare a Pisa’, pp. 66–7, 92, 97. This balance of power is suggested in the difference between the 1561 statutes and the wording of the 1604 reform. Whereas the 1561 statutes had held both Consoli and employees of the court responsible for procedural mistakes (threatening them with a fine), the equivalent stipulation in the 1604 reform holds only the Chancellor responsible, recognising an effective diminution of the Consular remit.21 Sanacore, ‘I consoli del mare a Pisa’, pp. 167–74. This was made even clearer in a Grand Ducal rescritto of 1662 which named the chancellor as ‘secretary for the tribunal’ (segretario al tribunale), explicitly limiting the role of the Consoli to the hearing and judgement.22 Sanacore, ‘I consoli del mare a Pisa’, p. 191; Addobbati, ‘I consoli del mare’, pp. 313–14. In contrast to the Consoli, the list of appointees to the court shows that the chancellors were men of considerable experience. Agapito Titio held the role from 1562 to his death in 1598. His son Lorenzo then held it until 1617.23 ASP, MM, 112. Later chancellors did not linger quite so long, but still performed long terms of service, often as a stepping stone in an illustrious career in public administration. Emilio Luci was chancellor from 1659 until 1669, when he was appointed auditore fiscale, the highest authority in the Tuscan legal system and defender of the state’s fiscal interests in all criminal cases.24 Emilio Luci to Cardinal Leopoldo de Medici (6 April 1671), ASF, MM, 358-17. Tommaso Cepparelli likewise held the position from Luci’s departure until at least 1676, eventually becoming luogotenente fiscale, the other main officeholder in the congregazione del fisco.25 For a summary of both of these roles see Burr Litchfield, Emergence of a Bureacracy, p. 85. Benedetto Mochi was appointed for at least two years before becoming auditore (chief legal official) of the Governor’s court in Livorno in 1691.26 ASP, MM, 112. It was not strictly necessary that the chancellor be a Doctor of Law, though it is clear that, in practice, this was always the case.27 ASP, MM, 112; Lo Bartolo, ‘The consoli del mare’, p. 184. The chancellor at the time of the reform, Agapito Titio, is explicitly listed as doctor in utroque.28 ASF, Auditore poi Segretario delle Riformagioni, 116, f. 1r. A memorandum from 1662, moreover, notes that the chancellor was already carrying out the role of legal consultant (consultore legale), which would have necessitated the election of a jurist to the position.29 Sanacore, ‘I consoli del Mare a Pisa’, p. 191. The Consoli, on the other hand, would probably not have received a legal education. Since many of the top positions in the Tuscan bureaucracy and judiciary that required legal training were actually not open to Florentine citizens, going to university was not a priority for high-ranking Florentines who wished to embark on a career in public administration.30 Burr Litchfield, The Emergence of a Bureaucracy, pp. 158–62.

The attorneys meanwhile were quite a limited number and consequently must have become very well-acquainted with one another. In fact, we find only two regularly conducting GA cases at any one time during our period.31 ASP, CM, AC, 198-17 (13 August 1640), Citation; ASP, CM, AC, 320-7 (28 May 1670), Citation; ASP, CM, AC, 417-27 (23 March 1699/1700), Citation; ASP, CM, AC, 417-16 (9 February 1699/1700), Judgement. These men would naturally have received a legal education, and it has also been claimed that the attorneys who worked in the court of the Consoli in the seventeenth century were notaries.32 Guillaume Calafat, ‘Jurisdictional pluralism in a litigious sea (1590–1630): hard cases, multi-sited trials and legal enforcement between North Africa and Italy’, Past & Present 242 (2019), 142–78, at p. 169. This seems to have indeed been the case in the first half of the century. We find all three proctors named in the sources from 1600 and 1640 in the index of notarial protocols housed in the state archive in Florence: Amadio Ghibellini (acting as a notary in Pisa between at least 1595 and 1613), Lorenzo Zucchetti (1634–58), and Vincenzo Frosini (1617–49).33 ASF, Inventario N/484, ‘Notarile Moderno: Inventario sommario dei notai che hanno rogato in Toscana dal 1569 al 1860’. In the second half of the century, on the other hand, the attorneys appear not to have been notaries themselves. Michelangelo Frosini, a proctor from 1670, could have been the father of the notary, Giovanni Vincenzo Frosini, active in Livorno from 1663 to 1670 and bearing the patronymic ‘Michelangelo’. He might also have been a relative of Alessandro Frosini, a notary active in Pisa in the same period: he himself, however, is not to be found in the index. Many of the Frosini family appear to have held positions at Pisa University.34 See Marta Battistoni, ‘Molina di Quosa e la casa di Michele’. A copy of this unpublished study was given to me by Professor Andrea Addobbati. A government report on GA from the late eighteenth century suggests that all cases were handled with the help of these attorneys, but in the seventeenth century it is not possible to definitely establish their presence in every case. For they year 1600 they were present for at least one of the parties in 9 of the 13 cases, for 8 of the 10 cases in 1640, for 5 of the 19 cases in 1670, and for 5 of the 12 cases dealt with in 1700. Sometimes they are recorded as having represented one part of the other only aurally (‘in voce’).35 ASP, CM, AC, 198-17 (14 August 1640). Sometimes they are explicitly mentioned in the court summons along with the part they represent; sometimes their presence can be inferred from the fact that a fee is levied in their name at the end of the procedure.36 ASP, CM, AC, 199-16 (15 November 1640); ASP, CM, AC, 198-17 (14 August 1640). In those cases where neither indiciation is present, the parties probably did not avail themselves of the services of an attorney.

The mixed composition of the court – merchant litigants, patrician-merchant Consoli, and university-educated officials – allows us a perspective on a central problem in the history of commercial law, namely the relative importance of the ius commune in the actual operation of commercial justice during the early modern period, a question which in turn directly pertains to the issue of commercial law’s autonomy. Though educated jurists had in fact often written on commercial subjects in the medieval period, it is undoubtedly the case that the early modern period saw increasing ‘professionalisation’ in the field of private commercial law, a development which increased the potential relevance of ius commune principles and even the substantive rules contained within its authoritative texts. Learned jurists became increasingly interested and involved in mercantile cases, and the publication of De mercatura seu mercatore tractatus (Treatise on commerce or the merchant) by Benvenuto Stracca in Venice in 1553 heralded a new era in which university-educated jurists published increasing numbers of treatises dedicated exclusively to commercial and maritime law.37 Benvenuto Stracca, De mercatvra, sev mercatore tractatvs, ed. Marco Cian (Turin: Giappichelli, 2024). The other major development in this period was the increasing importance of centralised courts whose decisions were published in printed collections, with the activities of the Genoese Rota being considered particularly important for maritime and commercial law.38 Mario Ascheri, Introduzione storica al diritto moderno e contemporaneo (Turin: Giappichelli, 2008), pp. 134–46. Whilst the Rota sought to uphold existing Genoese mercantile custom, explicitly maintaining the principle of mercatorum observantia facit ius (the observance of merchants makes law), the judges of the Rota naturally carried forward their own experience and education as jurists to the cases they encountered. 39 Vito Piergiovanni, ‘The rise of the Genoese civil rota in the XVIth century: the “decisiones de mercatura” concerning insurance’, in Vito Piergiovanni (ed.), The Courts and the Development of Commercial Law (Berlin: Duncker & Humbolt, 1987), 24–39.

One might assume that the university-educated officials at the court of the Consoli would have brought the attitudes, concepts, and even doctrine that they had learned as law students and professional lawyers to bear on the cases unfolding in the tribunal. Some scholars have given this increasing involvement of jurists a positive valence: the result was largely one of continuity, accompanied by ‘a technical refinement of language and concepts’.40 Vito Piergiovanni, ‘Genoese civil rota and mercantile customary law’, in Vito Piergiovanni (ed.), From Lex Mercatoria to Commercial Law (Berlin: Duncker & Humblot, 2005), 191–206, at p. 192. On the other hand, a commonplace in merchant manuals of the period is that the sophistry of the civil lawyers and their ius commune was entirely unsuited to mercantile justice and was to be avoided as far as possible, as it tended to unnecessarily complicate affairs and introduce new and pedantic requirements that mattered little to the pratical people of commerce: ‘full of quillets and distinctions, overcurious and precise … they doe more regard certain subtleties than the trueth of the fact or matter’, as the Anglo-Flemish merchant Gerard Malynes colourfully put it in 1622.41 Gerard Malynes, Consuetudo vel lex mercatoria, 3rd edn (London, 1685, originally published 1622), pp. 3–4. This attitude likewise resonates into the present, finding a modern-day counterpart, among others, in articulations of the lex mercatoria idea. A study of the court of the Consoli del Mare sheds further light on how these different legal attitudes and traditions actually interacted in practice, as part of a debate that is not without emotional charge and that even today tends to get mixed up with questions of professional pride and identity.