The Use of Summary Procedure
The tribunal of the
Consoli,
like its medieval forebearers, had been granted the privilege of using summary procedure.
1 Lo Bartolo, ‘The consoli del mare’, pp. 184–5. This was a truncated form of judiciary procedure designed to expedite the lengthy and expensive process of going to court. Summary procedure remains somewhat understudied, and recent work is only just beginning to reveal the variety of forms that it could take.
2 Simona Cerutti, Giustizia sommaria: pratiche e ideali di giustizia in una società di ancien régime (Milan: Feltrinelli, 2003); Cerutti, ‘Fatti e fatti giudiziari’; Roberto Zaugg, ‘Judging foreigners. Conflict strategies, consular interventions and institutional changes in eighteenth-century Naples’, Journal of Modern Italian Studies 13 (2008), 171–95. It originated in the medieval period and owed its existence to the precepts of canon law, which placed foreigners, including merchants, in the category of the ‘weak’, and thus worthy of special dispensation.
3 Mario Ascheri, ‘Il processo civile tra diritto comune e diritto locale da questioni preliminari al caso della giustizia estense’, Quaderni Storici 34 (1999), 355–87, at p. 363; Vito Piergiovanni, ‘Il mercante e il diritto canonico medievale: “mercatores in itinere dicuntur miserabiles personae”’, Atti della Società Ligure di Storia Patria, nuova serie 52 (2012), 617–34. Particularly important in the establishment of summary procedure were the fourteenth-century papal decretals
saepe contingit (promulgated somewhere between 1312 and 1314) and
dispendiosam (1312).
4 Javier Belda Iniesta, ‘The Clementines Dispendiosam and Saepe Contingit and the evolution of the medieval summary procedure’, Journal on European History of Law 10 (2019), 46–67, at p. 58. These both described summary procedure as ‘plain, without the clamour and form of a trial’ (
de plano, sine strepitu e forma iudicii).
5 Belda Iniesta, ‘The Clementines Dispendiosam and Saepe Contingit’, p. 54. Neither document was very clear about what exactly should be omitted, however, and summary procedure was therefore primarily defined by what it was not, rather than what it was.
6 Charles Donahue, ‘Procedure in the courts of the Ius Commune’, in Wilfried Hartmann and Kenneth Pennington (eds), The History of Courts and Procedure in Medieval Canon Law (Washington, DC: Catholic University of America Press, 2017), 127–58, at p. 116; Francesca Trivellato, ‘“Usages and Customs of the Sea”: Étienne Cleirac and the making of maritime law in seventeenth century France’, The Legal History Review (2016), 193–224, at p. 198. Summary procedure soon spread throughout Italy and thence to the rest of Europe, and came to be seen as an efficacious solution to the problem of commercial justice where cases needed to be resolved quickly.
7 Ascheri, ‘Il processo civile’, p. 361. This was especially urgent as litigation increased in line with greater literacy and social mobility. In some places, it is clear that it was deployed selectively and strategically as a political-economic tool in order to favour certain groups: in Venice, for example, English litigants were unable to access summary procedure as the Venetians (correctly) identified them as the chief threat to their own commercial interests in the Levant.
8 Maria Fusaro, ‘Politics of justice/politics of trade: foreign merchants and the administration of justice from the records of Venice’s Giudici del Forestier’, Mélanges de l’Ecole Francaise de Rome 126 (2014), 139–60, at pp. 145–7; Ascheri, ‘Il processo civile’, p. 361. In some courts, the procedures were very truncated indeed, with the two sides presented orally, and without either the production of witnesses or the intervention of laywers to represent the sides.
9 Cerutti, ‘Fatti e fatti giudiziari’, p. 415. In other cases, the ‘form of a trial’ was more evident, with the presentation of a libel by the plaintiff , the production of evidentiary documents, the examination of witnesses, and the cross-examination of these by means of interrogatories (i.e., lists of questions to be put to the witnesses), thus making affairs far less ‘summary’.
10 Calafat, ‘La somme des besoins’, p. 9. Attorneys might also be employed to argue the case. The summary procedure on offer at the court of the
Consoli was of this latter kind.
Technically, judges were not bound by strict rules in forming their judgements but were free to interpret evidence with the sole purpose of establishing the truth, answering to their conscience alone.
11 Andrea Addobbati, ‘When proof is lacking: a ship captain’s oath and commercial justice in the second half of the seventeenth century’, Quaderni Storici 153 (2016), 727–41, at p. 730. Summary justice based itself on ‘the truth of the matter’ and ‘the nature of things’.
12 Cerutti, ‘Fatti e fatti giudiziari’, p. 415. The utility of the judicial process lay not in the full reconstruction of an indisputable truth, but rather in the cessation of hostilities between parties.
13 Cerutti, ‘Fatti e fatti giudiziari’, p. 417; Addobbati, ‘When proof is lacking’, p. 727. Simona Cerutti has argued that these imperatives represented a distinct judicial attitude drawing upon a framework originally provided by Thomas Aquinas and theories of natural law.
14 Cerutti, ‘Fatti e fatti giudiziari’, p. 417. In alluding to the ‘nature of things’, it embodied a view of the world which saw each thing moving towards a full expression of itself which was inherently just. The ‘equity’ that this justice guaranteed was not an equality of subjects, which would have been a contradiction in terms, but rather responded to each subject’s concrete essence. Such jurisprudence was clearly capable of regarding practices as fonts of their own legitimacy.
15 Cerutti, ‘Fatti e fatti giudiziari’, p. 420. In concrete terms, it is easy to see why this procedure would have appealed to commercial practitioners, who might thus achieve a swift outcome responding to commercial practice and avoid becoming embroiled in abstract points of law. Judgements based on the ‘nature of things’ brought to the fore the central mercantile concept of good faith (
bona fides), a viewpoint that considered what was ‘reasonable and equitable in law as the legal consequence of what was considered reasonable and fair behaviour in trade’.
16 Vanneste, Intra-European Litigation, pp. 4–5.