X. Military Jurisdiction in Habsburg-Hungary in 16–17th centuries (Summary)
325X. Military Jurisdiction in Habsburg-Hungary
in 16–17th centuries (Summary)
in 16–17th centuries (Summary)
After Buda, the center of the medieval Hungarian kingdom fell into the hands of the Ottoman Empire in 1541, the Habsburg military leadership had to reinforce the building of a new defence system on the territory of Hungary to protect both the imperial capital of Vienna (Wien) and the territories that remained under royal supremacy when the country was broken into three. Although the new borderfortress system organised by the central governance of the Court’s Military Council (Wiener Hofkriegsrat) inherited several characteristics of the earlier established Southern defence line, the political, social and economic changes taking place at the same time and right after the formation of the new borderfortress system, it definitely had more influence on the historical development of Hungary in the long run than the earlier changes in the Southern border area. The new anti-Ottoman fortress system brought into force by the second half of the 16th century was not created in the medieval border region of the Hungarian State but rather inside of it. The maintenance costs went up to hundreds of thousands of forints only half of which could be covered by the expenditure of the royal territories gradually growing smaller. This situation was further complicated by the very fact that the new defence system, provided that it really wanted to block the Ottoman expansion, which was the main threat of the early-modern Hungarian history, at least partly, had to fulfill those new financial requirements that were set up by the development starting in the middle of the 16th century and is referred to as a Military Revolution in the European war historio-graphy. The military reforms appearing in the Hungarian theater of war were urged by the leadership’s arrangements about the new defence system from Vienna and by the needs to strengthen the most important border fortresses with mercenary troops financed from foreign sources under the control of the Military Council. Although due to the results reached by the military leadership in Vienna the basic charac-teristics of the reforms did have an influence in the territories of the Hungarian kingdom, the development of the Hungarian military affairs followed a most special line in the 16–17th centuries. The researcher of the period, who compares the development of the military jurisdiction of the Hungarian kingdom in the Ottoman era (16–17th centuries) to the European way, may identify certain peculiarities of this process.
The military jurisdiction of the foreign (especially German) mercenary troops serving in anti-Ottoman Hungarian borderfortresses or arriving here occasionally on warfare matters showed significant differences from that of the Hungarian borderfortress soldiery. At certain points, however, they share similarities as well, which is due to the influence of the first on the latter. The differences derive from the diverse development and basic characteristics of the military layers with independent functions. In the long run, these are the factors that determined the development of their military jurisdiction, the stabilization of their legal practice and, at last but not at least, the formation of their war regulations that served as the basics of litigation.
326The German infantry arriving in Hungary in gradually growing numbers from the beginning of the reign of Ferdinand I had an almost completely established military jurisdiction and litigation practice system. They formed the so called „Landsknecht army”, which was organised as a result of the reforms initiated by emperor Maximilian I. One of its characteristics, which is most relevant regarding the examination of the Hungarian military jurisdiction, was that the soldiers were recruited from abroad and put into action especially in the fields, and, by taking advantage of the permanent warfares of the period earned their livings on fights. This meant that for shorter or longer periods they signed on for service in a certain colonel’s army and made money by fighting in the battlefields of Europe. Since they were recruited, the only persons they owed obedience to was their employer and commander, the colonel and his king by whom he was nominated. This contract was affirmed by an oath which the soldiers who newly entered the army put on the so called Artikelbrief, a collection of military regulations by the articles of which the colonel had absolute judicial power over the soldiers, i. e. he even had the right to decide about their life or death. His legal practice was backed up by an apparatus with a gradually forming and stabilising system, which brought decisions in the name of their commander under the laws of the document mentioned above.
Both the Artikelbriefs serving as the bases of military litigation and the judiciary system, as a result of the centuries-long development, began to perform well from the beginning of the reign of emp. Maximilian I. For since the 14th century the ensurance of the subordination together with the field- and warorder (Feld- und Kriegsordnung) of the mercenary army of gradually growing importance in the longer and longer military expeditions became possible only with the help of field- and warfare regulations which gave commands about the mercenaries’ obligations and their punishment in case of committing a sin during a military expedition. When the mercenaries signed on service, they obliged themselves to keep the warfare regu-lations under oath and accepted that in case they failed to obey any of the regulations, they would meet a punishment enacted by their employer-colonel, the practitioner of warfare laws. The formation process, through which the infantry of the German Empire gained a comprehensive military code at the assembly (Reichstag) in Speyer (1570) began with the noteworthy camp regulations (Feldordnung) of Frederick Barbarossa I (1158), then continued with the legitimation of the contracts and mili-tary codes of the German towns to further develop in the also remarkable Swiss and Hussite infantry code.
Lazarus von Schwendi’s „Articul auf die Teutsche Fußknechte” (1570) was prearranged by the decisions brought on warfare matters at the Imperial Diet (Reichstag) and also by emp. Maximilian I’s military reforms. For the mercenary „Landsknecht army” created by him needed strong regulations to warrant subordina-tion, thus the earlier field- and war regulations had to be exchanged with new, more general regulations. These are called Artikelbriefs to which the soldiers of the German infantry obliged themselves oath on the occasion of their muster. From the beginning of the 16th century the Artikelbriefs formed the bases of the military service regulations for the mercenary infantry, so, among others, the litigation over guilty soldiers was also established on them. The frequent military expeditions during the 327first part of the century assisted the Artikelbriefs in becoming perfect rather quickly. As a result emp. Maximilian II on 21 May, 1566 in Vienna released a military code for the German infantry arriving at the borders of Győr against Suleiman I that served as the immediate model of the Artikelbriefs of common validity legitimised four years later. The support of the Estates of the Realm (Reichsstände) did not at all mean that there was no more need to release new regulations which fitted the local conditions better, more over, it had a great importance in the spreading of Schwendi’s 74 articles. It is also worth mentioning that the collection was already published in 1571 and then several times later in the 16th century, thus it really became applicable as the first real „military codebook”. The proof of its significance may be that in spite of the military development in the period, not even the two big wars, the Ottoman war (1593–1606) and then the Thirty Years’ war (1618–1648), could remarkably change it. Finally, its role was taken over by the 60-point-code system of Leopold I (1673), which was to be considered by the total imperial army.
Simultaneously with the development of the Artikelbriefs, there began to form a judiciary organisation the members of which passed sentences on their sinning comrades in the name of their colonel, the representative of military jurisdiction. It was the „Schultheiß” (military judge), first appearing in the camp regulations (Feldordnung) of Tyrol (1499), who took the leading position in the judiciary organisation. His office was transferred to the organisation of military justice from that of civil rights. In the sessions lead by the „Schultheiß” (see above) any indictment was represented by the „Profos”, whose position, originally coming from Burgundy did not form part of the Schultheiß’s judicial. The members of it beside the „Schultheiß” were the recording secretary (Gerichtsschreiber), the court administra-tor (Gerichtsweibel) and the twelve jurors (Gerichtsgeschworner). For in a trial, the „Schultheißengericht” (military judge’s court) brought its decisions under the regulations of the Artikelbrief, which were carried out by the „Profos” being in charge of police and economic matters as well, and also by the regimental hangman (Nachrichter, Henker). At the same time, by the middle of the 16th century, there had formed a new way of litigation practice in the military jurisdiction system for the infantry, which became known as „Kriegsrecht mit den langen Spießen”, i. e. „running the lances” (lándzsafutás). At the regiments that accepted this form of the military jurisdiction after they had been over their muster, there was no need for a judge, since the society of the soldiers brought their decisions under the regulations of the Artikelbrief themselves. The decision was either acquittal or conviction, the latter of which always meant capital punishment. The condemned person running in the narrow street formed by the soldiers standing in two rows, facing each other was slain with their lances. The inhuman practice of „running the lances” was applied in Hungary, too, in the 1530’s, but was banned by the end of the 16th century for its cruelty, although it did not completely disappear. A milder form of the punishment was preserved in the so called „Spießrutenlaufes” („running the gauntlet”; vessző-futás), which was restored during the period of the Thirty Years’ war. All the details of the execution of the sentence remained the same, except for one thing: lances were replaced by canes.
328Due to the social composition of the mercenary cavalry army, the development of their military jurisdiction was considerably slower and its establishment followed a different line from that of the infantry. The members of the 16th century German cavalry were aristocrats almost without exception, just like their predecessors in the Middle Ages. Therefore, understandably enough, they could not be expected to obey the same regulations as the infantrymen with different social background. Thus, the cavalrymen formed the practice of putting an oath on the Bestallung, i. e. the contract they signed for the recruiter captain appointed by the monarch when they joined the mercenary army, which, besides giving instructions about various penalties to be enforced in certain cases, determined the ways of legal practice as well. These regulations, similarly to the Artikelbriefs of the infantry, reached such a high level of perfection that the Imperial Diet (Reichstag) could legalise an independent code of regulations (Reiterbestallung, Reiterrecht) for the cavalry as well in Speyer, 1570.
The military jurisdiction of the German infantry and cavalry put into action in anti-Ottoman battles in the fields of Habsburg-Hungary completely fitted the general norms we have discussed briefly above. To justify this without a lengthy argumentation it is enough to refer to the works of Leonhard Fronsperger, who gained most of his experiences in the military expeditions of 1542 and 1566 in Hungary serving as a „Schultheiß”, and thus could provide us with an overall description of the military jurisdiction and legal practise system of the German mercenaries. At the same time, however, in the military jurisdiction of the mercenary armies serving in the borderline fortresses through long decades their were several factors that indicated deviations from the general principles put down by Fronsperger. The main reasons for those deviations could be identified in the circumstances different from those of the camp service, which influenced the jurisdiction of the German military forces, no matter which borderline fortress of Hungary they were replaced to.
The service in these castles meant long periods spent in the same place and, as such, made some sections of the Artikelbriefs originally set up for soldiers serving in military camps irrelevant, i. e. those that controlled the subordination and field regulations of the military forces on constant move. Instead of these, however, there was a need for new regulations that determined the elementary conditions of life shared with the civil society inside the fortress. Moreover, it was necessary to create some articles that ensured the defence of the fortress and then, later, to set up an overall regulation code that fitted the circumstances of life in the castle better. This is how the Artikelbriefs sometimes so different from those accepted at the Imperial Diet (Reichstag) in Speyer (1570) were born. They began to function as the „military codebook” of the borderline garrisons. In 1566, for instance, based on the earlier fortress-regulation, Ferdinand I released a code containing 40 points for the use of the German borderline soldiers in Komárom, which was reaffirmed later without making the slightest change by his successor, Matthias II in 1609. The German infantrymen of Croatian and Wendish border areas took the oath on similarly special regulation codes, moreover, in the fortress-town of Győr a so called Polizeiordnung („police regulation”) was initiated in the first half of the 17th century to decrease the hostility between the German and Hungarian military forces and the civilians and aristocracy 329of the town. Besides, they had the purpose to increase the authority of the captain general of Győr, too.
The fact that some foreign armies were sent off into borderline fortresses of different sizes had a considerable influence not only on the Artikelbrief serving as the base of litigation, but also on the legal practice. Because of the limited capacity of the fortresses and the consideration of certain strategic points it happened sometimes that one or even two complete German battalions were stationed only in the most signifi-cant fortresses. In other places, it was the smaller borderhouses around the fortress that accommodated the units of the battalion, just like the mansions surrounding the fortress in Szendrő or the guard-dwellings (Wachthaus) and mining towns near Zólyom. These German borderline soldiers, since they belonged to the battalion, served under the authority of the captain of the main fortress, thus they did not owe obedience to the usually Hungarian captain of the smaller castles in judicial matters. Their legal affairs were represented by the „Schultheiß” living in the main fortress, whose work was assisted by 3-4 jurors (Gerichtsgeschworner), the court administra-tor (Gerichtsweibel) and the recording secretary (Gerichtsschreiber). Consequently, instead of the twelve jurors prescribed by Fronsperger for a regiment, fitting the needs of the smaller battalions in borderline areas, the military leadership in Vienna financed only four jurors. Still, it did not mean that the number of the law-court’s staff was also limited down. Beside the jurors, the fixed number of the law-court (12) was completed by officers experienced in judicial matters. It was also common not to use a court administrator, since his function could be taken over by the recording secretary or one of the jurors.
Those, who were stationed in guard-dwellings in the borderline areas obviously could not turn to the law-court controlled by the captain of the main fortress with all their legal affairs, since most often they were 10–20 kms far from these headquarters. Thus, gradually a new practice came into operation, i. e. that the disputes of little importance were handled and completed by the commandant of the territory together with his officers, and only the significant cases, first of all the ones requiring legal procedure were discussed in front of the jury presided by the „Schultheiß”. Besides, to perform the duties of the „Profos” serving in the main fortress and being responsible for the military judicial affairs and the order inside the fortress the so called Steckenknecht was appointed to substitute him in the smaller castles or guard-dwellings.
After Buda was captured by the Ottomans, the most noteworthy social change of the 16th century was that the borderline garrisons to unite in a new, homogenous layer. By that time the German infantry and cavalry serving in the territory of Habsburg-Hungary already had a well-established judicial- and legal practice system. In addition to the fact that the two military layers of different nationalities enjoyed coexistence, the foreign captain generals supervising the Hungarian borderline fortress system had a significant role in the establishment of the judiciary system and legal practice for the new Hungarian political layer on the basis of the foreign model of jurisdiction. These changes had certain preliminaries in the Hungary of the Middle Ages already, cf. among rather different political, military and social conditions.
330In the second part of the 15th century, due to the expeditions of king Matthias I’s famous army, the mercenary got a most important role. The Hungarian sovereign possessed a stable mercenary army to be deployed especially in the battlefields; its structure was similar to that of the Western military forces and the subordination and fieldorder were regulated by presumably the same rules as the contemporary German mercenary armies. This point of view is affirmed by the parliamentary decrees of king Sigismund I and Matthias I’s times, since they were similar to the resolutions brought by the Hungarian Estates and contained provisions about offences committed by the soldiers. As a supportive document, the brief „military codebook” written in German and released in Bártfa for the mercenaries joining the army of the sovereign in the second part of the 15th century should also be mentioned. The field regulations that belonged to the same group as the military regulations of the towns were excellent proofs of the fact that the development of the medieval Hungarian royal mercenary army followed the European procedure. This can be further justified by the article of the brief code that prescribed „obedience towards the superiors” as the principal regulation for the soldiers. In practice it meant the acknowledgement of the captain’s legal authority in commanding and subordination matters.
The principle of the captain’s supremacy in the jurisdiction, at least in military affairs, presumably prevailed among the soldiers defending the double borderfortress system of Southern Hungary as well. Although more research is needed to be done to get a definite answer to this question, it is worth to draw attention to some points of great importance here. The mercenaries (mainly of Southern Slavic origin) defending the borderfortresses in the South got their payment from the monarch, still, the system and functions of their troops showed significant differences from those of the European mercenary armies or even from the those of king Matthias’ army. For the borderline soldiers were mercenaries whoses lifestyle involving the defence of the castle (and also forays which required special tactics) differed from that of the mercenaries serving in fieldcamps to a great extent. Primarily, because their employment as „mercenaries” was not possible from the imperial expenditure for a longer time period. Consequently, they could not formulate such a homogenous military society as was formed by the Hungarian borderline garrisons bearing certain elementary signs of standardisation on their layer later in the 16th century. Yet, their existed a certain separate military grouping in the sudden border areas before the battle of Mohács, when the country was torn into three pieces, that gained the privilege independent jurisdiction by the beneficial decree of Louis II, 1525. This privilege referring to the Danubian naszádists and the appointment of a judge to the captain’s post with the right of full jurisdiction may be in connection with the fact that the riverfleet of the Southern border areas formed an isolated, stable and mobile grouping that could be relied on in ensuring the defence of the country, although it became more and more difficult. The naszádists had a special function in the new defence-line from the middle of the 16th century, after the collapse of the Southern borderfortress system. This fact probably encouraged the reaffirmation of their medie-val privilege (see above) in 1554, the result of which was that in Komárom there military judiciary system ultimately stabilised and became institutional from this time on, the army’s judge (seregbíró) in the name of the naszád’s captain, then later in the 331name of the captain general’s deputy (Obrist-Leutnant), with the involvement of the naszád-officers, brought his verdicts in official trials. The process of legal practice was determined not only by the privilege provided by the king, but, first of all by the customary that had formulated in the course of time. A unique element (unknown for the German jurisdiction) of it was that in case the defendant was discontented with the verdict, he could appeal to the captain of the fortress of Komárom.
Simultaneously with the development of the new borderfortress system, the process in which the Hungarian borderline garrison soldiery became an integral and definitely independent component of the Hungarian society also started from the middle of the 16th century. The Hungarian borderline garrison society, although living in coexistence with the German garrison society, showed significant differences in its character, which could be traced in the diverse structure of their military jurisdictions as well. Although the Hungarian borderfortress soldiers, similarly to their foreign comrades (at least in the 16th century) earned their livings by military service and got their payment from the monarch, their way of life can hardly be compared to that of the traditional mercenaries of the period. Firstly, since they were obliged to stay in the same place for long periods of time, their lifestyle was influen-ced by several features of the civil community they lived together with. Secondly, the heterogeneous composition of their society lead to clashes of interests. The new military force that was created to compensate the Ottoman supremacy was comman-ded by a leadership of high nobility, the officers were the members of either the small nobility or the peasantry and the soldiers were all peasants. If we narrow down the problem from the viewpoint of this research, the conclusion can be drawn that the members of the military society with of without rank fought for the privilege of independent jurisdiction. To gain this would have meant that the same legal practice had applied to the diverse layers of society with no respect to rank – at least in the form of community privilege. Although the realisation of this seemed to be completely impossible to the Hungarian nobility, it was successfully executed by the end of the 16th century.
The stabilisation of the independent military jurisdiction of the Hungarian bor-derfortress garrisons would have been highly encouraged by similar regulations to those of the German camp- and fortress mercenary armies known as Artikelbriefs the first attempt to compile such a „jus militare Hungaricum” was probably carried out by captain general Lazarus von Schwendi in 1566, while he lead an expedition in North Hungary. The coincidence of the names and times in the Hungarian codebooks had hardly happened by chance. Lazarus von Schwendi, the most prominent general and tactician of his age, considered it to be his own duty to provide the Hungarian military forces with a similar standardised code of regulations as that of the German army.
The „military codebook” preserved for posterity was written in Hungarian and Latin and compiled with the assistance of Hungarian captains in order to fit the Hungarian conditions on the bases of the contemporary Artikelbriefs released by Ferdinand I. Capt. gen. Lazarus von Schwendi, most probably, proposed to take over and rework a more general German regulation code. This is how the first comprehen-sive „service-regulation code” was created for the Hungarian infantry and cavalry and since it was established during a military expedition lead against John Sigismund, 332Prince of Transylvania, it contained many articles referring especially to field regula-tions. It is necessary to take a short note of this latter factor, because it caused difficulties in applying the code to different circumstances, i. e. to soldiers serving in fortresses, though by the slight changes of the original regulations the articles could be made to fit the conditions of a borderline fortress, and since this method was often used with the German Artikelbriefs as well, there was no point in doubting the justifiability of the changes. Finally, however, the use of the code could not spread widely, which was due to the resistance of the Hungarian Estates to acknowledge it and not to the articles overwhelmingly referring to field regulations.
Although emperor Maximilian II and Rudolph II gave their support to the official acknowledgement of the code and the affirmation of its legitimacy by decrees, the resistance of the Hungarian Estates prevented Schwendi’s Artikelbrief created for the borderline armed forces from becoming legal „military codebook” of the Hungarian borderline garrisons every time. The attitude of the nobility insisting on their exclu-sive privilege of independent jurisdiction was completely justifiable, since this was the only way of avoiding the same privilege to apply to everybody with no respect to rank. The acknowledgement of the military code was not affirmed by any parliamentary provision later in time either and, unlike the Artikelbriefs of Speyer (1570), it was never released in printing. Thus, the widespread application of the regulation system was retarded but could not be thwarted. After the encouragement of the Supreme War Conference (Hauptgrenzberatung) in Vienna, where one of the main roles was taken by Lazarus von Schwendi again, the Estates of Central Austria (Innerösterreich) soon acknowledged the „military codebook” and initiated in it as the comprehensive military regulation system for the Southern Slav borderline garrisons controlled by them, for whom they translated the document into Croatian and Wen-dish in spring, 1578. Its beneficial use was quickly justified by the infantry and cavalry of the new fortress of Bajcsavár who, in the same year, put an oath on the code. Later, in the second half of the 17th century, the same articles were used to regulate the Southern Slav infantry and cavalry.
In Habsburg-Hungary, speaking about her territories in a narrow sense, the mili-tary regulation system could not become an integral base of the borderfortress jurisdiction because of the resistance of the Estates. Although their use was proposed several times in Eger as well as in other fortresses of North Hungary, when the ver-dict was brought, the court-martial could hardly be expected to refer to a legal docu-ment that was considered to be illegitimate nation-wide. The records of verdicts preserved for posterity cited the statutory of the country and also Stephen Werbőczy’s famous Tripartitum. Thus, Schwendi’s military regulations were finally accepted by the country’s Estates in 1559, but only for the borderline garrisons and it was also declared that the Hungarian soldier had his military rights (jura militaria) as well, which might legalise the sentence past on him. Still, this military regulation system can be considered to be the „military codebook” of the 16–17th century Hungarian cavalry and infantry (and not primarily that of the borderline armed forces), just like the Artikelbrief of 1570, which was the codebook of the German mercenary army. For the Hungarian horse- and infantrymen serving in the imperial mercenary armies in 333foreign battlefields put their oath on those military articles, when they were taken into service.
Although the spread of the standardised military regulation code of the borderline garrisons’ society could be thwarted by the Estates, their resistance could not stop the development that lead to the stabilisation of their independent jurisdiction and the establishment of their judiciary system by the end of the 16th century. The legal authority of the borderfortress captains, which had already existed before the fall of Mohács (1526), too, was further stabilised by the decrees passed by the monarch as well as by the so called Bestallungen, the more advanced versions of which already gave orders about legal practice, too. Under the regulations of these the captains, similarly to the„Schultheiß” bringing verdicts in the name of the colonel, were obliged to involve experienced officers and legal exports in their judicial practice. All this, however, did not entail either the simultaneous appointment of a military judge or the establishment of a judiciary staff similar to that of the „Schultheiß”. The restoration of the judge’s position by the judging forums controlled by fortress- and borderline area captains could only be realised after the stabilisation of the border-fortress system, when at the same time, since the number of legal affairs suddenly grew, it became essential, too.
From among the borderline headquarters that were the pillars of the anti-Ottoman defence system, the post of the „judex bellicus” (judge of military affairs) first appeared in the territories of North Hungary. The time and place may sound familiar: Ungvár, Capt. gen. Lazarus von Schwendi’s military camp, summer, 1566. General Schwendi, besides elaborating the standardised version of the Hungarian military code, introduced a new military post as well that had been used only occasionally beforehand. For the end of the military expedition lead against the Prince of Transylvania did not stop Francis Wékey in his holding the post of the „judex bellicus”, au contraire, by some slight changes it became an officially acknowledged post in the jury of North Hungary’s captain general.
In other territories of the land it took longer for military office-holders similar to the „judex bellicus” of North Hungary’s general to gain the same right of acting like „experts of low” in the name of their superiors. Partly, it was due to the fact that the stabilisation of the borderline headquarters system was completed only by the 1580’s and, at the same time, the legal affairs deriving from conflicts with foreign borderline soldiers and the civil community of the fortresses could not be settled by the captains themselves in many places. Thus, it was also encouraged by, the Supreme War Conference of 1577, the appointment of judges of military affairs was needed primarily in the bigger fortress-towns (Festungstadt), such as Győr or Érsekújvár, which were borderline headquarters as well. By the beginning of the 1590’s the process was successfully completed: in these fortress-towns the verdicts were brought by the judge’s of the captain general’s court-martial. Besides the law-suits of the soldiers of the headquarters, the jury of the captain general decided about the appeals received from the courts of smaller borderfortresses as well. In the second part of the 16th century there gradually formulated some peculiarities in the legal practise referring to the Hungarian borderline garrisons that originated from the special structure of the Hungarian borderfortress system and the conditions determining its 334characteristics. Firstly, the court-martials, in case of „causa criminalis” such as theft, homicide or fornication, could pass sentence only with the previous consent of the borderfortress’ captain general or his deputy. Secondly, for the defendant discontented with the verdict of the fortress-captain’s jury, there was a chance to appeal to the supreme war court of the captain general of the borderline area. It was also the task of the second appeal court to pass judgement in the law-suits of borderline sentinels or field officers suing each other. Moreover, due the others of Capt. gen. Sigismund Forgách in 1613, the captain general’s court-martial in North Hungary became the appeal court not only for the borderline armies, but also for the town courts of the Haiduks (originally Hungarian armed herdsmen) settled by Prince Stephen Bocskai. Besides all these, there is another fundamental difference between the legal practice systems of the Hungarian borderline armed forces and the German mercenaries. While, in case of the latter, the development of the military jurisdiction of the cavalry and infantry followed two different lines, in the Hungarian practise both types of armies were obliged to obey the law of the same jurisdiction controlled by the captain. Although (similarly to the German cavalry) there were more representatives of the nobility among the Hussars then the infantrymen, who were mostly of peasant origin, the domestic development of the two layers did not diverge so much as to necessitate the separation of the jurisdiction.
In the borderfortresses (e. g. Fülek, Léva), where the mercenaries serving the king lived together with a considerable number of noblemen, beside the captains general’s court-martial the law-expert’s duties were practised also by a privately paid legal executive, the so called „troop judge” (seregbíró), who is referred to as „judex bellicus” as well in Latin sources. In the smaller borderhouses, however, these duties were kept on being carried out by the captain or his deputy, although his work almost everywhere was assisted by a recording secretary („juratus notarius bellicus”), which was the Hungarian equivalent of the German Gerichtsschreiber. Jurors privately paid by the Military Council were applied only by the court-martials of Győr and Kassa, while the posts of the „Profos” and his assistants were not even taken over by the system of the Hungarian jurisdiction. While the tasks of the first were carried out by the recording secretary, the duties of the „Profos” were shared by the sergeant (Wachtmeister), the castellan and the dungeonman. The system of the Hungarian jurisdiction, thus, was much simpler then that of its German model, just like the authority of the captain, which was also more restricted then that of their German companions.
By the beginning of the 17th century, the Hungarian borderline garrisons had gained the privilege of independent jurisdiction in spite of the resistance of the Hunga-rian Estates, which, besides the exemption from feudal taxation and authority, provided then with the freedom to work pubs and meals and also with the right to practise their religion freely. Thus, it may not be an exaggeration to consider this privilege to be the most fundamental element and guarantee of their social indepen-dence. Neither the Estates doubted it in cases of military affairs and conflicts within their societies. The nobility of counties, however, severely and permanently attacked the borderline garrisons’ right of independent jurisdiction above all on the occasions of their looting and harassing the peasantry. At the same time, though, these counties, 335while protecting their original position taken under the Turkish occupation of the land, could not have survived without the defence of the borderline armed forces. For the leadership of the latter involving the captain and the officers came from the same layer of lower nobility where the representatives of the counties criticising and attacking the rights of the borderline garrisons. There was hardly any chance to find away out of the „circulus vitiosus” of these social interests contradicting each other and often themselves, too, and thus the hope for putting an end to the permanent clashes and conflicts was little. The outcome of the disputes between the borderline garrisons and the counties was always determined by the momentary conditions and the power relations of the opposed.
For the time being, it is difficult to give a definite answer to the question of efficient the sanctions of the military jurisdiction imposed on the borderline garrisons harassing the peasantry were. On the basis of the material found (and examined so far) in family- and county archives and also in that of central government’s agencies it can be clearly drawn that these crimes, deriving from the clash of interests described above, were not judged severely enough. The Hungarian Estates even had the right to create parliamentary acts that were used against borderline soldiers in case of looting, when they were not treated like soldiers but like criminals in the general sense, whose affair needed to be discussed in front of county’s court. The representatives of the nobility, however were soon convinced by the insurrection of the captains of border areas that they had better not impose sanctions on those, who ensure their defence and interests under the Turkish occupation. They realised that the best thing they could do was to shut their eyes to the damage caused by the soldiers to their subjects and thus, indirectly, to them, and acknowledge that the soldiers, most of the times really acting like bandits, were punished by the jurisdiction of the borderfortress-captain or the borderline-area-headquarters captain general.
The anti-Ottoman reoccupational wars at the end of the 17th century opened a new era not only in the development of Hungary but also in that of the Hungarian jurisdiction and military affairs. Since the fights stopped in the borderline areas and in the South the new defence system was strengthened with the establishment of a frontier zone, the Hungarian borderline garrisons gradually ceased to function, which, at the same time, meant the end of their judicial privilege and military jurisdiction as well. Instead of the survival of the borderline garrisons, who perfectly carried out their military duties in the border areas, the new century opened a free day to the establishment and development of a standing Hungarian army that was three integrated into the body of the Imperial Military Forces. The improvement of the jurisdiction was also ensured by the German model that had already born all the characteristics of the standing army. And the new type of court-martials (Auditoren-gericht) that replaced the Schultheiß’s courts in the 17th century really projected the structure of the military jurisdiction of the standing armies.
Ads a summary: it definitely cannot be stated that the Hungarian military juris-diction’s development in the 16–17th centuries, in spite of the deviations from the German military jurisdiction and the early stage of the legal system’s development together with the peculiarities of the legal practice, went into a dead-end street. More precisely, it followed a special line that fitted the local conditions and possibilities. 336For the independent jurisdiction in its form created among anti-Ottoman circumstan-ces completely fitted the structure of the defense system, the needs and possibilities offered by the Hungarian military society going its own way of development due of the borderline circumstances, i. e. all the conditions of the border area and it was not at all less efficient in enforcing the obedience regulations in the garrisons, them the German jurisdiction in protecting the discipline of the imperial mercenaries. The 16–17th century Hungarian military jurisdiction may be views as the reflection of the borderline area society, since its development, structure and legal practice differed its German model inasmuch as the characteristics of the Hungarian borderline garrisons from those of the standing mercenary armies not yet stabilised, but still represen-tatives of further military development.
Translated by Zsuzsanna Mitró
