跨学科历史杂志, LIV:1 (夏天, 2023), 67–81.
Riccardo Rosolino
Preserving Trust: Strength of Contracts and
Abuses of the Spanish Inquisition The impacts of the
presence of the Tribunal of the Spanish Inquisition in the
Kingdom of Sicily were manifold, affecting politics, 商业,
and society. In addition to monitoring and supressing political
and religious dissent, the tribunal played a central role as a civil and
criminal legal court at the disposal of its close associates. The exception-
ally cumbersome and threatening presence of the tribunal prompted
prammatiche-concordie (royal decrees) 在 1580, 1597, 和 1635, 哪个
represent the Spanish monarchy’s steps to safeguard the coexistence
of the secular court and the Holy Office.1
The monarchy’s goal was to protect those who feared the tri-
bunal’s economic repercussions, specifically relating to contractual
协议. Those closely associated with the Inquisition could
exercise the privilegium fori (privilege of forum, or the entitlement
to have legal issues settled in the tribunal’s court by inquisitorial
Riccardo Rosolino is Associate Professor of Modern History at the University of Naples—
L’Orientale. He is author of Countervailing Powers: The Political Economy of Market, before and
after Adam Smith (占婆, 瑞士, 2020); and The Right Price: Markets and Justice in a City of
Ancien régime (Corleone, 16th–17th centuries) (Bologna, 2011).
The author wishes to express gratitude to the anonymous reviewers of this article for
their critical reading and to Marco Cavarzere and Rodolfo Savelli, to whose suggestions
the final version of this article owes a great deal.
© 2023 by the Massachusetts Institute of Technology and The Journal of Interdisciplinary
历史, 公司, https://doi.org/10.1162/jinh_a_01974
1 Vito La Mantia, Origine e vicende dell’Inquisizione in Sicilia (Turin, 1886); Carlo Alberto
Garufi, Fatti e personaggi dell’Inquisizione in Sicilia (Palermo, 1978); Henry C. Lea, The Inquisi-
tion in the Spanish Dependencies (伦敦, 1922); William Monter, Frontiers of Heresy: The Span-
ish Inquisition from the Basque Lands to Sicily (剑桥, 1990); Francesco Renda, L’inquisizione
in Sicilia. I fatti. Le persone (Palermo, 1997); Melita Leonardi, Governo, istituzioni e inquisizione
nella Sicilia moderna. I processi per magia e stregoneria (Acireale-Rome, 2005); Maria Sofia
Messana, Inquisitori, negromanti e streghe nella Sicilia moderna (1500–1782) (Palermo, 2007); Valeria
La Motta, Contra haereticos. L’Inquisizione spagnola in Sicilia (Palermo, 2019); Giovanna Fiume,
Del Santo Uffizio in Sicilia e delle sue carceri (罗马, 2021). For the political and institutional
conflicts connected with the jurisdictional sphere of the Holy Office, see Vittorio Sciuti Russi,
Astrea in Sicilia. Il ministero togato nella società siciliana dei secoli XVI e XVII (Naples, 1983), 139–
171; idem, “Inquisizione, politica e giustizia nella Sicilia di Filippo II,” Rivista storica italiana,
CXI (1999), 37–64; Manuel Rivero Rodríguez, “La Inquisición española en Sicilia (Siglos
XVI a XVIII),” in Joaquin Pérez Villanueva and Bartolome Escandell Bonet (编辑。), Historia
de la Inquisición en España y América (Madrid, 2000), 二, 1033–1222.
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68 | R I C C A R D O R O S O L I NO
法官, who were able to prosecute any individual without excep-
的). By waiving this privilege during the negotiation of contracts,
tribunal officials and familiares (familiars, collaborators who were
cloaked in secrecy) could guarantee to the other parties a contract
that their agreement could not be overruled by the tribunal. 这
act of waiving this privilege could be used effectively, 例如,
to implement one’s own financial strategies. 此外, 因为
the world of business was driven by precise rationales, such forms
of guarantee were often called for.2
This article addresses two key issues relating to Sicily during
the Spanish Inquisition. 第一的, what types of guarantees were
offered to individuals who contracted business with tribunal offi-
cials and familiars? To what legal means could individuals resort to
protect themselves against the use of the privilegium fori? 第二,
how cogent were contracts in a society disciplined by different
types of justice based on multiple legal systems?
THE EFFECTS OF THE INQUISITION ON CONTRACTS IN SICILY The
introduction of the Tribunal of the Holy Office into Sicily at
the beginning of the sixteenth century rendered the process of jus-
tice extremely dubious and murky. The tribunal was imposed as
an extraordinary judicial power, directly dependent on the king,
with vast ideological clout and entitled to proceed against anyone,
including churchmen and nobles. The Holy Office relied on the
complicity of a network of a deliberately unspecified number of
familiares. In addition to their preferential court, the familiars also
benefited from a licence to carry weapons, numerous tax exemp-
系统蒸发散, and exoneration from both military service and hefty
municipal rates. They played a decisive role in the control that
the Inquisition managed to exert throughout Sicily.3
2 Paolo Prodi, Il sacramento del potere. Il giuramento politico nella storia costituzionale dell’Occidente
(Bologna, 1992); 理查德·H. Helmholz, The Spirit of Classical Canon Law (雅典, Ga., 1996),
145–173; Alain Supiot, Homo juridicus. Essai sul la fonction anthropologique du Droit (巴黎, 2005),
146–156; Wim Decock, “Trust Beyond Faith. Re-Thinking Contracts With Heretics and
Excommunicates in Times of Religious War,” Rivista Internazionale di Diritto Comune, XXVII
(2016), 301–328; Marco Cavarzere, “Regulating the Credibility of Non-Christians: Oaths on
False Gods and Seventeenth-Century Casuistry,” in Andreea Badea, Bruno Boute, Steven
Vanden Broecke, and Cavarzere (编辑。), Making Truth in Early Modern Catholicism (阿姆斯特丹,
2021), 63–84. Regarding familiars, see Gonzalo Cerrillo Cruz, Los familiares de la Inquisición
española ( Valladolid, 2000).
3
(2004), 82.
Sciuti Russi, “La Inquisición española en Sicilia,” Studia historica, Historia moderna, XXVI
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P R E S E R V I NG T R U S T
| 69
Protests and resistance emerged immediately after the intro-
duction of the Holy Office into the kingdom. A petition sent to
King Ferdinand by the Parliament insisted on limiting the power
of the Inquisition’s officials and for guarantees to be given to cred-
itors who were unable to collect from debtors whose assets had
been confiscated by the Inquisition. The protests did not elicit
the desired results; Ferdinand merely reduced the number of
familiars.4
Agreements and contracts made between Christians and Juda-
izers (those who had faked conversion to Catholicism) became a
legal problem. When such neophytes became entangled in inquis-
itorial nets, their property could be “confiscated and devolved as
restitution for the heresies committed by neophytes and Jews, ene-
mies of the Catholic faith”; anyone who had dealings with them,
and who expected to collect debts from them, were forced to
“make objections and litigate” with the tribunal. This situation
produced disastrous results and led to a request to adopt a measure
ensuring that obligations to “natural” Christians should be given
“preference” and that their claims were settled by drawing on
any confiscated assets. The problem was anything but new; 这
same request had already been made to King Ferdinand in 1514,
albeit without leading to any evident result.5
A further request to the emperor was made to curb the Holy
Office’s malfeasance in the confiscation of assets. Debtors under
inquisition—or those already condemned—were often harassed
and blackmailed by the officials of the Holy Office, even if no
remaining debt was owed. This situation created bad blood and
discontent, as well as grievous prejudice. The emperor yielded
only on certain conditions, namely that the persons involved were
4 On the practice of confiscations, see Henry Kamen, “Confiscations in the Economy of the
Spanish Inquisition,” Economic History Review, XVIII (1965), 511–525; Vincenzo Lavenia,
“Avidi inquisitori? Tribunali della fede e denaro tra Medioevo ed età moderna,” Giornale di
Storia, XXXIII (2012), 557–594; idem, “Confisca dei beni,” in Adriano Prosperi (编辑。), Dizio-
nario Storico dell’Inquisizione (Pisa, 2010), 我, 375–376; Germano Maifreda, The Business of the
Roman Inquisition in the Early Modern Era (London and New York, 2017), 139–178.
5 La Mantia, Origine e vicende dell’Inquisizione in Sicilia, 47–48; Lea, The Inquisition in the Span-
ish Dependencies, 13. On Judaizers’ presence, 扩散, and repression in Sicily, see Renda,
L’Inquisizione in Sicilia, 275–297. Capitula Regni Siciliae, quae ad hodiernum diem lata sunt, edita
cura ejusdem regni deputatorum (Panormi, 1743), 二, 54, 55. Capitula Regni Siciliae, 我, 584. 上
protests advanced in the Parliament of 1514, see Renda, L’Inquisizione in Sicilia, 44–46.
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70 | R I C C A R D O R O S O L I NO
not suspected of the crime of heresy and were not descended from
Jews.6
The network of trust underpinning the legal relations inher-
ent in the commercial markets of Sicily—already fragile in its own
right—suffered greatly from the breach created by infringements
committed by the Holy Office’s officials and familiars as both
creditors and debtors. The fact of being liable to trial meant that
the outcome of any negotiation could be completely distorted if
one of the parties could impose his privilegium fori. The petition
for a case to be tried by the judges of the Holy Office rather than
in the ordinary court—or even the mere threat of doing so—made
any possible action of the counterparty vain or ineffective.
In Sicily, as in any other ancien régime context, although it was
considered deplorable not to honor one’s debts—which could
even lead to excommunication—the collection of debts was often
difficult, 如果不是不可能的话. 因此, it was not rare for lenders to
be willing to transfer a debt for less than its value for the sake of
getting at least something for it. More privileged—or more
powerful—lenders could put themselves forward as assignees with-
out recourse, freeing the debtor, so to speak, and taking the risk of
his insolvency entirely upon themselves. Such assignments took
place via payments with subrogation through which the new cred-
itor took the place of the original creditor, taking over his rights
vis-à-vis the debtor.7
一般来说, those with the resources to invest in the credit cir-
cuits often negotiated on two fronts. 一方面, they dealt
with creditors who had difficulty enforcing their rights and who
were willing to collect their debts partially. 另一方面,
they dealt with debtors who were unable to honor their obliga-
tions and were attracted to the idea of accepting the ulterior
demands of the new creditor just to be rid of their original debts.
In both cases, operations of this type could prove to be exception-
ally lucrative.8
6 Capitula Regni Siciliae, 二, 55.
7 For excomunication as a result of failure to pay a debt, see Lucien Febvre, “L’application
du concile de Trente et l’excommunication pour dettes en Franche-Comté,” Revue Historique,
CIII (1910), 225–247; Tyler Lange, Excommunication for Debt in Late Medieval France: The Busi-
ness of Salvation (剑桥和纽约, 2016).
8 For a case concerning Sicily, see Carmelo Trasselli, “Un banco Genovese a Palermo nel
1570,” Revue Internationale d’Histoire de la Banque, 三、 (1970), 177–236, 235–236.
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P R E S E R V I NG T R U S T
| 71
Parliament requested that the emperor ban the assignment of
credits to the officials of the Holy Office and that transgressors
incur consequences. Charles V appears to have grasped the sensi-
tivity of the problem, but chose to resolve it in his own manner,
ordering that, for the assignments in question, the condition of the
tribunal should not be altered and that assignments were to be
considered null when made in favor of a person who was more
powerful by virtue of his office. This blatantly ambiguous resolu-
tion ensured that the problem would turn up again a century
later.9
Even after acknowledging in his own way the validity of the
complaints about the infractions of the officials and familiars, 这
emperor went on to confirm that their role and work must in any
case be upheld and promoted. 最后, their immunity and
privileges had to be respected in both civil and criminal matters.
Thus the callous use of their status needed to be prevented lest
the power deriving from it should have disastrous effects on the
economic life of the kingdom, especially in the sphere of trade.10
The fact that the participation of those party to the privilegium
fori in commercial and financial activities altered the operation of
the markets and, 更普遍, the mechanism that regulated
economic life, came into the open in the further demands made
to Charles V in 1534. At the extraordinary session, Parliament
requested that the officials, ministers, and familiars of the Holy
Office be prohibited from the performance of activities from which
clerics were barred, or at least that any legal disputes arising from
them should be tried by ordinary magistrates and not those of
the Inquisition. Charles V’s reply was icy, turning the matter over
the Inquisitor General.11
Setting the judges, 官员, 和
EFFECTS OF THE PRIVILEGIUM FORI
familiars outside the jurisdiction of the civil government and
allowing the Holy Office to become an autonomous power dras-
tically affected Sicily’s economy and politics. By Viceroy Marco
Antonio Colonna’s 1577 calculation, there were 30,000 人们
9 Capitula Regni Siciliae, 二, 57.
10 Lea, The Inquisition in the Spanish Dependencies, 20–22. On the political tensions triggered
by jurisdictional conflict during the reign of Charles V, see Renda, L’Inquisizione in Sicilia,
42–71.
11 Capitula Regni Siciliae, 二, 99–100.
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72 | R I C C A R D O R O S O L I NO
exempt from ordinary jurisdiction (the privilegium fori extended
to the relatives and servants of those entitled to it)—a sizable
number considering that the total population of Sicily was around
1.1 million.12
在 1575, the president of the Kingdom of Sicily, Carlo
d’Aragona, expressed to Phillip II his concerns regarding the
excessive number of beneficiaries of the privilege. The coexistence
of this sphere of power alongside the state was soon transformed
into a fully fledged political conflict. The clientelist and factionary
rationale had clear repercussions in the legal doctrine produced in
defense of the two blocks of power, with the baronets and the
Inquisition on one side and the power of the viceroy and royal
justice on the other.13
经过 1580, when the Holy Office’s vast power was legitimized
by royal decree, the Inquisition had become parallel to the vice-
roy, an institution that guaranteed subjects’ loyalty to the Spanish
crown and served as sentinel and tutor of the political conscience
of officialdom. Affiliates like the familiars were crucial to the per-
formance of the functions of the viceroy, which were by then
under the remit of the Inquisition. During the next two decades,
concern and critical dissent intensified over both the use of the
privilegium fori and the violations by Holy Office officials and
familiars. 在 1591, in response to building tension, the Crown
prohibited aristocrats and nobles from being ascribed as familiars
of the Inquisition.14
Sciuti Russi, “Inquisizione, politica e giustizia,” Rivista storica italiana, CXI (1999), 39, 40.
12
Francesco Maggiore Perni, La popolazione di Sicilia e di Palermo dal X al XVIII secolo. Saggio
storico-artistico (Palermo, 1892), 156.
13 D’Aragona even stated that the tribunal of the Gran Corte “had no more justice to
administer, because the officials and their servants who are now entitled to the privilege of
the tribunal of the Inquisition are so numerous that they cover most of the Kingdom.” Sciuti
Russi, Astrea in Sicilia, 143.
Helmut G. Koenigsberger (反式. Anna Várvaro), L’esercizio dell’impero (Palermo, 1997),
172–173; Sciuti Russi, “Inquisizione, politica e giustizia,” 40. It did not go unnoticed that the
most illustrious exponents of the judicial institutions of the kingdom appeared on the list of
the officials and familiars of the Holy Office. Renda, L’Inquisizione in Sicilia, 100.
14 Lea, The Inquisition in the Spanish Dependencies, 28–32. Sciuti Russi, “Inquisizione, politica
e giustizia,” 45–46; idem, Astrea in Sicilia, 164–166. On this phase of adjustment, see Rivero
Rodríguez, “La Inquisición española en Sicilia,” 1096–1115. Francesco Fortunato (编辑. Adelaide
Baviera Albanese), Los avertimientos del doctor Fortunato sobre el govierno de Sicilia (Palermo, 1976;
orig. 酒吧. 1591); Alfonso Crivella (编辑. Baviera Albanese) Trattato di Sicilia (Caltanissetta, 1970;
orig. 酒吧. 1593). On the two texts by Fortunato and Crivella, see Sciuti Russi, “Inquisizione,
politica e giustizia,” 54–55, 39–40. Idem, “La Inquisición española en Sicilia,” 86.
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P R E S E R V I NG T R U S T
| 73
Political dysfunction continued during the 1590s, and the good
management of the markets and the maintenance of the very relations
that underpinned society were endangered. An anonymous memoir
written during the period notes that merchants, both Sicilian and
foreign, made efforts to become familiars. The result was in disorder
and uncertainty in the markets, observable in bankruptcy procedures,
the management of wheat surveys/statements (riveli), the distribution
of taxes due to the Crown, and the collection of duties. The effects
were even visible in operations of trade and insurance.15
The core of the anonymous writer’s reasoning pivoted on how
the introduction of inquisitorial justice had accentuated the inequality
before the law between the rich and the poor. 更具体地说, 它
stressed that the new judicial sphere was creating dangerous distor-
系统蒸发散. 实际上, beyond the political rhetoric, the issue did not boil
down to a simple opposition between the people and the upper ranks
of society. The chief problem was uncertainty brought about by the
presence of the Inquisition, as reflected in the reduction of relations-
based agreements and expectations, and hence on trust.
THE INSTITUTIONALIZATION OF THE WAIVER OF THE PRIVILEGIUM FORI
The gravity of the situation forced Phillip II to intervene with
another decree in 1597, in which he accepted some of the demands
to restrict further the number of familiars and curb the power of the
judges of the Holy Office. In this decree were important implica-
tions for the world of business. 例如, notaries charged with
forgery and public bankers charged with fraud were now to be tried
in the secular court. The decree also importantly acknowledged
that those who enjoyed the privilegium fori of the Tribunal of
the Inquisition could waive their entitlement to it.16
The waiver of the privilegium fori, 尽管, was already practiced.
Forty years earlier, in authorizing Bartolomeo Masbel to open a bank
in Palermo in 1556, Viceroy Juan de Vega had given instructions that
15 The memoir was written between 1591 和 1597. Sciuti Russi, “Inquisizione, politica e
giustizia,” 57–58.
16 从 1597 various crimes were removed from the jurisdiction of the Inquisition judges,
including sedition, murder and intentional injury, and tax debts to the Real Patrimonio. 这
new decree appeared to represent the victory of the viceroy’s party over that of the Inquisition,
fully satisfying the centralistic criteria of the court of Palermo. 尽管如此, the Holy Office was
still able to exert power and influence through its clientele networks. Rivero Rodríguez, 这
Inquisición española en Sicilia, 1144–1145; Mario Cutelli, Codicis legum sicularum libri IV. A totidem
Siciliae, & Aragoniae regibus latarum cum glossis, sive notis iuridico-politicis (Messina, 1636), 498.
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74 | R I C C A R D O R O S O L I NO
bankers be obliged to waive the right to any special court, 特别
the “court of the office of the Inquisition.” The aim was to prevent
the banker from eluding royal justice in the event of bankruptcy.
而且, even the guarantors involved in the foundation of the bank
were required to waive their privilegium fori for the same reason.17
By legally formalizing the waiver of the privilegium fori in
1597, the waiver had effectively been institutionalized. 那些
who could not or would not accept the risk of entering into a con-
tract with someone who had the right to the privilegium fori now
had the means to ensure any resulting legal disputes would be set-
tled in secular courts. Although the legal basis of the waiver was
anything but solid, as evidenced by the criticism it received, 这
new instrument was widely used by those habitually engaged in
the credit circuits and in loan contracts.18
On April 17, 1626, in the office of the notary Giovan Battista
Strada, the goldsmith Baldassar Cosentino borrowed from Francesco
Mirata the sum of 47 onze, undertaking to return it within four
月. It was agreed that the annual interest could not exceed 12
percent of the loan. Cosentino waived his right to the inquisitional
法庭. Mirata remained in Strada’s office for another loan, this one
for Francesco Castagnetta, a silversmith who belonged to the same
Palermo guild of goldsmiths and silversmiths as Cosentino. Strada
was in fact one of the notaries regularly used by the guild. It is likely
that Cosentino and Castagnetta knew each other and they both also
knew Strada. The second contract differs from the first only in terms
of the amount given and taken on loan, this time 50 onze. Mirata
imposed the same clause to waive recourse to the tribunal in the
event of dispute. We do not know whether Cosentino possessed this
privilege, but Castagnetta certainly did. The conditions agreed with
Mirata by the two craftsmen were not particularly favorable, 但他们
were hardly the worst to be found on the market.19
17 Antonino Giuffrida, Le reti del credito nella Sicilia moderna (Palermo, 2011), 48, 241.
18 Responsum d. Ludovici a Paramo, adversus obiectiones secundo loco, excitatas contra iurisdictionem
sancti Officij Regni Siciliae (Madriti, 1599). Páramo had already addressed the issue five years
早些时候, putting forward similar arguments. See Responsum d. Ludovici de Paramo, inquisitoris Regni
Siciliae, pro defensione iurisdictionis Sancti Officij, adversus oppositiones & capitula udicum secularium
eiusdem Regni (Madriti, 1594), 52v–66v. On Paramo’s arguments, see Rosolino, “Tra fedeltà e
fiducia. Lo Stato, l’Inquisizione, le relazioni giurate,” Studi Storici, 二 (2023, 即将推出).
19 Notary Giovan Battista Strada, MMCMVI, fols. 132v–134r, Archivio di Stato di Palermo
(Palermo State Archives, hereinafter ASP); 同上。, fols. 134r–135r; idem, MMDCCCXCIV, fols.
79r–83v, ASP; idem, MMCMVI, fols. 261r–265v, ASP.
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P R E S E R V I NG T R U S T
| 75
On October 24, 1626, Strada drew up a similar loan contract
between Baldassar Lixi and three partners, Pietro Moretto, Jacobo
Maffiolino, and Bartholomeo Depra. They jointly took on a loan
from Lixi for the sum of 80 onze, to be repaid within six months at
an interest rate of a maximum of 14 百分. Lixi, like Mirata in
the other two contracts, also requested and obtained from the
counterparties the waiver of the privilegium fori.20
These specific cases suggest how the Sicilian business world was
addressing the impact of the Inquisition on economic life. Waiving
the privilege to the court of the tribunal was an indispensable con-
dition for agreeing to a contract to lend or receive money on loan at
interest rates that were generally high (最多 14 percent but never
少于 8 百分) and to undertake to return it in the short term
(four or six months but up to one year). These were contracts made
against payment, which always entailed a risk. 所以, 他们
attracted the attention and suspicion of those who, in the light of
Counter-Reformation moral theology, wanted to scrutinize the
ways in which debit/credit relations were managed. Such contracts
were used mostly by people involved in commerce, finance, 和
world of trade. As Giovanni Domenico Peri wrote in his treatise Il
negotiante: “The Merchants are not in the habit of making loans to
彼此, so that when they need money they go to the market-
place and, through the broker, they take on loan the money they
need and in this way can meet their requirements.” In Sicily, 甚至
the exponents of the aristocracy were in the habit of obtaining
money in this way to meet the financial demands connected with
the management of their great estates.21
Strada, MMCMVI, fols. 52v–54v, ASP.
20
21 Giovanni Domenico Peri, Il negotiante ( 威尼斯, 1672–1673), IV, 50. On Peri’s work, 和
on this passage in particular, see Raymond de Roover, L’évolution de la lettre de change: 14–18
siècles (巴黎, 1953), 69–70; Rodolfo Savelli, “Modelli giuridici e cultura mercantile tra XVI e
XVII secolo,” Materiali per una storia della cultura giuridica, XVIII (1998), 17–19.
例如, on October 31, 1641, Don Ottavio Lanza, Prince of Trabia, jointly with the
brothers Don Giovanni and Don Ignazio Graffeo, borrowed from Pietro Colle the conspic-
uous sum of 480 onze, at an annual interest rate of 12%, to be returned within ten months.
Don Ottavio was the only official debtor. On the same day he declared that the obligation
pertained exclusively to himself. Notary Matteo d’Ippolito, CCLXVI, fols. 54v–59r, ASP. Five
多年后, on June 16, 1646, Don Ottavio applied to Colle again to have further money. 这
时间, 然而, he contracted the debt jointly with his son Don Lorenzo Lanza, Count of
Mussomeli; Don Francesco Celesti; Don Francesco Starrabba; and Giuseppe Manicuni. 这
interest rate was the same, but the amount, 760 onze, was much greater. D’Ippolito,
CCLXVII, fols. 856r–861r, ASP.
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76 | R I C C A R D O R O S O L I NO
任何状况之下, whether it was a question of small or large amounts
of money, those who entered into contracts of this kind knew that
they could be at risk of unforeseen damages. The interest rate, 哪个
only specified an upper limit, was not agreed at the time of the con-
tract but was defined later on the basis of the current value of the
exchange differences between the marketplaces. Very often, 如何-
曾经, these exchange differences were simply a sort of cover, 和
the upper ceiling became the actual rate. 为此原因, 它是
widely maintained that these contracts were used as particularly
onerous credit instruments to avoid the canonical ban on usury.22
This explains the presence of guarantors, who were called
upon to stand surety with the debtor for the return of the sum
with the agreed interest. These obligations were supported by
the reputations of the parties involved and by the bond of trust
between the contracting parties, which was quite often established
with the assistance of third parties, such as notaries and brokers,
who circulated necessary information about the parties. 内弗特-
较少的, even all of these safeguards were hardly ever enough, 和
attention paid to the definition of contract conditions was a clear
sign that ending up in court was seen as a real and not remote pos-
能力. 此外, although wealth was not an unequivocal
sign of a person’s good reputation, it offered reassurance regarding
the results that might be obtained through eventual legal action.23
另一方面, as an anonymous writer—plausibly a
businessman—wrote in 1573, “Rich people do not take loans a
cambio out of read need, but by choice, expecting that they will
enrich themselves by employing the credit and money of their
partner, in addition to their facility in these types of negotiation
22 One of the most famous examples in this debate is the Trattato de’ cambi et in particolar de’
cambi detti di Lione e di Bisenzone written by Marco Palescandolo in the last quarter of the
sixteenth century. It was finally published in Giovanni Cassandro, Un trattato inedito e la dottrina
dei cambi nel Cinquecento (Naples, 1962), 111–167.
23 On how the bonds of trust underpinning credit/debit relations were based on the cred-
ibility that the persons involved were able to create and preserve, see Craig Muldrew, 这
Economy of Obligation. The Culture of Credit and Social Relations in Early Modern England
(贝辛斯托克, 1998); Margot C. 芬恩, The Character of Credit: Personal Debt in English Culture,
1740–1914 (剑桥, 2003); Laurence Fontaine, “Antonio e Shylock: Credit and Trust in
法国, C. 1680–1780,” Economic History Review, LIV (2001), 39–57; idem, L’économie morale:
Pauvreté, crédit et confiance dans l’Europe pré-industrielle (巴黎, 2008). Laurie Nussdorfer, Brokers of
Public Trust: Notaries in Early Modern Rome (巴尔的摩, 2009).
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P R E S E R V I NG T R U S T
| 77
where they expect to earn more than what they believe they risk
losing.”24
A few decades later, 在他的 1619 treatise, De commerciis et
cambio, the jurist Sigismondo Scaccia elaborated on these arguments,
noting that the use of certain economic and legal instruments was no
longer restricted to people in the business world. The increasingly
widespread use of money in this manner posed the inescapable prob-
lem of putting all creditors in the same category. It seemed to many
people that the time was ripe to consider the mechanisms hitherto
applied only to certain monied individuals as valid for the masses.25
As loans were borrowed, transferals of debt inevitably circulated.
Such assignments brought into question the collectability of debts
after the personal relationship of trust that had given rise to the orig-
inal obligation no longer existed. The extent of this problem
emerged clearly during the Parliament of 1615. Observing that cred-
itors who wished to “oppress” their debtors were in the habit of
assigning the credits that they held to “privileged persons or institu-
系统蒸发散,” Parliament requested for the privilegium fori only to be used
by those people who, objectively, had an “effective interest in the
matter in their own name” and not by those who had instead taken
over the obligation “by transfer or donation” or “by entering into it
in some other manner.” It was no longer possible to acquire a credit
in this way and then request its collection through legal channels
using one’s privilegium fori. Cases in which the “transfer or dona-
tion” of bonds to privileged persons or institutions made in order
to prevent the debtors from submitting to the jurisdiction of their
own regular court caused serious prejudice to these individuals by
depriving them of the power to defend themselves.26
24 Dialogo, nel quale si ragiona de’ cambi, e altri contratti di merci: e parimente delle Fere di Ciamberi,
e di Trento (Genoa, 1573), 34–35.
Savelli, “Between Law and Morals: Interest in the Dispute on Exchanges during the 16th
25
世纪,” in Vito Piergiovanni (编辑。), The Courts and the Development of Commercial Law (柏林,
1987), 79–87; idem, “Modelli giuridici e cultura mercantile,” 7–12. Savelli, “Between Law and
Morals,” 39–43; idem, “Modelli giuridici e cultura mercantile,” 12–17. See also Rodolfo De
Laurentiis, “Sigismondo Scaccia (1564?–1634) fra pratica e teoria giuridica agli inizi dell’età
moderna,” Rivista di Storia del Diritto italiano, LXIV (1991), 231–287; Daniela Tarantino,
“Scaccia, Sigismondo,” in Italo Birocchi et al. (编辑。), Dizionario Biografico dei Giuristi Italiani,
XII–XX secolo (Bologna, 2003), 二, 1811–1814. Sigismondo Scaccia, Tractatus de commerciis et
cambio (罗马, 1619), 217–218, 236.
26 On the conventional assessment of a person’s reputation, see Emily Kadens, “Pre-
Modern Credit Networks and the Limits of Reputation,” Iowa Law Review, C (2015),
2429–2455; idem, “The Dark Side of Reputation,” Cardozo Law Review, XL (2019), 1995–
2027. Capitula Regni Siciliae, 二, 344.
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78 | R I C C A R D O R O S O L I NO
Even after the institution of the waiver of the privilegium fori
在 1597, tensions were not abated. In the 1630s the Spanish govern-
ment considered the power of inquisitorial justice and further
reduced its scope. 在 1633 the Sicilian jurist Mario Cutelli was sent
to Spain by the viceroy specifically “with the task of explaining to
the sovereign and to the Council of Italy the serious inconve-
niences caused to public order and to the economic life of the king-
dom by the endless legal disputes between the ordinary magistrates
and the Tribunal of the Holy Office.” Shortly after arriving in
西班牙, Cutelli published the Patrocinium, in which he not only
denounced the usurpations perpetrated by the Holy Office in vio-
lation of what had been established in the decrees of 1580 和 1597
but also made a political issue of the need to prevent judges of the
Inquisition from dealing with offenses that weighed heavily on the
network of trust underpinning commercial and financial markets.27
The result was a royal decree in 1635, which again touched
on the question of the waiver of the privilegium fori. The princi-
pal beneficiaries of this provision were creditors who could now
insist on the waiver in the event of going to litigation with the
debtor—who could always turn out to be a familiar. The degree
to which the waiver was crucial to the life of Sicily is illustrated by
the particular attention Cutelli paid to it in the Patrocinium. 他的
further reflections on the matter of the waivers in his Decisiones
became an important element in the orientation of jurisprudence.
It was clear that the privilegium fori, and the practical possibilities
of curbing it, was a political and judicial issue that went well
beyond the confines of Sicily.28
Sciuti Russi, “Inquisizione, politica e giustizia,” 62, 64; idem, “Cutelli Mario,” in Dizio-
27
nario biografico degli italiani (罗马, 1985), XXXI, available at https://www.treccani.it
/enciclopedia/mario-cutelli_%28Dizionario-Biografico%29/. Pragmaticarum Regni Siciliae tomus
tertius in quo continentur Regiae Sanctiones, Pragmaticae, Capitula, Decreta, & Edicta, in veteribus
Codicibus praetermissa, vel postea, usque ad hodiernum diem, publicata (Palermo, 1700), 117–118.
28 Cutelli, Patrocinium pro regia iurisdictione inquisitoribus siculis concessa (Madriti, 1633), 帽. IIII
et ult., 55–56, 136v–140; idem, Decisiones supremorum huius Regni Siciliae Tribunalium iuxta ora-
tiones editas (Messina, 1632); Michaelis de Cortiada, Decisiones cancellarii et sacri regii Senatus
Cathaloniae, sive Praxis contentionum et competentiarum regnorum inclytae coronae Aragonum super
reciproca in laicos & clericos jurisdictione (Lyons, 1699; orig. 酒吧. 1661–1665), 我, 374–375; Alphonsi
Narbona, Commentaria ad l. XX. tt. I lib. 4. Novae Recopilationis legum Hispaniae (Toleti, 1673),
二, 566–579; Thomae Carlevalii, De judiciis, de foro competenti, et legitima judicum potestate, ac de
judiciis in genere, judicio executivo, & concursu creditorum (Lugduni, 1702), 我, 239, 259; Laurentii
Mattheu et Sanz, De regimine urbis, et regni Valentiae ( Valentia, 1656), 我, 151; Didaco Guerreyro,
Opusculum de privilegijs familiarium, officialium que sanctae inquisitionis (Conimbricae, 1699).
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P R E S E R V I NG T R U S T
| 79
The institutionalization of the waiver and the necessary reg-
ulation of its use made sense only under one of two conditions.
第一的, the contracting parties had to keep the promise comprised
in the contract not to appeal to their own special justice. 第二,
in the absence of the first condition, in any eventual legal dispute,
royal justice had to take precedence over that of the Inquisition.29
然而, the inclusion of the waiver in loan contracts suggests
that it had become commonplace, at least in the world of business.
此外, the waiver was a form of guarantee of any possible
variations that could alter the legal status of the counterparty to
the contract. A person’s legal status could change, and even those
who did not have the privilegium fori at the time of signing the
contract might acquire it later while the contract was still operative,
especially because it was common for such a relationship to continue
over time and even to be transmitted to one’s heirs.30
The situation in Sicily, characterized by pressure from the Inqui-
sition and the institutionalization of the waiver of the privilegium
fori to defend business logic, had far-reaching implications beyond
the kingdom. 例如, Alfonso De Olea cited the royal decree
的 1635 in his famous 1652 treatise, De cessione iurium et actionum,
referring explicitly to the contents of the regulation regarding
assignments. Olea also observed that the 1635 decree had not been
effective, noting that officials of the Inquisition continued during
his time to accept assignments of credits. It was nevertheless true
that the regulation was open to more than one interpretation.31
29 Frequent non-compliance with such royal decrees continued to be a source of tension and
冲突. Lea, The Inquisition in the Spanish Dependencies, 38; Jose Martínez Millán, “Los problemas de
jurisdicción del Santo Oficio: La Junta Magna (1696),” Hispania Sacra, XXXVII (1985), 205–259.
Sheilagh Ogilvie, Markus Küpker, and Janine Maegrath, “Household Debt in Early Modern
30
德国: Evidence from Personal Inventories,” Journal of Economic History, LXXII (2012), 134–167.
31 D. Alphonsi De Olea, Tractatus de cessione jurium et actionum (Lugduni, 1694), 69; Cutelli,
Codicis legum sicularum libri IV, 506. It was not exactly clear—for the assignment to be consid-
ered null and the assignor obliged to drop the case—how a person’s status of being more
powerful was to be deduced. 此外, the assignments and donations of rights to those
entitled to the privilegium fori risked neutralizing everything that had been achieved through
the recognition and institutionalization of the waiver of recourse. A guarantee obtained in this
manner at the time of definition of the contract conditions would have no effect if the obli-
gation were later taken over by a third party entitled to the same privilege. 另一方面,
donations and assignments of rights were contracts and, 像这样, the possibility of an eventual
trial ending up in the hands of the Inquisition appeared to undermine the network of trust
based on protection of and adherence to agreements based on the rationale of the obligation.
Muldrew, The Economy of Obligation, 315–333.
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80 | R I C C A R D O R O S O L I NO
The adopted solutions to the questions posed in the introduc-
tion to this paper were intended to ensure that, should the entitle-
ment move beyond the original obligation, the contract would not
be neutralized. For debtors, contractual agreements called for a dual
oath that included the promise to repay the loaned amount and to
waive any privileged condition. Francisco Salgado de Somoza
discussed this aspect of the waiver in his 1651 treatise Labyrinthus
creditorum concurrentium, where he stressed the cogency of contrac-
tual logic and, more directly, adherence to the promise made freely
by a familiar in the definition of the agreement. Although Labyr-
inthus is a treatise on bankruptcy, Salgado’s consideration of the
institution of the waiver was pertinent because every bankruptcy
procedure created a hierarchy of creditors, and the possibility of
disruption by the tribunal was a source of uncertainty.32
The strength of the juridical logic supporting the waiver
stemmed from the will expressed privately by the parties at the
time the terms of the contract were defined. In Salgado’s eyes, 这
observation was significant, based on the vindication of the impor-
tance of autonomy that characterized the private legal dimension.
Its valorization responded to the need not to let relationships based
on trust be destroyed by the abuses committed in the exercise of
forum privilege. The urgency of the issue was evident. To fail to
32
Italo Birocchi, Causa e categoria generale del contratto: un problema dogmatico nella cultura pri-
vatistica dell’età moderna (Turin, 1997); James Gordley, The Philosophical Origins of Modern Con-
tract Doctrine (牛津和纽约, 1991); Robert Feenstra, “Pact and Contract in the Low
Countries from the 16th to the 18th century,” in John Barton (编辑。), Towards a General Law of
合同 (柏林, 1990), 198–215; Birocchi, “Tra tradizione e nuova prassi giurisprudenziale: 这
questione dell’efficacia dei patti nella dottrina italiana dell’età moderna,” in Barton (编辑。),
Towards a General Law of Contract, 250–367; Wim Decock, Theologians and Contract Law:
The Moral Transformation of the Ius Commune (加州. 1500–1650) (Leiden and Boston, 2012); Carlos
de Cores, La teoria generale del contratto. Una prospettiva storica (Turin, 2020). Francisco Salgado
de Somoza, Labyrinthus creditorum concurrentium ad litem per debitorem communem inter illos causa-
tam, Tomi Duo (Lyons, 1672; orig. 酒吧. 1651), 我, 46. The use of the adverb freely appears to
highlight the binding nature of the contractual intention expressed in conditions of liberty. 在
the light of the merciless logic of credit/debit relations, and the balance of power inevitably
expressed in the contract conditions, use of this word might seem provocative, if not para-
doxical. 然而, the extent to which this balance of power was exposed to radical alter-
ations in the event of one of the two parties proving to be a familiar of the Holy Office, 节目
the importance of the use of this adverb in sealing the promise made ex pacto. On Salgado de
Somoza and his Labyrinthus, see Mercedes Galán Lorda y Patricia Zambrana Moral, Francisco
Salgado de Somoza [1595–1665], in Diccionario crítico de juristas españoles, portugueses y latinoamericanos
(巴塞罗那, 2006), 471–473; Wolfgang Forster, Konkurs als verfahren. Francisco Salgado de
Somoza in der Geschichte des Insolvenzrechts (Cologne, 2009).
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P R E S E R V I NG T R U S T
| 81
recognize the legal force of the waiver of privileged justice admin-
istered by the Holy Office was to let the very logic of promise/
expectation be irreparably compromised.33
Salgado’s position was supported by the new general theory
of contract that had recently been proposed, thanks mainly to the
work of Spanish jurist and Jesuit Pedro De Oñate. In his view,
which was influenced by writings on the role of consent and
the element of will by Barolomé de Albornoz and Francisco
加西亚, the contract was nothing more than the projection of
the freedom to obligate oneself through an act of will. Oñate
radically rethought the contract as an intentional, voluntary, 和
free act.34
What constituted the essence and very definition of the con-
tract were primarily the expressed wills of the contracting parties.
The principle underlying the covenant was clear, as was that the
central aspect of the matter lay in the importance assumed by the
autonomy of the will. The contract was essentially a covenant
generated through consent.35
An insistence on the logic of consensus carried an additional
element; for if the contract was essentially traceable to the action
of consent, the element of freedom was crucial. It is unknown
whether Salgado was aware of Oñate’s conclusions. By the print-
ing of the first edition of Labyrinthus, five years had passed since the
publication of the first volume of Oñate’s work, entitled De
contractibus in genere. What is certain, 然而, is that Salgado’s
insistence on the dimension of contractual autonomy—founded
on freedom and will—was aimed to legitimize further the new
institution of the waiver of the Holy Office’s privilege of forum
for officers and familiars in the face of power as threatening and
cumbersome as the Tribunal of the Inquisition.
33 To substantiate his position, Salgado referred to Pedro Barbosa, Commentarii ad interpre-
tationem tituli, ff. de iudiciis (Lugduni, 1622), IV, 94, 95.
34 Pedro De Oñate, De contractibus in genere (罗马, 1646). Birocchi, Causa e categoria generale
del contratto, 228–238, 281–289; Decock, Theologians and Contract Law, 163–182; Cores, 这
teoria generale del contratto, 252–268.
35 Oñate, De contractibus in genere, 我, 15, 二, 199–200.
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