Asserting One's Rights: Swedish Property Law in the Transition from Community Law to State Law

MARIA ÅGREN

Part I. How Do Property Rights Arise?

In 1685, the Swedish nobleman Per Sparre instituted legal proceedings against the printer Niclas Wankyf. The dispute had been triggered by Sparre having let his tenants erect houses for themselves on what Wankyf regarded as his private property. Wankyf had consequently torn down the buildings, causing Sparre to bring the case to court. However, Wankyf clearly saw himself as the aggrieved party and regarded Sparre as a trespasser. Arguing his case before the court, Wankyf emphasized that Sparre had never been able to prove that he held the contested area by virtue of urminnes hävd ("immemorial prescription"). To this Sparre retorted—with some irritation—that Wankyf argued as if "there are no other means of defending one's legal property than to invoke immemorial prescription."1	1
This exchange of words highlights issues that are central to all property rights systems. On what grounds do property rights arise and by what means can they be defended? What happens if different persons adduce different entitlements to the same object: how will the judiciary solve such problems? An understanding of how rights to landed property arise is even more crucial if our focus is on the premodern period, because land was the most important economic resource at that time and also one of the main sources of political power. Consequently, an analysis of how immovable property was conceptualized among early modern lawyers and within local communities is of key interest to scholars of law and agrarian historians alike. At the intersection between elite discourse and local practice, patterns appear that bear witness to fundamental characteristics of society.	2
That Wankyf attached great importance to whether or not Sparre could be said to hold the area by virtue of immemorial prescription is particularly interesting. "Immemorial prescription" (Swedish urminnes hävd, Latin possessio immemorialis or praescriptio immemorialis)—that is, acquisitive prescription based on use since time immemorial2—was a means of acquiring title to property. It was mentioned as early as in the medieval legal codes and survived into the twentieth century, although by then the scope for its application was greatly reduced. On the face of it, immemorial prescription appears to be a longue durée, an institution of continuous importance. But if we look more closely at how lawyers and representatives of the state regarded this mode of acquisition, we see that a very favorable view gradually made way for a far more hostile one. For instance, in the early seventeenth century respect for immemorial prescription was often said to make property relations stable and unequivocal.3 Two hundred years later, by contrast, legislators were careful not to include immemorial prescription in an enumeration of means of acquiring title, arguing that to describe it as such a means would be tantamount to inciting people to commit criminal acts.4 Somewhere between these two periods the transition took place, and there is good cause to place it around the year 1700. The dispute between Sparre and Wankyf in 1685 thus not only illuminates the issue of acquisition of title but does so at precisely the time when the value of prescription was under debate.	3
Historiographic Frame
It is a well-known fact that property rights systems are not static. They change, slowly or rapidly, and the causes and effects of such changes have interested many historians.5 In Western Europe, a general trend has been for property rights to become increasingly individualized and released from their previous embeddedness,6 but the routes by which this situation has come about have varied from one country to another.	4
In English historiography, for instance, much attention has been devoted to the changes brought about by enclosure. This was a protracted process, beginning well before the sixteenth century and stretching into the nineteenth, and its character varied from one region to another.7 Widely differing opinions have been voiced as regards the value and effects of the later (parliamentary) phase of enclosure (from 1750 and onward). Did parliamentary enclosure bring about such an increase in agrarian productivity that it justified the social losses that it undeniably entailed?8 As a part of this debate, customary land rights have come into focus.9 If parliamentary enclosure was illegitimate to the people concerned (as it often was), then it was because it violated age-old notions about how the land should be used and by whom. These age-old notions were the local customs—not state-sanctioned law, but commonly accepted norms pertaining to the use of land.	5
E. P. Thompson has identified a number of characteristics of custom: it referred to old and unbroken social practices, based on certainty and "reason." Custom was also local: it always applied to a certain piece of land, not to land in general. In upholding custom, the memories of the old were crucial, and to disregard custom was to disregard those memories.10 Jeanette Neeson has also emphasized important aspects of customary rights to use commons for pasture. Such rights had to be kept alive by active use. An owner who did not use and assert his rights to common ran the risk of losing them. By contrast, long use evidently strengthened the rights of a commoner. These aspects of custom explain why some landlords were careful not to separate common rights from cottages.11	6
This historiographic tradition has been interested in understanding the meaning of property rights based on custom. But changes in property rights systems have also been addressed within another tradition, rooted in economics and interested in the economic efficiency of various institutions. It has been a basic assumption that property rights evolve, more or less spontaneously, when the resource in question becomes less abundant. This standpoint has been modified by scholars who have insisted on the importance of the state or, to be more specific, of the legal system. Nevertheless, population pressure and scarcity of resources remain fundamental to the theory.12 Another assumption of institutional economics is that well-defined private property rights are superior to other arrangements (when resources are scarce) because an individual will take better care of his/her private property and, therefore, resources will not be squandered or misused. A primary function of a private property system is said to be to "guide incentives."13 These hypotheses have been applied, for example, to the use and misuse of common land.14	7
In Swedish historiography, changes in the property rights system have been addressed in a number of studies, and some have been influenced by the approach suggested in institutional economics.15 For the period after 1750, the state-initiated enclosure reforms have been the subject of great scholarly interest. Central to the Swedish experience was the ambition to reduce the number of strips of land belonging to each farm, creating compact farms and minimizing the level of "unnecessary" and time-consuming cooperation within a hamlet/village. Recent research has shown that Swedish peasants were often more active in promoting enclosure than was once believed.16 To some extent, they chose to reallocate land even before the state-initiated enclosure reforms began.17 Here there are points on which the Swedish and English experiences coincide. To enclose amicably and without social conflicts was often what happened in the pastoral regions of England before parliamentary enclosure began.18 A difference, however, is that since customary law, in the sense of manorial law, played a much more limited role in Sweden (see below), enclosure has not been conceptualized as a breach of custom, but sometimes as a breach of "tradition."	8
But to appreciate fully the change brought about by enclosure, it is necessary to gain a more thorough understanding of how the Swedish property rights system worked prior to the reforms. How did different parts of the property system interact and what were the causes and effects of their complex interplay? Here the seminal work of Christer Winberg must be seen as a point of departure for all future discussions. In Grenverket [Ramifications], Winberg analyzed the changing meaning of the Swedish concept of birthright (bördsrätt) from the early medieval period up to the nineteenth century.19 This institution meant that, in the event of a person wishing to sell land that he had inherited, his relatives had first refusal on the land. Through his explorations, Winberg was able to show how the concept of kin changed over the period studied and that the nobility in particular influenced how it was interpreted at law in the seventeenth century. A broad definition of kin was advantageous to them, since it gave them greater scope to buy land from their relatives without competition from outsiders. In the eighteenth and nineteenth centuries, the number of people regarded as kin and as having a birthright was reduced. This was attributed by Winberg to the interest of individuals in selling land at the highest price available.	9
A general trend can be discerned: property rights were increasingly liberated from various constraints, allowing individual owners to do whatever they liked with what was theirs. But whereas the English discussion has focused on the constraints of customary rights (and whether or not it is appropriate to regard them as constraints), the discussion in Sweden has concentrated more on the constraints of kin rights and, to some extent, on the constraints imposed by the organization of villages. A question that has not been answered is whether it is accurate to explain this trend with reference to pressure on resources (as the proponents of institutional economics would do).	10
A fuller understanding is needed, and this calls for in-depth studies. One of the best ways of exploring how different factors interacted is to analyze litigation. Tim Stretton has recently argued the case for such studies, while deploring that there are so few of them compared with studies of criminal justice.20 This description of the state of research is true not only of England (which Stretton no doubt has in mind) but of Sweden as well.21 This article, therefore, focuses on property disputes, with the aim of analyzing how acquisition of title was conceptualized in early modern Sweden. This does not lead to a discussion of enclosure, but there are similarities between prescription and custom, similarities that raise crucial questions about the character of early modern law.	11
Method and Sources
Why was immemorial prescription once looked upon as a highly valuable institution, and why did this view change? These two basic questions structure this article, but finding the answers to them is not straightforward. There is no source material allowing an in-depth analysis of the entire period (approximately 1450 to 1850) and, even if there were, it would be impossible for one person alone to study it. Therefore, my approach is a close scrutiny of selected unprinted sources from the period 1615 to 1687. From this, it is possible to identify some of the more important factors promoting the immemorial prescription argument. Once these factors have been identified, it is possible to judge whether they changed after 1700.	12
The main source material derives from the Royal Court of Appeal in Stockholm (Svea Hovrätt), which was set up in 1614 and began to operate the following year. At first, this court was the only appeal court for the entire kingdom of Sweden, but soon three additional appeal courts were set up, with responsibility for Finland (Åbo Hovrätt), for Livonia and Ingria (Dorpats Hovrätt), and for the southern part of Sweden proper (Göta Hovrätt).22 The area left to the Stockholm court was thus central and northern Sweden, and it is from this area that the cases analyzed come. Complementary sources have been added, however, deriving from a number of local hundred courts (häradsrätter). The reason for this addition is the overrepresentation of noblemen among the parties appearing before the appeal courts. One of the privileges of the nobility was that they did not have to have their internal disputes tried by the local, peasant-dominated hundred courts but could turn directly to a royal court of appeal.23 People from Stockholm were also overrepresented in Svea Hovrätt, mainly because the court was situated in the capital and it was therefore easier for inhabitants of the city to take cases to appeal. To balance these distortions in the appeal court material, I include cases from the primary level of the court system and from places far away from Stockholm.	13
In all, 270 disputes over landed property (from the appeal court) have been analyzed; of these, ninety-six included claims based on immemorial prescription. In addition to the 270 disputes, there are the cases from the local hundred courts. I have also included a number of drafts of a new legal code and academic dissertations on property law, all dating from the seventeenth century, as part of the analysis of legal literature and elite views. The most important sources in this category are the (often) detailed minutes of the Royal Law Commission, set up in 1686. This commission finally managed to write a new legal code (promulgated in 1734), applying to the entire realm, town, and countryside.	14
Part II. The Swedish Setting
From around 1000 to 1900, the basic economic unit of Swedish agrarian society was the peasant family and its farm. To an overwhelming extent, the rural economy was in the hands of independent peasant families, many of whom owned the land they occupied. Any discussion about definitions of property must therefore start from the fact that landed property was mostly small-scale. Within this system, the legal organization of the village/hamlet and the taxation structure influenced the notion of property in a rather complex way.	15
Many Swedish villages were small by European standards, encompassing only five to six farms and in some cases even less. But there were also regions where they were larger.24 Many of the social tasks undertaken at the village level elsewhere in Europe, such as poor relief, were here taken care of at the parish level. Swedish historians rarely use the word village, preferring "hamlet" in order to stress the small-scale character of these settlements. Often the village level of organization is simply not discussed; the household and the parish stand out as the main organizational units of premodern Swedish society.25	16
But to understand the arguments put forward in legal disputes, the village organization (enforced in the period 1000–1300) is of crucial importance. Through the national legal code pertaining to the countryside (1350), we gain some insight into how the village was supposed to work. The code defines a village as a unit of cultivation and as a community whose members share rights and duties. But the rights and duties did not fall equally upon all members; instead, they were proportional to the size of each member's stated share of the village (byamål).26 If an owner had a share valued as one-Fifth of the entire village, then he should have one-Fifth of the arable fields of that village. The tasks and duties imposed on him (such as mending fences) were also supposed to reflect his share of the village. Finally, the actual layout of strips of arable was to be regulated so that a farm situated in the eastern part of the village had its strips in the eastern part of every field, and so on.	17
The legal code not only regulated in detail the internal affairs of villages; it also regulated the relationship between villages, especially the use of resources. For instance, the law said that if a peasant held two farms in two different villages, he could not take peat from one of his farms and transfer it to his other farm (even though this might have been wise and justifiable from his private point of view). The peat had to stay in "its home" and be of use to that village.27	18
The notion of shares did not mean that the community could enforce land redistribution against the wishes of individual owners, as long as each owner held an amount of land that was proportional to his share. Land was held individually, but the object of property was expressed as a share and not in terms of acreage or tangible plots of land.	19
The rural legal code was not the only source of norms, even if it was the most important one. Statute law also influenced rural life; for instance, several new statutes pertaining to the use of woods were promulgated in the seventeenth and eighteenth centuries. Villages/hamlets could also formulate by-laws (byordningar). The majority of the by-laws that have been preserved are from the eighteenth and nineteenth centuries.28	20
To understand how this system worked in real life, we need to make in-depth studies of individual villages/hamlets. Generalizations are impossible. But it is beyond doubt that this is how villages were regarded in law, and it is also clear that villages did work more or less in this way in eastern Sweden.29 Western Sweden never enforced this system. But for the cases that will be analyzed here, many of them originating from the central Swedish region (near Stockholm), the notion of village shares is fundamental.30 It meant that the law provided concepts and rules that could be used to argue that the internal property structure of the village had been upset and must be readjusted. And since it was lawful to increase the size of one's share through purchase, the prohibitions laid down in the law must be understood as rules against furtive encroachment. Individual owners were not allowed to increase their land holdings by, for example, reclaiming new arable within the precincts of the village. Such projects presupposed permission from the other members of the community, or that everybody reclaimed land together.31	21
The village was a medieval organization. In the sixteenth century, a new structure was added through the tax reforms of Gustav Vasa (1523–1560). Its aim was to make peasant families responsible for land taxes. These taxes were not new in themselves, but the idea of using the family farm (Swedish hemman) as the primary unit of taxation was. To make the distribution of taxes equitable, the resources of each farm were first assessed. A farm that was big enough to support a family and pay the taxes was looked upon as a whole hemman. Smaller units could be assigned the value of one-half. The introduction of this scheme meant that, henceforth, representatives of the state took an unfavorable view of holdings being subdivided.32 They feared that a right to subdivide farms freely would, in the end, endanger tax revenue since many farms would become so small that they would become exempt from taxation. Before the eighteenth century, the state enforced this policy of prohibiting subdivision with some severity, and piecemeal selling of land was also opposed.33 But in the eighteenth century, popular pressure brought about a change. The population was now growing and agriculture intensified, making it possible to make a living on smaller holdings. Consequently, the permitted minimum size of a hemman was gradually reduced.34	22
The ideal situation (from the point of view of the state) was one in which the amount of land held by a peasant family was in proportion to the family's share in the village and to its taxes. All three of these variables were supposed to correlate perfectly. In reality, of course, discrepancies were not uncommon and they caused disorder in terms of both property rights and tax liabilities. For instance, a farm could have its tax burden reduced permanently (förmedling) if the royal bailiff deemed it necessary (because the farm yielded too little). But then the question arose as to whether such a farm was still entitled to use the village commons to the extent it had once done. The other members of that particular village would naturally adduce their higher tax liability as an argument for having a larger share of the commons. But the farmer whose tax had been reduced still held his old share of the village and would argue that he was entitled to use the commons as before.	23
The legal code provided no way of clarifying and resolving this issue. Only through the practice of the courts, therefore, can we learn how such situations were regarded. The appeal court for southern Sweden (Göta Hovrätt) turned to Charles XI to ask him how they were to adjudicate such cases. In 1689, the king replied that farms with reduced tax levels should be allowed to retain their old rights, in spite of complaints from their neighbors. The fact that their tax burden had been reduced should not be interpreted to mean that they had been barred from their customary rights to the commons, the king explained, otherwise the other peasants of the village, whose taxes had not been permanently reduced, would profit unreasonably. "They, who have always been able to pay their taxes with what they have, would then seize a right to a larger share of the commons, without having to pay more for it."35 The king's response is interesting because it shows that he took for granted that it would be difficult or impossible to adjust the tax level upward (for villagers who wanted to make greater use of the commons). Instead, he proposed to conserve the old village structure, regardless of the fact that taxes and land were no longer in strict proportion to each other.	24
But this one statement must not be taken as an exhaustive answer to the question of how such problems were solved in general. On the whole, the words of the law or the taxation system are not descriptions of human practice. No doubt, holdings were sometimes subdivided below the stipulated level, the internal property structure of villages was sometimes upset, and taxes and land resources did not always correspond perfectly. But it is of vital importance to know that these rules existed: First, because they bear witness to the intentions of the state and second, because otherwise legal disputes would be totally incomprehensible.	25
From the reign of Gustav Vasa onward, it is possible to give at least rough estimates of how landed property was distributed within the population or, to be more precise, between the different social estates (see Table 1). It is important to note that these figures show the distribution of farmsteads, regardless of their size. Also, the table does not include land that was not part of farmsteads, like the immense wooded areas of northern Sweden. The figures thus do not describe the property structure at the level of acreage, but at the level of cadastral units—the unit of interest to the state on whose written documents we rely.	26
Table 1. The Distribution of Farmsteads (hemman) in Sweden, 1521–1850   Percentages Year Crown/State Nobility Church Freeholders New Groups 1521 5 22 21 52   1560 28 22 0 49   1654 20 40 0 40   1700 33 33 0 33   1850 10 15 0 60 15   Source: Janken Myrdal, "Jordägandet i Sverige. Från 1500–tal till 1800–tal," Folkets Historia, no. 4 (1988): 42–52 (calculations based on the works of several other historians).
Table 1 reveals the strong presence of the nobility in the mid-seventeenth century; many noblemen had received land in return for services rendered to the Crown in wartime. It also shows how state-owned landed property increased around 1700, with the massive repossession of Crown land (reduktionen) initiated by Charles XI. Most important, it shows how a remarkable proportion of the Swedish hemman was owned by its occupiers (even if this share fell between 1521 and 1700). This could be compared to the situation in England, where it has been estimated that only between a seventh and a tenth of the cultivated acreage was in the hands of freeholders at the end of the eighteenth century.36 Sweden was a country dominated by peasant family farms, many of which were owned by the families concerned. To a large extent, the increasing predominance of peasant owners during the eighteenth and nineteenth centuries was a result of their activity on the land market. Money was invested in land. Contributory reasons for this were, First, that the state decided to sell off many of its farms to the tenants and, second, that legislation was changed around the year 1800, allowing non-noble persons to buy farms and manors to which the nobility had previously had an exclusive right.	27
If ever there was a heyday for the Swedish nobility, it was in the middle of the seventeenth century. Their share of the hemman reached unprecedented levels at that time, and, on top of the 40 percent shown in Table 1, many noblemen had the right to levy taxes on freeholders.37 Moreover, noblemen were politically influential (especially during regencies), as councillors of the realm and as dominant members of the Diet. They held key positions within the central bureaucracy and some of them had legal training. From previous research, it is clear that the law was affected by the dominance of the nobility.38	28
But it is equally important to stress the limits of noble influence. For example, Sweden had a relatively high degree of judicial uniformity. State law (that is, the rural and urban legal codes) predominated, and the scope of manorial law was comparatively reduced. We know that counts and barons (Swedish grevar and friherrar) were endowed with the right to adjudicate all cases within their territories. But in exercising that right, they used the same set of rules as the ordinary hundred courts, and their verdicts were scrutinized by the royal appeal courts, even if some noblemen strove to free themselves from these restrictions.39 Noblemen enjoyed the privilege of having their internal disputes tried immediately in the appeal courts, but disputes between a nobleman and a peasant, for example, would first be tried by the local hundred court, in which peasants sat as lay judges. The rural legal code even included norms regulating the relationship between landlord and tenant.40 Even if these norms were in no way exhaustive, leaving many things to be decided by the parties, they nevertheless bear witness to the strong force of state law.	29
In view of these facts, it might seem surprising that many Swedish historians have found the notion of a transition from community law to state law (developed by Bruce Lenman and Geoffrey Parker) particularly applicable to the seventeenth-century situation.41 Would it not be more correct to say that from the beginning of this century at least, Sweden had a fully fledged system of state law? When Swedish historians have taken the opposite view, emphasizing the prevailing importance of community law, it is because there was obviously great scope for local interpretation of state law. Consequently, the use of concepts such as community law within this historiographic tradition says nothing about the origins of the norms that existed—most written rules were state-sanctioned—but it does say something about what happened to those norms when they were applied to tangible situations. When the importance of state law is said to increase toward the end of the seventeenth century, it implies that the central state enforced its control of local practice in a way it had previously been unwilling or unable to do, not that state control begins then.	30
Part III. Claims to Property Based on Immemorial Prescription—a Study of Swedish Norms and Practices in the Seventeenth Century A Worried King and Ambivalent Lawyers
The rural legal code named after King Christopher and promulgated in 1442 includes an enumeration of five means of acquiring title to land: inheritance, purchase, exchange, gift, and pledge. But then it makes an important addition: "all that is acquired lawfully is acquired rightfully, and all that is acquired unlawfully is as if it had never been acquired, until immemorial prescription arises; and wherever immemorial prescription arises, it is acquired lawfully, and no one may cast doubt on it."42	31
So in reality there were six legal ways of becoming the exclusive owner of land, and the last one held a special position since, regardless of the situation ("wherever"), immemorial prescription was always to be respected. Immemorial prescription meant that if a person held land without being able to produce any document confirming his rights, he would nevertheless be respected as the lawful owner as long as no one was able to present evidence to show that he in fact had no right whatsoever. In other words, these rules put the whole burden of proof on the other parties concerned, not on the person claiming immemorial prescription.	32
The brief and incomplete character of this clause is not exceptional. The legal code as a whole is full of short and intriguing formulations. Sometimes, provisions of different parts of the code seem to contradict each other. Sometimes, important areas of life are simply left unregulated. Finally, the code contains rules and statements that were strikingly at odds with the actual legal situation in seventeenth-century Sweden.43 The need for interpretation and explanation is obvious. As for the provision concerning immemorial prescription, it had the potential to clash with two other parts of the legal code.	33
First, the Byggningabalken, the section dealing with villages/hamlets, contained meticulous rules on the use of land, regulating the rights and organizing the duties of hamlet members. For instance, it prohibited individual members from turning common land into arable without previous permission. The amount of arable a person held was to be in strict proportion to his share of the hamlet. Anyone who infringed these prohibitions ran the risk of losing this "extra" land and, in consequence, the labor invested in it. He could also be fined. Moreover, the law gave detailed (but not entirely clear) instructions as to how to punish someone who had mown a meadow or reaped a field belonging to someone else, and it clearly stated that members of one hamlet could not use resources belonging to another.44	34
Second, the Konungabalken, the section dealing with the rights and duties of the monarch, said that a king was not entitled to reduce the rights of subsequent kings (that is, to give away or sell Crown land). Should a monarch do so in spite of this prohibition, the new king would be entitled to take back the land, but only with the help of the law (that is, not arbitrarily).45 This rule played an important role when Charles XI argued his right to repossess Crown lands in the 1680s.46	35
To summarize, the legal code said that if the internal property structure of a village/hamlet had been upset, so that one family held more than their share entitled them to, then this land was to be taken from them. It also said that if an unwise king had divested himself of land (or other assets) belonging to the Crown, then his successors could reclaim this land. The function of both rules was to make possible adjustments to the property structure, providing legitimate reasons for taking land from someone who, consciously or otherwise, held land to which someone else had a better claim. But alongside these rules there were the words about immemorial prescription, demanding unlimited and unconditional respect for possessions built on this claim. What happened if one of the parties to a dispute adduced the section on hamlets and the other party chose to claim immemorial prescription? What happened to the rights of the Crown if the opposing party chose to invoke prescription?	36
The following example provides tangible evidence for the kind of conflict that could arise. In a letter addressed to one of the government offices (Kammarkollegium) in 1690, Charles XI pointed out that in the county of Gotland many farms had in the past been granted a tax reduction. As the king had understood it, many Crown-owned farms had lain deserted for long periods and then, when a new tenant had finally been found, the Crown was forced to reduce the tax burden to make the project viable and thus lost revenue. Freeholders within the same hamlet very often had twice or three times as much arable land as they had had in 1652! Angrily, the king surmised that these freeholder peasants had taken the opportunity of usurping land while the Crown farms lay vacant and now, after a substantial period of time, were claiming the right to retain this land, invoking immemorial prescription.47 The following year, the king ordered that the civil administration investigate the whereabouts of a number of "lost farms" in the county of Uppland. The taxes due from these units were estimated at 2,000 silver daler. Moreover, it was reported that several farms belonging to the nobility "are nowhere to be found." The king suspected, as in the case of Gotland, that the land belonging to all these farms had in fact been incorporated into neighboring estates.48	37
Thus, incorporating or usurping land within one's hamlet, contrary to the obvious interests of the rightful owner (in this case the Crown), could be defended after some time with reference to use since time immemorial. It is clear from this example that the king condemned these practices as unlawful. And yet the legal code stated that prescription was always to be respected. Therefore, the problem for the Crown (and its representatives) was twofold: to prove in each case that possession had not existed since time immemorial in any reasonable sense and to clarify the law, so that it became apparent in which cases the immemorial prescription clause did or did not apply.	38
Before the reign of Charles XI, though, the dominant view was that prescription was a highly valuable legal institution. Some lawyers and scholars were aware of the contradictory rules, and the problems they could entail, but their concerns were not strong enough to influence legislation and practice in any appreciable way. To understand these matters, the Roman Law concept of possessio is crucial.	39
In the seventeenth century, the possessio concept had become increasingly important in Swedish legal practice. To be the possessor of land entailed certain procedural and economic advantages, namely:	40
A possessor did not have the burden of proof (onus probationis) in the event of his landholding being questioned. A possessor had a right to the produce from his land. A possessor was also presumed to be the rightful owner. A possessor was generally believed to be more trustworthy than somebody with no land.49
The consequence of these principles was that, from the moment a person took possession of a parcel of land, he acquired a strong legal position. Swedish lawyers accepted this. At the same time, they were aware of the dangers that such rules entailed. The problem of distinguishing rightful from nonrightful possession became of paramount importance. Possession had to be defined strictly and narrowly, so as to prevent the simple fact of holding land being used as a sign of rightful ownership. Of course, this assumed particular importance in a society in which most of the land was held by peasants, many of whom were tenants.50 For the Crown and the nobility, it became important that their tenants could not be reinterpreted as owners.51
Thus, two conflicting interests were closely connected with the concept of possessio. On the one hand, it was deemed crucial to grant security of tenure to rightful possessors. The value of "peaceful possession" (rolig possession) was often invoked. On the other hand, it was deemed equally crucial to intervene against all nonrightful possessors. These observations about seventeenth-century Swedish land law correspond closely to what Charles Donahue Jr. has highlighted as a central problem of Western law in general, namely the question of how to handle wrongful possession.52	41
Against this backdrop, it is not surprising that immemorial prescription attracted the attention of Swedish lawyers and legislators in the seventeenth century. The extreme brevity of the legal code (saying no more than has been quoted above) and the close connection with the problem of wrongful possession made legal clarification indispensable. From the beginning of the century, several drafts of a completely new law were prepared in which various aspects of immemorial prescription were discussed: the number of witnesses required to support such a claim, the age of such witnesses, and the time required to qualify as "immemorial." The last question was particularly difficult, being in a sense self-contradictory. If the word immemorial (urminnes), meaning "beyond memory" or "what no man can remember," were to be taken literally, a landholding whose origin was said to be beyond the memory of all living men could not be measured in terms of years (since people's ability to remember varies). If trustworthy men affirmed that they did not remember anything that could cast doubt on the legality of the possession, then nothing more could be said.	42
Georg Stiernhielm and Claes Rålamb, both prominent lawyers of this period, discussed the prevailing interpretation of immemorial prescription, pointing to the dangerous potential of the law and stressing that prescription must not be accepted in disputes between hamlet members, between different hamlets, or regarding common, undivided woods. Rålamb was particularly eager to condemn acceptance of immemorial prescription in disputes concerning woods. There was "a great misunderstanding in our country," he wrote, whereby many tried to usurp property "in the great woods and wastelands titulo praescriptionis."53	43
These observations support the impression that immemorial prescription was seen as a problem by some seventeenth-century lawyers and legislators, since it blurred the neat distinction between rightful and nonrightful possession. But the legal discourse was ambivalent. Despite critical remarks like those above, most commentators concurred in the view that immemorial prescription was a highly valuable legal institution. It was defined as "holding something with care and without interruption, and winning it through use."54 It was even frankly stated by some commentators that prescription was a way of taking possession of someone else's property and subsequently obtaining the right to keep it, and still their attitude was appreciative.55	44
One of the main arguments for accepting immemorial prescription as a means of acquiring title was that it put an end to never-ending disputes. It was also argued that boundary marks were often flawed and could not be trusted in disputes over borders; immemorial prescription, by contrast, was described as highly trustworthy (semper inviolata manet).56 Above all, property relations were said to become unequivocal and secure if prescription was respected. A landholder should not have to be tormented by an unceasing fear of losing his property. Of course, this line of reasoning brought the interests of the actual user/possessor into focus, to the detriment of a possible rightful owner. If the latter had lost possession of his land or never taken possession of it (for example, an heir), then his position was weak as compared with the person who currently held the land.	45
Legal commentators were fully aware of the implications for rightful owners but continued to support the case of possessors, underpinning their standpoint by referring to the common good. "Thus, conforming to all that is right and reasonable, prescription is certainly highly reasonable if we consider the common good, even if it may appear unreasonable if we consider the private good, but the common good is always to be preferred before private interests."57	46
Moreover, they considered that their interpretation of the legal code, which gave claims of immemorial prescription a strong position, served two important ends. "Considering the private person, we must add a purpose [that is, of prescription] no less important, and this purpose is twofold: with respect to the user, that he be indemnified, and with respect to the previous owner, that his lack of care or attention be chastised and punished. Yes, the laws assist the vigilant and improve their position."58	47
Thus, accepting claims based on immemorial use was seen as a way of encouraging people to take good care of the land in their possession. Those who were attentive and vigilant deserved to be protected by the law. To deprive them of property in which they and their ancestors had invested labor would be a gross injury. By contrast, those who were negligent, letting their property lie unattended, had a considerably weaker position. They were said to have given their tacit consent to the transfer of their land to the current user. Accepting claims of immemorial prescription was seen as a way of either inducing such persons to change their behavior or of punishing them.59 "Immemorial prescription is a punishment for him who does not keep a watchful eye on his property," said the law commission of 1633–1665.60	48
The legal discourse reveals how the interests of the possessor were given priority for at least two reasons: to encourage good and industrious behavior and to penalize inattentive behavior. This way of constructing and motivating property rights, including elements of both stick and carrot, reflected the strong emphasis on the common good that characterized early modern society.61 Individuals should not only expect protection from the state and the law; they could also be forced, if necessary, to behave in a way that was beneficial to society as a whole.	49
Absent Owners and Deserted Farms
Seventeenth-century legal cases provide a clearer view of the social situations in which the immemorial prescription argument would normally be used. The following part of this article is built on a sample of eighty-four disputes involving claims of prescription that have been the subject of an in-depth analysis. First, Table 2 shows a breakdown of these cases according to the kinds of economic resources over which they had arisen. Table 3 then shows the social categories to which the parties belonged. Finally, Table 4 presents the outcomes of the cases. With this as a quantitative background, I then describe some of the cases more fully.	50
Table 2. Property Disputes Involving Claims of Immemorial Prescription. Royal Court of Appeal in Stockholm (Svea hovrätt), 1615–1679   Subject-matter of dispute Number of cases Boundaries 25 Individual pieces of arable or meadow land 20 Mill 6 Crofter's holding 6 Woods 6 Entire farm/estate 2 Minor land unit in another village* 2 Water 1 Not indicated 16 TOTAL 84   Source: Svea hovrätts arkiv, Riksarkivet, Stockholm. * Swedish utjord. Table 3. Social Origins of the Parties in Cases Involving Claims of Immemorial Prescription. Royal Court of Appeal in Stockholm (Svea hovrätt), 1615–1679   Social group Plaintiff Defendant Councillor of the realm 13 8 Other nobility 36 33 Peasantry 18 16 Burghers 2 4 Clergy 3 3 Civil servants 3 4 Institutions 1 2 Mixed 2 7 Unknown 6 7 TOTAL 84 84   Source: see Table 2. Table 4. Outcomes of Property Disputes Involving Claims of Immemorial Prescription. Royal Court of Appeal in Stockholm (Svea hovrätt), 1615–1679   Period Claim of immemorial prescription accepted immediately Claim of immemorial prescription not accepted Decision to survey the contested area Remission, adjournment, etc. 1615–1624 3       1625–1634 4     1 1635–1644 4     2 1645–1654 8 1   1 1655–1664 13 1 5 2 1665–1674 13 2 9 9 1675–1679 2 2 3 3 TOTAL 47 6 17 18   Source: see Table 2. Remark: That the total is eighty-eight, and not eighty-four as expected, is because four cases had to be assigned to two different categories. See Maria Ågren, Att hävda sin rätt. Synen på jordägandet i 1600–talets Sverige, speglad i institutet urminnes hävd (Stockholm: Nerenius and Santérus Förlag AB, 1997), 159.
The most frequent question giving rise to disputes was that of boundaries. The predominance of such cases is even more marked if we regard disputes over individual plots of land (arable or meadow) as a form of boundary dispute; what was at stake was whether or not a certain piece of land was within the legal boundaries of the property in question.62 Clearly, many of these cases dealt with where one estate ended and the next one began. This is illustrated by the following two cases.	51
In 1650, Anders Palmcrona instituted legal proceedings against Maria Stengafvel, claiming that the latter had let her tenants cross the legal boundary between Palmcrona's estate of Mälby and Stengafvel's estate of Bjursnäs. As a consequence, the domain of Bjursnäs had been extended. Three crofters' holdings were said to have been erected on this new land. In her response to Palmcrona's accusations, Stengafvel stated that her ancestors had held this part of the estate for around a hundred years without their possession of it ever having been questioned. The legal boundary was said to run along a certain stream. The local hundred court found in favor of Maria Stengafvel, confirming her rights on the basis of use since time immemorial of the land to the west of the stream. Anders Palmcrona did not remain silent, however. Three years later he lodged an appeal with the Royal Court of Appeal in Stockholm.	52
According to his petition, Anders Palmcrona had first visited Mälby in 1648, after receiving the estate from the Crown. On his arrival he found that the farmhouse had become rotten, and he ordered the tenant to fell timber where he was wont to do so, west of the aforementioned stream. Subsequently, Maria Stengafvel confiscated the timber. Faced with this problem, Palmcrona proceeded to ask his other neighbors about the boundary. One of them replied that a previous estate bailiff of Mälby had in fact opposed the claims of the Stengafvel family, but the bailiff had died and Mälby had been returned to the Crown. Another neighbor reluctantly told Palmcrona about the boundaries in the hamlet. Palmcrona discovered that the Bjursnäs farms had better woods than the adjacent Mälby farms, despite the fact that Mälby was as heavily taxed as Bjursnäs. Since taxation was generally in proportion to land resources, Palmcrona concluded that the stream could not reasonably be the correct boundary, but that the latter must be further west, thus including land currently occupied by Stengafvel's tenant and forming part of Bjursnäs. When his opponent produced local witnesses to testify that the boundary had never before been questioned, Anders Palmcrona retorted: "[Maria Stengafvel] has made this land her own through use, violating the stupid man [that is, the previous tenant] who sat here in great poverty and who often had to ask the same lady for assistance in his deep need."	53
Because of his economic and social dependence on her, the previous tenant had never dared to question her transgression, being a "coward." Furthermore, Palmcrona argued that many peasants, above all those who were tenants of the Crown or the nobility, cared little about the legal boundaries of their farms and even less about the boundaries of others. He finally concluded that if he could not reclaim this usurped land, the expectations he had had on receiving the estate from the Crown would be seriously disappointed.63	54
In 1664, Carl Andersson claimed rights to land situated in the hamlet of Ängeby and in the possession of Karin Månesköld. Andersson, who served in the army, held a Crown estate (called Flat) on certain terms. Though he was not the legal owner of Flat, he brought claims against Månesköld, having found that between 1554 and 1584 a parcel of land currently used by her had in fact been part of the Flat estate. She replied that she held the contested land by virtue of immemorial prescription. Andersson directed the court's attention to the fact that the owners of Flat had always been taxed for this land, although it had been lost since 1584. He also asked the court to observe that the hamlet of Ängeby had once consisted of five farms but now included six within its boundaries. This suggested that the land he now claimed had been transformed into a small farm in its own right. Moreover, he denied that immemorial prescription had arisen, since in 1653 and 1655 a peasant of Ängeby had testified that he could still remember that this land had once been part of the Flat estate. The court found in favor of Karin Månesköld. One of the reasons for this decision was that in 1658 an investigation of the situation in Ängeby had revealed that the disputed land could not be found. Furthermore, the judges added that immemorial prescription had arisen and that the title was exceptionally strong and no further claims against it would be allowed.64	55
Boundaries and the actual layout of property in the physical landscape have to be actively upheld by human society. This can either be done by memorizing such facts (and respecting memory), or else society can free itself from the burden of having to remember by putting the information in writing. The seventeenth century was a time of precarious coexistence between these two methods. Written documents abounded, but they were not always sufficiently elaborate to solve concrete problems. Oral testimony (like that relied on by Carl Andersson and Anders Palmcrona) was sometimes likely to be partial. And what happened if for a period of time the place in question had been empty and no one had preserved the local memory?	56
It is interesting to see to what methods the parties and judges resorted to reach their conclusions. In these two cases, as so often happened, the tax system was invoked. If parcels of land had been lost and, consequently, the balance between resources and burdens had been upset, then the old tax could testify to this. Flat had obviously lost some of the land on the basis of which its tax liability had once been calculated, but it continued to pay its old rate of tax. Anders Palmcrona discovered that his estate included less woodland than adjacent ones, even though the tax was the same. Some litigants who had been deprived used the fundamental tax principle—that tax burden should be proportional to tax-paying ability, that is, to material resources—as an argument for their right to have more land. Others refered to their shares of the village.65 In both cases, the fundamental argument was of course that the opponent was guilty of encroachment. But if a long period had elapsed (sixty-eight years in the Flat case), vindication was seldom possible. Flat used to be part of the Crown domains, and it had been the duty of the bailiff to see to its rights. Since he had failed to do so in time, prescription applied and Carl Andersson's later attempts to seek restitution were to no avail.	57
The two social categories appearing most frequently as parties to disputes involving claims of immemorial prescription were the nobility (including the aristocracy) and the peasantry (see Table 3). Since the property of these two groups was in the countryside, claims of immemorial prescription were mainly (but not exclusively) a rural phenomenon. The large proportion of noble litigants is explained partly by the fact that they were substantial landowners at this time (compare Table 1) and partly by their right to use the appeal court as a court of first instance (when settling disputes with other noblemen). But the position of plaintiff must not be confused with that of initiator of a dispute. In some cases, the court records disclose that it was really the tenants of the nobleman/plaintiff who had started the quarrel with other peasants.66 In a sense, their lord was only following their lead and, if he did so, it was because the peasants were often the only people who really knew where the boundaries had been according to tradition. In a situation such as that of mid-seventeenth century Sweden, where so many men had recently been ennobled and some of them were abroad as military officers, guarding boundaries and preserving the memory of old rights had to be left to their tenants.67	58
In 1671, the Royal Court of Appeal in Stockholm attempted to settle a dispute between the hamlets of Brunn and Fåglevik. Brunn was a hamlet of freeholders, and Fåglevik was used by tenants of the aristocrat Erik Oxenstierna. The freeholders argued that the tenants had encroached on their land, enlarging their holdings so that what had once been a very small farm was now two substantial farms. According to the freeholders, they would be ruined if they could not vindicate their right to this land, which was theirs by virtue of use since time immemorial. The spokesman for Erik Oxenstierna and Fåglevik replied that their hamlet was really much older. Furthermore, they should have as much meadow land as Brunn, and larger fishing waters, because Brunn and Fåglevik had been assigned the same tax in 1618. In the present situation Fåglevik could barely support itself, while the freeholders had such large meadows that they were unable to mow them all and had to resort to selling the surplus. Finally, the spokesman retold a tale that said that once upon a time all the inhabitants of Fåglevik had died, except for an old widow. At that time, a person who held all of Brunn had usurped the contested area.68	59
Tales of earlier periods of desertion, sometimes caused by pestilence, were put forward in other cases as well.69 So was the argument about meadows, based on the premise that everyone should have enough to meet his essential needs (husbehov) but not sufficient to produce and sell a surplus. Finally, a third argument was frequently used, phrased as follows in the Brunn/Fåglevik case: "And if they have established a right to this meadow by prescription, why did they give up half of it in 1625, thus showing that they in fact had no right whatsoever?"70	60
Here, Fåglevik referred to an agreement once reached between the two parties and fatal to the freeholders of Brunn. Not only had they taken advantage of the weaker position of Fåglevik when the hamlet lay practically deserted; they had also failed to assert their rights manifestly but had appeared to acknowledge the rights of the other party by accepting the settlement of 1625.	61
In 1650, Major Johan Blanck was ennobled. Two years later he retired to his inherited estate of Lingared. Around 1655, he began court proceedings against two of his peasant neighbors, Olof Svensson and Per Andersson, claiming a right to parts of their landed possessions. In the local hundred court, he produced a title deed from 1406, claiming that it had belonged to one of his ancestors and that the land mentioned in the document was identical to the contested area. The hundred court found in his favor, granting him as much as two thirds of his neighbors' land, despite their claims of immemorial prescription. Olof Svensson and Per Andersson subsequently lodged an appeal with the Royal Court of Appeal in Stockholm.	62
In a letter to the appeal court, Blanck presented his own interpretation of how this alleged immemorial prescription could have arisen. He argued that during a particular period his entire estate had been used by its neighbors. They had, he said, moved their boundary marks onto his estate, thus encroaching on land, contrary to the explicit prohibition of the legal code. However, the court of appeal changed the verdict of the primary court, giving the land back to the peasants and stressing that immemorial prescription was a strong mode of acquisition, always to be respected.71	63
In this case the local court did not favor the peasants, despite the fact that local peasants sat as lay judges there. Instead, it was the court in Stockholm that reinstated them. Just as in the cases mentioned above, the rightful owner was said to have been absent or negligent. The land had not lain unused, though; it had been mown to the benefit of the neighboring farms, thus increasing their wealth. There are many other similar cases in which one of the parties claimed that for a period of time the land had been totally deserted and depopulated and that the opposing party had taken advantage of this situation. It was frequently very difficult, and at times impossible, to check the veracity of such claims.	64
By accepting immemorial prescription as a means of acquiring title, the judiciary encouraged people to care for their property and to guard it vigilantly. Those who failed to act when their rights were threatened ran the risk of losing those rights. They were regarded as having given tacit consent to the transfer of their land. Clearly, this was how the owner of the Flat estate and Johan Blanck were viewed, that is, as owners who had relinquished their lawful rights by failing to be active and attentive in due time. This was also how Anders Palmcrona regarded the previous tenant who, like a coward, had failed to withstand the attacks of the Stengafvel family. Here, there was a striking similarity between the cultural norms surrounding immemorial prescription and those connected with English custom. Just as the owner had to be active and present in the English case,72 so too did his counterparts in Sweden.	65
It is interesting to look at the Brunn case from this point of view, and especially at the argument quoted above. Here we see an example of how the parties were prone to interpret every single action by the other party as a sign of indulgence and lack of will to defend his or her rights. Therefore, it was of paramount importance never to give in, never to yield an inch to one's opponent, never to stop asserting one's rights.	66
This emphasis on clear and undaunted behavior by an owner could lead to a surprising acceptance of violent action. In a case between Lady Anna Skytte and the mayor of the town of Södertälje (1670), the parties could not come to an agreement as to the rightful position of the boundary between Södertälje and the Skytte estate. Both parties claimed a right by immemorial prescription to the same parcel of land (characteristically called "the deserted meadow"). Anna Skytte was said to have put up a fence that the mayor had subsequently torn down. At the Royal Court of Appeal in Stockholm, Anna Skytte accused the mayor of outrage and violence, but he retorted that it was really Lady Skytte who was guilty of violence, having attempted to encroach upon land belonging to the town. The mayor went on to argue his right and duty to defend town property, including the act of demolishing the fence. He had only "defended what we have in our hands" and, by thus defending the town's possessions in due time, had prevented the claim of immemorial prescription.73 The logic of the argument was that it was better to act, even if this involved violence, than to give the impression of not being the rightful owner of the contested area. Once again, while it was not "custom" in the English sense of the word, the cultural understanding of immemorial prescription was close to that of custom. Consequently, the distinction between lawful defense of one's rights and unlawful violence was indistinct, in the same way as E. P. Thompson has described for custom: there was a "Fine-drawn line between the assertion of 'right' and 'riot.'"74	67
The value of action emerges from a case heard in 1616, recorded in the archives of a local hundred court.75 A bailiff by the name of Truls Persson was accused of having usurped the land of his opponents, using it as part of his own farm in the village of Karås, Öland. Truls replied that he had not taken more land than his mother-in-law had shown him, saying that this was what she and her late husband had always used as theirs. However, the neighbors who were present denied that the old couple had ever used this land. A man called Nils Larsson asked Truls why he had not given up using the land after Nils had written to him, explaining that he had made a mistake. A woman in the same village also told the court that when Truls's wife had been raking the meadow of this said woman, she had gone up to her, asking her why she was raking a meadow belonging to someone else.76	68
This case is especially pertinent because it shows that Truls's opponents tried to prove that Truls and his wife had repeatedly been told that they were using someone else's land. They wanted to demonstrate that they had acted decisively, never giving in or being indulgent. They had in fact indicated where the boundary was, not by physical boundary marks but in social interaction with the opposing party. One may wonder why Truls and his wife did not argue in the same way, pointing out that they had used the land continuously and were thus defending their rights. It is difficult to explain this, partly owing to the lapidary character of the sources (perhaps they did use the argument, but it was never entered in the judgment book). It is possible that Truls's position as possessor was so obviously strong that he did not need any extra arguments to support his claims. But it is also possible that his position was so obviously weak, with all his neighbors against him, that it was useless to try to pretend that his use had been rightful and had never been questioned.	69
Part IV. Explaining the Respect for Immemorial Prescription in Three Steps
With the preceding analysis of the literature of jurisprudence and legal cases as a backdrop, it is possible to address the question of why claims based on immemorial prescription often met with approval in the earlier part of the seventeenth century.	70
It might be argued that this question is of little interest, since it can easily be answered by referring to the state-sanctioned legal code and its categorical stipulation that "wherever immemorial prescription arises, it is acquired lawfully, and no one may cast doubt on it." But this fails to take into account the complexity of the legal situation and to explain why this particular part of the legal code was upheld against other parts with which it was at odds. It also fails to explain why the attitude to prescription began to change before these words were altered by legislation.	71
The task must be to explain why a particular interpretation of the legal code first predominated and then lost ground. To do this, several factors on different levels of society must be evaluated. In a short-term perspective, the political situation can be shown to have had an impact. In a somewhat longer perspective, the character of the legal system—community law or state law—becomes relevant. Finally, in a very long-term perspective, it is useful, I argue, to take into account fundamental traits of the society: its economic system and demographic situation.	72
1. The Political Situation
As has already been observed, the seventeenth century was the heyday of the Swedish nobility. They acquired an unparalleled position of power and influence, challenging the position of the monarchs and of the other estates, most of all the traditionally strong peasantry. But there was also conflict and antagonism within the nobility, which included both aristocratic families of medieval origin and recently ennobled families. Conflict evolved around political privileges and rights to landed property.	73
In this context, rights and privileges were often described as age-old traditions. Lars-Olof Larsson has shown how the manorial jurisdiction was described as an "old usage" when the nobility, unsuccessfully, tried to persuade the Crown to grant them this privilege in the seventeenth century.77 Sven A. Nilsson has demonstrated how in the preceding century, the nobility wanted rights to be "given back" to them, rights that were said to have once been in force. Here, the medieval situation was held up as an ideal that had later been lost.78 Likewise, the nobility argued, against the other three estates (at the Diet in the 1650s), that the most prominent offices had "of old" been their privilege.79 For this reason, the nobility also focused on genealogy.80 For example, in an internal struggle, one noble family used its allegedly "ancient" origins against another family, which had come to Sweden as late as in the fifteenth century.81 It was of paramount importance to be able to show that your family and your rights were old, particularly perhaps for those who were really "new men."82	74
In this context the frequent use by noblemen of the immemorial prescription argument becomes comprehensible. Emphasizing the age of their rights was how they would always argue, in political situations and in civil litigation. Thus, without being the exclusive property of the nobility,83 the immemorial prescription argument was nevertheless strongly linked to the social project and political ambitions of this group. But this may also have been a factor behind the growing illegitimacy of the claim.	75
Claims built on tradition and long use are easily manipulated and misused. As Gerald Strauss has shown, this was exactly the view taken by skeptical lawyers in sixteenth-century Germany. "Whatever serves the interest of someone is called 'an ancient custom' and insisted upon with fierce determination," one of them said contemptuously.84 E. P. Thompson has also underlined how the concept of "custom" could be used to cover "unwritten beliefs, sociological norms, and usages asserted in practice but never enrolled in any by-law" and how, consequently, legal experts would display suspicion against claims based on this type of custom.85 In the Swedish case, we can also discern a point at which discomfort with and suspicion of the legal situation began to grow. As Table 4 shows, lawyers were becoming increasingly cautious with regard to such claims toward the end of the century. This can be attributed to the increasing influence of professional lawyers (who played an important role in the Royal Court of Appeal in Stockholm). But high politics also influenced the legal situation.	76
In the 1680s, large areas of former Crown land were repossessed, contrary to the interests of the nobility (see Table 1). In the Diet debates, the nobility tried to press the point that they held their estates on the ground of long use and prescription. Therefore, they argued, repossession was impossible. Here, on the level of political discourse, the fact that many noblemen had de facto been absent owners was left without comment—a fact that was crucial to the legal understanding of prescription. Against this, proponents of the repossession (like Erik Lovisin) argued that there was an important difference between ius privatum and ius publicum. In a state of public emergency, it would be unreasonable to demand that the Crown should respect civil law. Therefore, no member of society could claim prescription against the Crown.86 General acceptance of the principle of praescriptio non currit in coronam (no prescription against the Crown) was a prerequisite for the repossession.	77
Accepting the principle that prescription could never be claimed against the Crown was crucial to the outcome of the political crisis of the late seventeenth century, and it definitely undermined the social position of the nobility. It did not directly affect legal relations between members of society, though. Immemorial prescription was still a means of acquiring title to property, basing its authority on the wording of the old legal code. But when a new Law Commission was instituted (to undertake a complete overhaul of the old legal code), it recruited its members precisely from among the judges of the Stockholm Court of Appeal and the advocates of a repossession of Crown lands (such as Erik Lovisin and Erik Lindschiöld). There were thus important personal links between political upheavals and legal change.	78
An examination of the amendments made to the sections dealing with landed estates (Jordabalken) and rural communities (Byggningabalken) shows that the contradictions and obscurities were problems of which the commission was keenly aware. The important passage about disputes over boundaries between hamlets and the provisions pertaining to immemorial prescription were greatly extended and clarified. The commission stated emphatically that immemorial prescription should never be respected if it upset the internal property structure of the village. Prescription could not be used to legitimize a disproportion between village shares and acreage. It also underlined the principle that Crown land could not be alienated by prescription. These clarifications eliminated the earlier contradictions between crucial sections of the legal code.87	79
The members of the commission discussed at great length whether individuals claiming immemorial prescription were still entitled to exemption from the burden of proof, that is, to enjoy the advantages conferred upon possessors by legal doctrine. Should they henceforward be forced to prove their case in a more substantial way than by merely calling on the testimony of elderly members of the local community? On this point, the members had differing opinions, with Erik Lindschiöld advocating a stricter treatment of those who claimed immemorial use. The outcome of these discussions was that judges were to assume that such claims were legally valid, but that they were no longer exempt from further legal action.88	80
The commission also paid attention to situations in which abandoned land was reoccupied, demanding that such reclamation must always be overseen by the royal bailiff and not, as previously, by members of the local community. Some commissioners argued that using other people's land, in contempt of boundaries, should be classified as a form of theft. In this respect, the new law was stricter, compared with the medieval legal code, with its forbearing attitude to such practices within rural communities.89	81
In the detailed minutes of the law commission, small but important changes in the legislators' view of the law can be perceived. They indicate a more skeptical attitude toward claims of immemorial prescription or claims based on traditional rights in general. Even if immemorial prescription was not abolished (it was included in the new legal code promulgated in 1734), its scope was considerably circumscribed. If legal doctrine had previously tended to protect the person claiming entitlement based on use since time immemorial, growing attention was now devoted to those who could base their claims on the "normal" modes of acquisition, chiefly inheritance and purchase.	82
2. The Legal System
As long as the Swedish nobility was politically strong, the immemorial prescription argument was respected, because it enforced the position of the nobility against the Crown. This is how the causal relationship can be expressed, but it would be an oversimplification, exaggerating the importance of politics. To achieve a more profound understanding, the character of the legal system must also be scrutinized.	83
In an influential article, Bruce Lenman and Geoffrey Parker introduced the notion of a judicial revolution through which certain elements of the European legal system—labeled "community law"—lost ground and were replaced by other elements, labeled "state law." This distinction is defined solely in relation to crime: community law is "an arbitrated yet extra-judicial settlement, usually involving the payment of money, to pacify the parties to a criminal offence."90 The focus on crime is comprehensible,91 but it seems to me that the discussion about the essential traits of community law has a wider relevance and can be used to understand how property disputes were handled in the early modern period.	84
In early modern Europe, Lenman and Parker argue, many offenses were never taken to court but were settled by the parties through private composition. These compositions were deeply embedded in a local context (hence the term community law). That is, the outcome of the conflict would differ greatly from one case to another. The idea that the legal system should work uniformly was alien to community law; instead, the character of the offender and the amount of support he/she could muster in the local community were allowed to influence how problems were solved. Therefore, community law was characterized by a lack of uniformity, Flexibility, and, to some extent, arbitrariness.	85
Crucial to a system of community law is that the knowledge needed to resolve a dispute and the power needed to enforce a verdict belong to the local community. With this general formulation, it becomes clear that changes within the property system can also be analyzed in terms of a judicial revolution.	86
In the case of Sweden, the knowledge needed to settle a dispute involving claims of immemorial prescription was held within the local community, despite the fact that the norm was not local custom but centrally codified law. People from the local community—freeholders, tenants, sometimes noblemen—were indispensable when it came to judging whether or not a given use of property really was "beyond memory." They were the only ones who could tell whether or not the contested piece of land had in fact been used continuously by the person claiming prescription (and by his family). They were also likely to know something about the boundaries around the noble estates; indeed, the locals would sometimes know more than the owners themselves (who might have recently received the property from the Crown). This could give peasants an advantage over noblemen and also over the judiciary. The lay judges of the local hundred court could have some insight into boundaries, but the judges of the appeal courts, sitting hundreds of kilometers away, had no means whatsoever of questioning the words of old and respected men. The practical difficulties involved when an outsider tried to understand local property relations thus explain the respect for local elders that was shown by the Royal Court of Appeal in Stockholm. In the case of Johan Blanck (see above), the local hundred court found in his favor, but when the case was taken to Stockholm and when the whole parish, including the local clergyman, supported the prescription claims of his peasant opponents, the appeal court changed the verdict.	87
The law could be manipulated by those within the local community who had knowledge and power. Therefore, a central issue in all disputes involving claims of immemorial prescription was whether or not the witnesses were credible and unbiased. If, on rare occasions, such claims were not respected, it was often because a witness's testimony lacked credibility.92 Legal scholars who criticized immemorial prescription maintained that it tempted people to accept bribes and give false testimony, whereas those who had a more favorable attitude were keen to emphasize that manipulation and corruption were unlikely. Claes Rålamb stressed the role of conscience and religious beliefs. Anyone who gave evidence in a dispute involving claims of immemorial prescription had to be aware of the personal risks involved, so that he did not "through [testimony of] use appropriate hell."93	88
But even if some people may have consciously manipulated the law, giving blatantly false evidence about property relations in the past, a more important sort of "manipulation" was that human memory tends to preserve only those things that are deemed important. It is impossible to remember everything, even in societies that do not change as quickly as those of today. Social memory was not impervious to such selective mechanisms, and they were an important source of flexibility within community law.94	89
What kind of things tended to be deemed important and therefore to be remembered? It is impossible to give definite answers to this question. What is striking, however, is how often the value of labor was invoked. Members of local communities seemed to give great weight to whether or not work had been carried out by one of the parties. Indeed, invested labor was something that would be remembered. This emerges in many disputes over landed property and is not restricted to those in which immemorial prescription was claimed. In a dispute from 1586, old men testified that the family currently in possession of the contested farm had "taken good care of it for twenty years and much improved it, to which all the parishioners of Tierp agreed."95 In this case, the possessor was subsequently allowed to keep the farm, despite the fact that he did not have a title deed.	90
That there was a strong connection between immemorial prescription and invested labor becomes clear if we consider the multifarious meanings of the Swedish word used in this context (hävd). This word refers to possession or prescription. It also has connotations of custom (hävdvunnen being a good translation for customary). But it also means good care and appropriate use. In the learned discourse, immemorial prescription was often legitimized with reference to the labor et industria undertaken by the possessor and his family. Members of the local community tended to remember invested labor, not so much for what the labor meant to the person in question, but for what it meant to the local community itself. Support for the claims of those who had proved themselves capable of working, and thus taking care of their land and their family, can be seen as a strategy to reduce the poverty problem, which would otherwise be a burden on the parish. In a land dispute in 1684, two families claimed a right to a certain piece of land. One of them used the immemorial prescription argument, and the local hundred court found in their favor. As for the other family, the parishioners complained that they were unable to support themselves, which hurt the parish, particularly in times of war. Consequently, this family lost. The case shows clearly how local judgments about local consequences affected the final verdict.96	91
To appreciate fully the role of the local community and local knowledge, we must also consider the extent to which written documents were used. Already in the national legal code of King Magnus (promulgated in 1350) it was said that all property transactions had to be documented in writing. The purchase deed had to contain the names of the parties, the size and position of the property, the price, the day and place of the transaction, and the names of the witnesses.97 In spite of this, however, seventeenth-century legal practice indicates that it was often impossible to adjudicate property cases solely on the basis of such purchase deeds. They did not contain the kind of unequivocal information that a judge would need.	92
For instance, many purchase deeds described the object of the transaction as "the estate I inherited from N. N." and the extent of the property as "including everything that has of old belonged to the estate."98 For the people involved in the original transaction this was sufficient information, but for a judge, living perhaps a hundred years later and lacking local knowledge, such deeds were of little use. In a dispute such as the one between Anders Palmcrona and Maria Stengafvel (see above), where the exact position of the boundary was disputed, a deed describing the estate as it was "of old" was simply not enough. It had to be supplemented with additional information, and such information was sought primarily in the local community. Over and over again, we see the judges of the appeal court trying to interpret obscure documents, asking for additional information from local people, and finally weighing the different pieces of information against one another. This is exactly how legal procedure works in a society in between oral and written culture, ac