Proceedings in divorce cases were of a special nature. It must be emphasized that they were regulated in an autonomous and fairly detailed way in the Napoleonic Code (Arts. 234–294) and in cases of this type Code de procédure was applied only as an auxiliary source of law. A divorce could be pronounced for a determined cause (cause déterminée), such as adultery, outrageous conduct, ill-usage and grievous injuries, if a spouse was condemned to infamous punishment, or by mutual consent (consentement mutuel) of the parties. Proceedings in divorces for a determined cause were regulated in section ii of the title on divorce, and the procedure of pronouncing divorce by mutual consent was governed by section iii. Proceedings concerning pronouncement of divorce due to a spouse’s condemnation to an infamous punishment were radically simplified in comparison with proceedings pending on the basis of Arts. 229–231 of the cc (Art. 261 of the cc).
3.1 Proceedings in Divorce Cases for a Determined Cause
Proceedings in divorce cases for a determined cause comprised a number of stages, which was to encourage the spouses to reconcile.1 The trial was obligatorily preceded by conciliation proceedings. Next, in the majority of cases, at least four divorce hearings had to be held at court. One example was the simplified proceedings in cases pending due to a spouse’s condemnation to an infamous punishment, which will be discussed further in subchapter 3.1.6. The first hearing (i) was held behind closed doors.2 At this point, both parties
Upon hearing the report of the judge reporter, of the parties and of the prosecutor, the tribunal rendered a judgement, which dissolved the marriage, dismissed the petition or suspended the case for the period of one year (Arts. 259–260 of the cc). This ruling could be appealed against, and the judgement could be submitted for cassation.8
Stages of proceedings in divorce cases for a determined cause (first instance):
- 1.Attempt at reconciliation
- a.Lodging the petition (demande) (Arts. 234–237 of the cc)
- b.Conciliatory hearing (Art. 239 of the cc)
- 2.Preparation of the decision to allow or deny hearing the case
- a.Permission of citation (Art. 240 of the cc)
- b.Closed session (Arts. 241–244 of the cc)
- i.Presentation of the argumentation of the defendant (Art. 243 of the cc)
- ii.Submission of the case file to the public prosecutor (Art. 245 of the cc)
- iii.Appointment of the judge reporter (Art. 256 of the cc)
- c.Second public session (Art. 246 of the cc)
- 3.Proceeding after allowing the case to be heard (Arts. 247–252 of the cc)
- a.The first public session [part 2]
- i.Report of the judge reporter9 (Art. 247 of the cc)
- ii.Statements of the parties and of the public prosecutor (Arts. 247 and 248 of the cc)
- iii.Decision concerning the hearing of evidence (Arts. 247, 249–252 of the cc)
- b.Closed session (Arts. 253–256 of the cc)
- i.Witnesses (témoins) (Arts. 253–255 of the cc)
- ii.Submission of the case file to the public prosecutor (Art. 256 of the cc)
- iii.Appointment of the judge reporter (Art. 256 of the cc)
- c.Second public hearing
- i.Report of the judge reporter10 (Art. 257 of the cc)
- ii.Statements of the parties and of the public prosecutor (Arts.257 of the cc)
- iii.Pronouncement of judgement (Art. 258 cc)
3.1.1
In the French model of civil proceedings at that time, prior to commencement of the case at a civil tribunal of first instance, it was necessary to initiate mediation (Art. 48 of the cpc).11 The mediator was, in principle, a justice of the peace. Divorce proceedings were an exception to this rule. The conciliation proceedings that preceding divorce trials were held before the president of a civil tribunal of first instance, or before a judge who acted as his substitute (Art. 236 of the cc).12 At this stage, both the petitioner and defendant were obliged to show up personally. The ratio legis behind this solution was to facilitate it for the judge to convince the spouses to reconcile, which could be more difficult if he contacted them through, or even in the presence of, court representatives.
The conciliation proceedings were initiated by the submission of a document by the petitioner, which the Napoleonic Code referred to as petition (demande) (Arts. 236–237). This document did not have to meet any specific formal requirements. Article 236 of the cc only required that the petition include causes for which the petitioner demanded divorce, along with evidence to support them.
I have encountered a few petitions for divorce in the materials covered by my query. Two of them are preserved as separate documents (the remaining ones are copies included in files). The first one was submitted by Karolina Chodkiewiczowa, and the second by Teresa Wąsowiczowa.13 Both petitions give a detailed account of the course of petitioners’ marriages and their reasons to file for divorce. Chodkiewiczowa attached letters in which her husband (in fact, correctly)14 accused her of infidelity, which she found offensive. Wąsowiczowa, in turn, stated that she would prove her accusations against her husband with witness testimonies in due time. Moreover, she included a request for authorization to abandon her husband’s house (Art. 268 of the cc).15
It also merits a mention that pursuant to Art. 235 of the cc: If any of the facts alleged by the married party demandant give ground for a criminal prosecution
The grounds of many petitions19 cited acts constituting ordinary offences (often beating, and in one case bigamy),20 but in the material studied I encountered evidence of application of this provision only occasionally. For example, in one case, the Kalisz tribunal notified the criminal court of the Kalisz district of the Kaszyński spouses’ case.21 It was most likely dictated by the fact that
In principle, the petition was submitted personally by the petitioner22 to the president of the civil tribunal of first instance, or to the judge performing his functions (Art. 236 of the cc). This action was documented in writing (Art. 237 of the cc). The president was moreover obliged to instruct the petitioner on the consequences of this submission. Indeed, in the minutes documenting the submission of the petition by Karolina Chodkiewicz, we can read that the president, having laid out the consequences of divorce, tried to convince countess Chodkiewiczowa to withdraw the petition, yet upon the rejection of his advice, the present minutes were drawn up.23
the petitioner’s husband summoned by the delegated judge to complete pre-divorce formalities showed up in person and admitted all the facts alleged by the petitioner to be true, yet owing to both spouses’
unwillingness, reconciliation could not be reached, as documented in the minutes drawn up by the delegated judge.25
In the case of the Gutkowski spouses, the president tried to persuade the petitioner to reconcile twice, yet his words did not make any impression on her.26 This wording suggests that in this case the husband did not show up at the conciliation meeting, and thus, pursuant to Art. 239 of the cc, in his absence the president only instructed the petitioner.
It is hard to tell whether the quoted phrases are only elements of the formula according to which the minutes were written, or the presidents of the tribunals were truly committed to dissuading people from divorce. Perhaps a number of cases really ended at the stage of conciliation meetings. Unfortunately, the nature of the available source material makes it impossible to estimate how often this occurred. If the meeting with the president ended up in withdrawal of the petition, minutes must have been made to record this. Nevertheless, no such document can be found in the preserved court books. Such an annotation could only be made if the information on reconciliation was relevant in some other trial (for example following another submission of a divorce petition or in a case for division of property). Yet, I have not encountered such a situation. However, since there were cases in which the petitioner withdrew the petition,27 or the spouses reached a settlement28 at the trial stage, this probably also happened at the conciliation stage. I think, nonetheless, that such cases were rare. If this had happened frequently, information about the withdrawn petitions would probably have been preserved in the documentation of the reopened cases, as probably at least sometimes the settlement reached before the president would have proved unsustainable. On the other hand, Anna Rosner’s calculations show that the “ordinary” conciliation proceedings before peace judges were highly effective in Polish conditions.29
3.1.2
If mediation attempts failed, the tribunal, having heard the report of the president or of the judge acting in his substitution, either authorized the petitioning spouse to formally cite the other spouse, or suspended the decision on issuing the authorization for a maximum period of 20 days (Art. 240 of the cc). In the latter situation, upon the lapse of the suspension, the petitioner could request the authorization again, and this time its granting was obligatory.30 Most likely because of the very weak character of this suspending veto that the tribunal had against divorce petitions, I have not found any evidence of suspending the authorization in the material studied. This may also suggest that judges were not overly determined to impede divorces.
At this point, it must be reiterated that in principle, a wife required her husband’s consent to file a lawsuit. This however, did not apply to divorce cases, in which both parties enjoyed equal status: both husband and wife had to submit the divorce petition prior to other spouse being cited and, following the conciliation proceedings, they both had to obtain the tribunal’s permission to cite the other spouse.31
Having obtained the permission discussed above, the petitioner was allowed to submit the citation in the ordinary form (Art. 241 of the cc read in conjunction with Art. 61 of the cpc). Pursuant to Code de procédure, this document was to include the following elements:
- 1)date;
- 2)particulars of the petitioner;
- 3)establishment of court representative;
- 4)indication of the burgrave (woźny) who was to serve the petition;
- 5)particulars of the defendant;
- 6)subject of the case (same as in the petition);
- 7)indication of the court;
- 8)date of the hearing.
Since the demand of the citation (subject of the case) had to be the same as the demand of the divorce petition (Art. 241 of the cc in fine), the citation could not introduce any new substantive content. Unfortunately, my query did not
All citations shall be served personally to the party or at the party’s domicile: but if the burgrave is unable to find at the domicile neither the party nor any of their family members or servants, he shall immediately give a copy to one of the neighbours, who shall sign the original.32
If the location of the defendant was unknown, the original of the citation was affixed to the door of the courtroom,33 and a copy was served to the prosecutor (Art. 69 sec. 8 of the cpc).34 If the defendant lived abroad, both the original and the copy were served to the prosecutor.35 The prosecutor, in turn, was responsible for making sure that the copy was delivered to the defendant (Art. 69 sec. 9 of the cpc). It must be stressed that the defendant’s absence at his or her place of residence did not impede effective (meaning: causing legal consequences) service of citation (Art. 68 of the cpc). Thus, a defendant
In another case, the allegation of frequenting inns, drunkenness and insults against the petitioner’s honour (unfortunately not quoted in the available material) also turned out not to be enough for the tribunal to hear the case.42 Another potential basis for dismissal of the petition was the reconciliation of the spouses43 (Art. 272 of the
In the great majority of cases, the petitions were admitted for hearing. The Civil Tribunal of First Instance in Kalisz recognized nearly 300 divorce cases. The decision to dismiss was only made eight times (ca. 2%). In turn, a researcher of the Civil Tribunal of First Instance in Kraków records (from the years 1816–1833) does not cite a single such case.47 This shows that petitions for divorce were usually well drafted in terms of formal requirements, probably thanks to the aid of professional lawyers. It can also be assumed that defective petitions were eliminated at the stage of conciliation proceedings. If the facts of the case did not raise doubts, the court could render a judgement immediately upon admission of the petition (Art. 247 of the cc).48 This, however, happened rarely.49 Most frequently, once the petition for divorce was admitted, the court ordered witnesses to be heard.
3.1.3
Fairly often, due to the absence of the defendant and his or her representative, the proceedings were held in absentia (Arts. 149–150 of the cpc). It must be emphasized that failure to appear of the defendant party could in no case be treated as acknowledgement of allegations, which still had to be proven pursuant to general rules.50 Trials were conducted in absentia most often when the defendant party failed to appear in court despite effective service of the citation.51 Proceedings could also be held in absentia when the defendant’s place of residence was unknown.52 In one case, the tribunal resolved a case in absentia of the petitioner.53
The party that the court deemed absent without justified cause could appeal the decision to hold default proceedings by challenging it with an objection (opposition), considered by the same court that had issued the original judgement.54 However, objections were not lodged often. Usually the defendant against whom the case had been resolved in absentia remained passive until the end of the proceedings, of which he or she often did not know. Grounds for the objections usually cited such circumstances as sickness impeding the appearance55 or formal defects related to the service of citation.56
3.1.4 Provisional Measures
Articles 267–271 of the cc addressed the regulation of the following issues for the duration of the divorce trial:
- 1)custody over children;
- 2)place of residence of the wife;
- 3)alimentary pension;
- 4)securing movables belonging to common property.
Another problem that had to be solved for the duration of the trial was the wife’s place of residence. The provision of Art. 214 of the cc should be reiterated here: The wife is obliged to live with her husband, and to follow him to every place where he may judge it convenient to reside. Thus, a married woman was not free to leave the husband’s house at her will, even in a situation of conflict. This rule did not hold during the divorce trial, however. It may be surmised that frequently already at the point of submitting the petition for divorce the spouses were living separately. In fact, one of the commonplace reasons for initiating divorce proceedings was the abandonment of one spouse by the other. This is suggested by the addresses of the parties included at the beginning of minutes, which are often different. Probably the wives were the ones to move out more often; they went to stay with their family or found shelter at a monastery.58 This issue was often omitted altogether, although sometimes in the interlocutory decision (jugement interlocutoire)59 the tribunal approved the place of residence chosen by the divorcing wife.60 There was also one ruling according
Another issue that inevitably came up as a consequence of spouses’ separation was the wife’s maintenance throughout the duration of the trial. The statutory property regime under the Napoleonic Code was community of goods (Art. 1400 of the cc),62 and the management of all assets rested with the husband (Art. 1421 of the cc). The mere submission of a divorce petition did not dissolve this community, of course. Nevertheless, it should be kept in mind that a considerable number of divorces took place among the landed gentry, and this social class tended to make prenuptial agreements and adopted various models of separation of property. Therefore, sometimes there was simply no reason to request alimentary pension for the duration of the trial, as the wife managed her own assets (Art. 1536 of the cc).63 Such a request was also futile when the defendant had no property, or when his location was unknown. In this last situation, however, the tribunal could authorize the use of his funds.64 Sometimes the issue of alimentary pension was settled out of court.65
Although Art. 268 of the cc mentioned only alimentary pension (pension alimentaire), court records contain authorizations allowing wives to charge interest on their dowry amounts.66 Alimentary pension was usually granted with retroactive effect (from the date of submission of the petition), and its amount varied.67
3.1.5 Proceedings after Allowing the Case to Be Heard
3.1.5.1 General Remarks on Evidentiary Proceedings
Provisions concerning evidence that could be used in a divorce trial had been placed in three different places by the French legislator, which cannot be considered positively in light of the criteria of good legislation. First and foremost, there was Section vi of Title iii of Book iii of the Napoleonic Code (Arts.1315–1369),69 which provided general provisions on evidence.70
- 1)documents (Arts. 1317–1340),
- 2)testimonial proof (Arts. 1341–1348),
- 3)presumptions, including authority of a matter decided (Arts. 1349–1353),
- 4)acknowledgement by a party (Arts. 1354–1356),
- 5)oath (Arts. 1357–1369).
Provisions concerning evidence can also be found in Code de procédure civile (Arts. 193–336) and in Title vi of Book i of the Napoleonic Code (Of Divorce). Code de procédure made the rules of examining evidence stipulated in the Napoleonic Code more precise, and moreover it introduced the inspection of real property (Arts. 295–302 of the cpc) and expert opinion (Arts. 302–323 of the cpc).
The very course of evidentiary proceedings largely depended on the attitude of the defendant party, mainly on whether the defendant appeared or not in court. It must be emphasized that failure to appear (even if not justified) was in no way treated as acknowledgement of allegations raised in the petition for divorce (regular evidentiary proceedings were required). A defendant who did appear could choose various strategies. Above all, he or she could either acknowledge71 or deny the allegations.72 Moreover, in the event of denying the allegations, he or she could take a passive or active stance73 (especially appoint their own witnesses).74
The evaluation of evidence was at the sole discretion of the court. Although the principle of free evaluation of evidence had not been expressed explicitly in the Code de procédure, it was clear that it was applied in the French legal system,75 especially since it could be deduced from Art. 1353 of the cc.76
It has been proven beyond a shadow of a doubt by witness Kopczyński, and the defendant does not deny it, that she used to get drunk and sleep in gutters, wander around in the company of men, and such conduct is so closely connected with adultery that pure reason commands us to assume that she has been unfaithful to her husband, and although witness testimony does not address the very act of adultery, it at least gives proof to Sawiczewska’s inclination to it. Considering that the Napoleonic Code stipulates that presumptions apply to these testimonies, that is conclusions that the law or an official draws from a fact known unto a
fact unknown, and pursuant to Art. 1353 of the Napoleonic Code, presumptions are left to the sagacity and prudence of the magistrate in those cases in which the law admits testimonial proof, it must be concluded that the testimonies given by witnesses of Józef Sawiczewski are sufficient to prove the adultery of his wife Katarzyna Sawiczewska de domo Kompertewicz .78
having entered her apartment, she found Mrs. Bełkowska [defendant] in the act with Mr. Lewandowski […] The testimony of Mrs. Lisicka concerning a fact that has not been admitted by the appellant, and raised by one witness only, cannot be sufficient to find the appellant guilty of adultery and to sentence her to a punishment, as this testimony does not prove the offence of adultery. This is because all the laws concerning this matter stipulate that adultery must be proven by an eyewitness, and all legislation, including the Austrian Code [Franciscana of 1803] requires two witnesses even for proving the least serious offences subject to the light punishment of jail. Therefore, how can the court find the appellant guilty of the offence of adultery, which is punishable by a much harsher sentence, given only the uncertain and imprecise testimony of a single witness?79
Thus, the author of these words made a direct reference to the legal theory of evaluation of evidence, provided for, among others, in the Austrian penal code of 1803 (Franciscana),80 but absent from Code de procédure. Interestingly, the appellate court took the side of the defendant and changed the judgement of the tribunal, ruling that the divorce had taken place solely on the basis of Art. 231 of the cc (and not on the basis of Art. 229 and 231 of the cc), and thus reversed the punishment for adultery. The court only supported this position by stating that the act of adultery, allegedly committed by the appellant, has not been legally proven.81 It is difficult to concur with this
Similarly, the Kraków tribunal found in its judgement of 14 May 1817 that the petitioner had not proven her allegations, because it results from the testimonies given by witnesses in respect of the circumstances of insults directed by the defendant against the petitioner, that only one witness, Mikołaj Tyrchowski, had heard these words, while other witnesses did not, and only heard other people claim that that the defendant spewed such words at her.83 The cited position of the court also suggests that the Kraków judges were attached to the division into eyewitnesses and hearsay witnesses, known in the modern legal systems. Nevertheless, they missed the fact that this division did not have any legal significance in the Napoleonic system. Although such a specific approach to evidentiary proceedings was characteristic of Kraków courts, a certain attachment to the legal theory of proof, although not as strong, was sometimes exhibited by other tribunals too.84
3.1.5.2 Documents
For the obvious reasons, documents are not the most elementary type of evidence in divorce trials, as acts of domestic violence or infidelity do not often leave a paper trail. Nevertheless, in the material studied I have encountered
Another category of records were medical certificates. They served two major purposes: either to justify absence at court,87 or to estimate the injuries sustained by a wife88 or by a husband.89 I have also encountered one case in which the defendant cited a medical certificate in order to prove that his son from the first marriage, of whom he had custody, was handicapped and required special care, which put the defendant in a difficult financial situation and thus he should not be ordered to pay alimentary pension.90 Most medical certificates were issued in written form, although sometimes physicians were also heard as witnesses.91
The third category of documents presented at court in divorce trials were certificates issued by municipal authorities. I have found, among others, a certificate from a magistracy used as proof that the defendant pays neither for mine [petitioner’s] nor the children’s maintenance, and I have to work for their livelihood.92 In another case, a certificate from a wójt was mentioned, in which he confirmed that the location of the defendant was unknown93; in yet another,
Moreover, a large part of the documents used in divorce trials were letters of the parties, usually of the defendant.95 They were presented as proof of insults hurled against the wife or the husband96(for example when they made an allegation of infidelity).97 In one case, the defendant (wife) produced her own letters in a bid to prove that she desired a harmonious relationship with her husband.98
My dear husband! Since you call upon me to confess, shamed and hoping that God may help me, I admit that I have wronged you, [first] in 1823, when you fell ill and delegated the care of your business to Wincenty Tarnawski, whom at the time you had for a friend, speaking highly of him, which made me respect him greatly. He confessed his love for me a number of times and claimed that you conduct your business poorly and that it may bring a sad future unto me, and so I succumbed to this weakness and fell prey to his lust, and I was at times unfaithful to you. In 1824 by chance you heard us in the act of lovemaking next to your bed, you grabbed him before my eyes and instead of taking your revenge, you reprimanded him wisely and let him go, ordering him to leave our house and never to come back with such intentions on pain of death. I recognize that you gave me a fatherly admonition and warned me of the consequences I am now facing, and so I had the honest intention of giving
you back my heart and of never committing a similar error. Tarnawski, knowing that you sleep soundly in the evenings, visited me sometimes at the apartment to which we moved, pretending that he took pity on me, and starting from there he led me to such insanity that I, valuing his kindness more than yours, could not resist him, and my love for you dried up. When I see today how he led me astray, I beg for your mercy and ask that you refrain from asking witnesses to confirm my mistakes, as I am tormented enough.99
You accuse me, my lady, of being ill-mannered with you, of calling you a rogue, a rascal and a wretch, you say that I wanted to beat you, and all that is true, as a woman as evil and stupid as you, my lady, does not deserve better treatment, and if I continue to suffer your impertinence, I confess this will end not with words, but with a cane. I request that you stop bothering me, both with your letters and in person, as I cannot stand you, my lady, and wish not to live with you. I am returning your property, and I ask that you return my peace; being rich you may yet find a suitable catch. Farewell, my lady, and consider this letter to be my last response.100
3.1.5.3 Witness Statements
The general provisions of the Napoleonic Code regarding witnesses (Arts. 1341–1348) primarily regulated prohibitions of evidence (restrictions on the hearing of witnesses against or beyond the contents of documents, even if the document required by law was not in fact drawn up).101 Such prohibitions of evidence were obviously not applicable in divorce proceedings (acts of marital violence or infidelity were not recorded). The provisions of the Code de procédure and Title vi of Book One of the Napoleonic Code were however
The witnesses appointed by the defendant in his defence not only confirm the acts cited by the petitioner as causes for divorce, but also deny having any knowledge of the arguments used by the defendant to support his position.102
Whether or not a testimonial proof would be allowed was decided by the court’s interlocutory decision (Art. 252 of the cc). Witness testimonies were heard behind closed doors, in the presence of a royal prosecutor, the parties and their attorneys or friends (up to three for each party–Article 253 of the cc). It should be noted that this regulation was an exception to the general rule, according to which witnesses were heard by a delegated judge (Article 255, par.2 of the cpc).
The examination focused specifically on the issues disputed by the parties (Arts. 252 and 253 of the cpc read in conjunction with Art. 236 of the cc). As a commentator on the Code wrote, the circumstances subject to evidentiary proceedings were to be expressed in point form–one by one, briefly, with no reasoning, no legal issues and principles.103
- 1.Is it true that the defendant was calling his wife a whore and one day as he came back home late at night, he was pinching her and spitting in her face so badly that she had to call for help?
- 2.Did the defendant try to drive the plaintiff out of the house when she was pregnant and what is more, did he hire Antoni Majewski and Paweł Farnowicz, to have it done?
- 3.
As the plaintiff could no longer stay in the defendant’s house because of being called names, is it true that the defendant took her shoes away and was beating her so severely (in the presence of his brother), that as a result she was recovering for a long time? - 4.Was the plaintiff beaten regularly? Is it true that the defendant beat her with his broadsword?104
I do swear that, summoned as a witness in the divorce case of Józef Ciszewski against Joanna Ciszewska, I will answer all questions truthfully and to the best of my knowledge114.
Prior to the commencement of testimonies, the opposing party could raise objections (reproches – Art. 270 of cpc) against a witness appointed by the other party. Objections could relate to the fact that the witness was kin of the party (up to the sixth degree), an heir or a person who had received a gift from the party. Other objections could be submitted against a witness who ate and drank with the party and at the party’s cost after the delivery of the judgement ordering the enquiry; who attested in respect of acts in connection with the trial; who was a servant or a member of the party’s household; who had been indicted; who had been condemned to a painful or infamous punishment, or even a corrective punishment for theft (Art. 283 of the cpc).115
Title vi of Book i of the Napoleonic Code regulated this issue of interest to us much more liberally. In divorce cases, it allowed for the hearing of parties’ servants and all kin with the exception of children and descendants116 (Art. 251 of the cc).117 In practice, objections against witnesses were not raised
First witness Fryderyk Grun declared as to the fact no. 1 indicated in the interlocutory decision: If I remember well, it was probably about eight years ago when I heard Saling calling his wife whore (kurwa), but I don’t know if he called her a wretch, pinched her or spit in her eyes. As to fact no. 2, he declared having no knowledge of it. As to fact no. 3, he often heard the Saling spouses fighting, and that once the Saling wife fell ill because of this, but he claims to know nothing about taking off her shoes or beating her in the presence of his brother. As to fact no. 4, he declared having no knowledge of it.
3.1.5.4 Presumptions
- 1st.Acts which the law declares null, as presumed to have been made in fraud of its regulations, regarding their quality only;
- 2d.Cases in which the law declares property or liberation to result from certain determinate circumstances;
- 3d.The authority which the law attributes to a matter decided;
- 4th.The force which the law attaches to the confession of the party or to his oath.125
In divorce cases, only one of these categories was significant, that is the authority of a matter decided (res iudicata), which was understood broadly. This term was also used in reference to the fact that civil courts were bound by decisions of final judgements delivered in criminal cases.126
In the material covered by my query, I encountered references to judgements delivered in criminal cases usually in files of proceedings conducted
3.1.5.5 Judicial Acknowledgement
Pursuant to the Napoleonic Code, judicial acknowledgment is a declaration made in court by the party or his attorney specially appointed. It furnishes complete proof against the party who made it (Art. 1356 of the cc).129 This is to be understood as a clear acknowledgement by a party that a statement made by the other party is true.130 This acknowledgement was binding on the court, which was a manifestation of the dispositive nature of the trial.
Since all the formalities and provisions of the law have been observed in all aspects, and the facts alleged by the petitioning wife sub numero primo, secundo, tertio and quarto belong to the category of determined causes, and since the defendant has not raised any reasons for why they should not be accepted, I move for the case to be heard. As for the question of whether this petition may result in divorce by virtue of the defendant’s acknowledgement, I respectfully direct the tribunal’s attention to the fact
that in cases this personal and this significant for the social interests, subject to special care and custody of the law, and requiring such conscientiousness as divorce cases, the highest prudence should be exercised, and the acknowledgements of parties, who frequently have an interest in obtaining divorce, should not be deemed sufficient.131
Yet these suspicions did not lead to complete rejection of acknowledgement as evidence. For example, the Kalisz tribunal, in grounds for a divorce judgement, cited acknowledgement a number of times in combination with other types of evidence (witnesses132 or documents).133 Also the Kraków tribunal was cautious when it came to the discussed evidentiary measure.134
The Tribunal, having found the reasons for seeking divorce as explained in the report to be sufficient, allows the case to be tried, and, in consideration of the fact that the defendant is unable to deny the insults, ill-usage and injuries alleged by the petition, convinced that such may have taken place, in order to avoid the vain expenses that would be associated with the hearing of witnesses proposed by the petitioner, renounces this evidence, and, in its place, the defendant admits to having committed the alleged acts and, since these are sufficient for the dissolution of marriage based on the provisions of articles two hundred and thirty and two
hundred and thirty-first of the Civil Code; Therefore, by virtue of the law cited, the tribunal considers the marriage […] dissolved.136
3.1.5.6 Oaths
The oath cannot be tendered in return when the fact which is the object thereof does not lie between the two parties, but is purely personal to him to whom the oath was originally tendered.139
Thus, there was no possibility of proving allegations raised in petitions for divorce (adultery, physical and mental violence) with the use of this type of oath, which was noted by the Kalisz tribunal when it dismissed a motion for allowing this type of evidence: As for the oath tendered to the defendant as proof that he maintained a mistress in the marital house, it is dismissed, as the law does not admit this type of evidence in re turpi [in cases concerning morality].140 Thus, this type of oath was used rarely in divorce cases, and rather not in reference to the fundamental matter in dispute (that is the request for dissolution
Oaths officially administered (serments déférés d’office) were also given infrequently, but owing to their different construction, they merit a separate commentary. First of all, it was a type of evidence admitted ex officio (and thus it was not of purely dispositive character). Secondly, it could not be the only evidence used to prove a given circumstance. Thirdly, the restriction resulting from the quoted Art. 1362 of the cc142 did not apply to this oath.
I swear that my wife Filipina née Wessin, married name Adler, having left my domicile in 1805, has not been heard of since and I do not know where she may be at this time.143
I swear that following my civil wedding with my husband Augustyn van der Luhe, he later refused to be wed in church, even though I demanded it from him.144
I swear that nobleman Krzysztof Wolf, my husband from whom I seek divorce, mistreated me, that he hit me in the head with tongs, injuring me, and that he called me insulting names and beat me.145
3.1.5.7 Other Evidence
In the material covered by my query, I have also encountered several requests to admit other types of evidence. Expert opinions were proposed in two cases. In the first one, the petitioning husband wanted to prove with the aid of expert physicians that his wife had concealed an illness from him.146 Another husband requested for experts to establish how much exactly he
Let us close this part by mentioning that one of the petitioning wives brought her cap to court, one that had been torn by her aggressive husband.148 Yet the Napoleonic Code and Code de procédure provided for a closed catalogue of evidence, and physical evidence was not included in it. Thus, it comes as no surprise that the court did not cite the aforementioned cap in establishing the facts of the case.
3.1.6 Proceedings in Divorce Cases Initiated Due to a Spouse’s Condemnation for a Felony
Pursuant to Art. 261 of the cc: When the divorce shall be demanded by reason that one of the married persons is condemned to an infamous punishment, the only formalities to be observed shall consist of producing before the civil court a copy in correct form of the judgement of condemnation, with a certificate from the criminal court, importing that the said judgement is no longer liable to be reviewed in any legal way.149 Thus, in cases like this, neither conciliation proceedings nor inquisition were conducted, and the tribunal limited itself to verifying the authenticity of the criminal judgement, whether it was final and whether the spouse had been sentenced to an infamous punishment. If that was the case, the tribunal was obliged to pronounce the divorce.
3.2
Divorce at mutual consent of the parties was only possible when both spouses were adults,150 that is if the husband was at least 25 years old, and the wife at least 21 (but she had to be younger than 45–Arts. 275 and 277 of the cc). In order to obtain a divorce by mutual consent, the spouses also needed the consent of their parents or other living ancestors (Art. 278 of the cc).151 Furthermore, divorce by mutual consent was possible no sooner than two years after the marriage and no later than 20 years later. This aimed, on one hand, to prevent rash dissolution of marriages with short duration, and, on the other hand, divorces of couples whose compatibility had been proven by a long life together (Arts. 276–277 of the cc).152 Another deterrent to this kind of divorce was the obligation of both parents to transfer half of their property to the children born out of the dissolved marriage (Art. 305 of the cc).153
Before the commencement of the divorce proceedings proper, the spouses were required to agree on the property, custody, place of residence of the wife during the trial and on her maintenance (Arts. 279–280 of the cc).154
The court proceedings were exceptionally formal and required a great deal of determination from both spouses. The spouses were required to appear four times at three-month intervals before the president of the civil tribunal of first instance in the presence of two notaries, and to declare their willingness to dissolve the marriage. Each time they had to submit new authorizations for divorce from their parents or grandparents.155 Another manifestation of the far-reaching formalism was the fact that the spouses and notaries had to appear at the president’s office during strictly fixed two-week periods in order to renew their declaration of willingness to dissolve the marriage. Missing this
Within two weeks of the anniversary of the first declaration, the spouses appeared in the assistance of four friends (two from each side) before the president of the tribunal, with the minutes of all four meetings at which they made statements of intent to terminate the marriage. The minutes of this meeting were made not by a notary, but by the clerk of the tribunal. All the documents drafted for the purposes of this procedure were attached to these minutes (Arts. 286–288 of the cc).
Next, all the documentation was submitted to the prosecutor, who verified whether all the formalities had been observed (Art. 289 of the cc). The role of the tribunal also boiled down to checking whether all the aforementioned formal requirements had been satisfied. Its ruling, then, was of purely declarative nature (Art. 290 of the cc). In order to challenge its ruling, both spouses had to submit their appeals separately (Arts. 291–292 of the cc). Such an accumulation of restrictions and formalities made this procedure quite troublesome, and accessible only to the wealthiest couples.157
3.3 Steps Immediately Preceding the Delivery of Judgement
After the completion of the evidence proceedings, the tribunal set up a public hearing that immediately preceded the judgement. Prior to this hearing, intended to be the last one, the case files were once again submitted to the prosecutor, and the reporting judge was appointed again (Art. 256 of the cc). This judge drafted a written report158 and presented it at the hearing. Next, the parties and finally the prosecutor could speak up (Art. 257 of the cc). The parties and the prosecutor presented their positions (conclusions) in writing.159
A literal interpretation of Art. 141 of the cpc, which will be discussed below, would suggest a separation of factual and legal issues. In practice, however, this was not the case.161 The sources say nothing about the way that the court proceeded during deliberations, since naturally minutes were not made.162 Information about the course of deliberations appeared in the court books only when, due to the lack of a majority of votes, it was not possible to issue a decision and it turned out to be necessary– in accordance with Art. 118 of the cpc–to add one more person to the adjudicating panel. Such situations were very rare, however.163
3.4 Judgements
The form of judgements issued by tribunals of first instance was regulated primarily in Arts. 138, 141, 142 and 146 of the cpc. It is worth emphasizing that the
The contents of the extract were stipulated in detail in Art. 141 of the cpc, pursuant to which the judgement had to include164:
- 1)surnames of the judges;
- 2)surname of the prosecutor (if he was involved, which was the rule in divorce cases);
- 3)surnames of the attorneys;
- 4)first and last names of the parties, their professions165 and places of residence;
- 5)demands of the parties;
- 6)questions of fact (points de fait);
- 7)questions of law (points de droit);
- 8)grounds (motywa);
- 9)ruling (dispositif des jugement).
Thus, the ruling was to be included at the very end of the judgement, preceded by grounds (motywa),166 which in turn were preceded by the facts and legal issues pertinent to the case.167
As already mentioned, these issues were often written down in the form of questions, immediately before the delivery of the judgement. The contents of the verdict usually addressed them only in brief,168 unless we classify as such lengthy quotations from the witnesses’ testimonies, sometimes cited in extenso.169 Most often, however, they were completely devoid of any reasoning of the court (in particular, the judgements did not explain why the court
It is worth mentioning that the Code de procédure, unlike the French code of penal procedure of 1808171 did not contain an explicit disposition to indicate the legal bases of a ruling. Nevertheless, Polish courts usually specified the numbers of articles based on which they adjudicated (although I have come across some clerical mistakes in this respect).172
Copies also included the ruler’s intitulation and a conclusion in his name (Art. 146 of the cpc). In the Duchy of Warsaw, the intitulation went as follows: Frederick Augustus, by the grace of God, King of Saxony, Grand Duke of Warsaw, Let it be known to all and every one whom it may concern. …173 Following the commencement of the Duchy’s occupation, this clause was replaced with: In the name of the Supreme Provisional Council of the Duchy of Warsaw. …174 In the Kingdom of Poland: We, Alexander the First, Emperor and Autocrat of all the Russias, King of Poland. …175 And in the Free City of Kraków: In the name of the Government of the Free, Independent and Strictly Neutral City of Kraków and its District. …176 Once the Republic of Kraków had been incorporated into the Habsburg monarchy, the judgements were issued in the name of Austrian emperors.177 Following the incorporation of the Duchy’s western departments into Prussia, which occurred by virtue of the Congress of Vienna decision, the discussed inscription changed in these areas to:
We advise and order all komornicy from whom it may be requested to enforce this act (or judgement); all the Royal Prosecutors to ensure this; all Commanders and Officials of the armed forces to come to their aid if called upon to do so.179
The extract of the judgement (rédaction) was drafted on the basis of documents submitted in the case (Art. 142 cpc). These documents, however, were not to be rewritten in extenso, but rather summarized.180
It can be concluded from the preserved copies of judgements in divorce cases that the formalities required by law were observed. However, it is doubtful whether the sequence of actions expected by the legislator was respected. Although the text of Code de procédure itself did not list the elements of the minute in as much detail as those of the rédaction, it can be assumed that the original should contain the same elements as the extract, except for the intitulation and the enforcement clause (Article 146 of the cpc).181 Thus, grounds should exist already at the moment of publication182 (even if only their shortened version). Meanwhile, in Poland motywa were drafted only when one of the parties requested them. Moreover, it was only then that the tribunal asked the parties’ attorneys to submit their positions in writing.183 There was also a
Judgements were signed only by the presiding judge and by the clerk. The remaining judges did not sign, but their presence was recorded, as was the appearance of the prosecutor.
3.5 Types of Definitive Judgements
A divorce trial generally ended with the dissolution of the marriage or with a dismissal of the divorce petition. However, other decisions ending the trial (at least temporarily) were also possible. First of all, the court could refuse to take evidence and reject the petition. This was the case if it was found that the petition was inadmissible because the spouses had reconciled after one of them had wronged the other one, or that the petition raised allegations that were not provided for by the Code as grounds for divorce. Rejections of petitions have already been discussed in Section 3.1.2, concerning the decision to allow or deny hearing the case. Second, the petitioner could withdraw the petition, which was usually the case when the spouses arrived at an agreement. Thirdly, if the petitioner did not undertake the prescribed procedural steps within the specified time, an expiry was declared. Finally, the court could render a specific ruling, by virtue of which the divorce was not allowed immediately, and the spouses were prescribed a probationary period (Art. 259 of the cc).
Moreover, in the materials covered by the query, I found several judgements issued by Polish courts on the basis of Landrecht (these were cases started before the introduction of the Napoleonic Code)185 and two judgements
For the Kalisz tribunal I have prepared a full statistical summary of all divorce cases it recognized. I have introduced a certain simplification, however. This is because not rarely both spouses filed separate divorce petitions against each other. If they did so at a similar time, then both petitions were recognized in one proceeding. Sometimes, one of the spouses first filed a petition, but the case was not finalized because the petitioner did not pursue it, and then a new petition was filed by the other spouse (previously sued). In the following list, the situations described are counted as one case each time (both parties are treated as petitioners at the same time and counted as “0.5”). There are several reasons for introducing this simplification. First, the double counting of cases between the same persons would overstate the population of divorcees. Second, it is difficult to determine the full number of cases in which two petitions were recognized at once, because information about the second petition does not appear in the headlines of the judgements (the term counter-petitioner is not used), and in sentencjonarze (in which the court’s decisions were noted in the first place) they could have been omitted completely, because in a standard judgement concerning a case in which there were two petitions and only one was taken into account, no decision about the other was included (it was not rejected or dismissed).187
Divorce cases pending before the Kalisz tribunal.
Number of decisions of the Kalisz tribunal.
Diagram 2 presents decisions of the Kalisz tribunal made in cases in which the final outcome depended on the ruling of the court, and not on the attitude of the petitioner who did not pursue the petition or who withdrew it. As we see, in nearly 90.0% of such cases the tribunal pronounced divorce. This resulted, among others, from the liberal approach of judges, who were flexible in interpreting the causes for divorce stipulated in the Napoleonic Code (see: next chapter).
3.5.1
The Napoleonic Code specified five causes for divorce. One of them was the mutual consent of both spouses. The others were initiated unilaterally. The first premise justifying a unilateral demand for divorce was adultery committed by the other spouse, with the wife only being able to invoke marital infidelity committed in their common home, but this limitation did not apply to the husband (Art. 229 and 230 of the cc). Other causes were outrageous conduct, ill-usage or grievous injuries of one spouse against the other (Art. 231 of the cc). The third was sentencing of the other spouse to an infamous punishment (Art. 232 of the cc). It was also possible to pronounce divorce following a period of separation (Art. 310 of the cc).
There was not a single universally applied wording for the dissolution of marriage. Sometimes, the tribunal simply announced that it allows divorce188 or gives place to divorce.189 Often times, it dissolved the marital contract,190
Judgements delivered on the basis of individual grounds for divorce will be discussed in the next chapter. At this point, it should only be mentioned that some divorces were pronounced on the basis of two articles simultaneously. Due to the specificity of the divorce grounds and the procedural distinctions associated with each of them, it was possible to apply only two grounds together, i.e., adultery combined with outrageous conduct, ill-usage and grievous injuries (Articles 229, 230 and 231 of the cc).196 In some cases, the allegations concerned both adultery and grounds under Art. 231 of the cc, but the court in its judgement pronounced divorce only on the basis of the latter, without any reference to adultery.197 Other times the opposite was true: allegations
3.5.2 Dismissal of Petition
Dismissals of divorce petitions did not occur often. The Kalisz tribunal dismissed only twelve of them. Thus, it happened over ten times less frequently than pronouncement of divorce (such judgements based on the Napoleonic Code were delivered 164 times in Kalisz). The proportions in Kraków were similar.199 The most common reason for dismissal of a petition for divorce was finding that the allegations had not been proven.200 In one case, the dismissal was justified by the fact that during the trial, the petitioner dropped her main claim and instead demanded only separation.201 Her request was dismissed, because she based it on Art. 232 of the cc, raising that her husband had been sentenced by the Court of Criminal Justice to an infamous punishment, that is 14 days of jail, for insulting her with invectives and throwing a shoe at her. The tribunal, however, found that in the spirit of criminal laws, a jail sentence of fourteen days cannot be deemed an infamous punishment.202
The Kraków tribunal, in turn, dismissed one of the petitions, considering that the proven outrageous conduct, ill-usage, and grievous injuries were not serious enough for a divorce to be pronounced.203 The judge reporter of the appellate court found this resolution to be internally contradictory, arguing that if the court had allowed the petition, then already at the stage of the interlocutory decision it admitted that the allegations raised in it could serve as grounds for divorce. If they were proven, then it should not retract its earlier
3.5.3 Judgements Prescribing a Probationary Period
Besides pronouncing divorce and dismissing petitions for divorce, the tribunal, following the evidentiary proceedings, could propose a comprise solution, that is refuse to grant divorce right away206 and order the parties to wait for a period of one year (temps d’épreuve).207
This postponement was of course intended to give the parties time for reconsideration and possibly allow them to reconcile over the period of this temporary separation.208 It must be emphasized that it was only possible in the case of petitions based on outrageous conduct, ill-usage and grievous injuries, but never when adultery was involved (if it was, and the woman was the guilty party, the civil tribunal imposed a public punishment on her). Another important aspect of this measure is that the time after which the parties could
My query has demonstrated that this measure was moderately effective. Out of 215 rulings of the Kraków tribunal, in which the sole grounds resulted from Art. 231 of the cc, 11 (ca. 5%) were delivered following a probationary period, which means that in these cases this institution did not lead to reconciliation of the spouses. At the same time, the fact that only divorce judgements were included in the full query makes it impossible to give a clear answer on how frequently cases were not continued following the application of Art. 259 of the cc. Bronisław Fidelus, whose systematic query covered relevant court files all the way to 1833, lists four such cases.210 On the other hand, my analogical full query of the Kalisz tribunal court files revealed only one such case, and in 1824,211 that is relatively shortly before Book i of the Napoleonic Code was repealed in the Kingdom of Poland.
Moreover, it merits a mention that the Kraków tribunal employed a practice that was in clear violation of the Napoleonic Code, namely: prescribing probationary periods of less than one year.212
3.6 Cases Ended with No Judgement
3.6.1 Expiry Caused by the Petitioner’s Failure to Pursue the Case (Cases with Unknown Outcome)
As shown in diagram 1., the Kalisz tribunal did not deliver a judgement in nearly 1/3 of all the divorce cases that pended before it. No information could be found on the formal withdrawal from proceedings, an institution I address in the next subchapter. Of course, it is possible that some files are missing or that I missed some judgement(s). Nevertheless, most likely what happened to the majority of these proceedings is that they ended by expiry (péremption).
Art. 397 of the cpc stipulated: Any proceedings, even if there has been no appointed Counsel, will be extinguished by discontinuance of proceedings for three years.213 Yet the expiry did not occur by operation of law itself (Art. 399
Unfortunately, due to the specificity of the source material, I have been unable to find a single such notice. There is no point in searching for them among annexes to civil status records, since they finished proceedings that ended with a judgement on the merits of the case, and not by expiry. I have not encountered them in court files, either, which cannot come as a surprise, as the counsels exchanged the notices between each other, with no involvement of the court. There of course may have been a host of reasons why a petitioner lost interest in pursuing the divorce. The most likely ones include reconciliation, the death of one of the spouses or moving to another court district.
3.6.2 Discontinuance of Action
Finally, a petitioner could withdraw the proceedings (Art. 402 et seq. of the cpc),215 which was usually done as a consequence of the spouses’ reconciliation. Nevertheless, such situations were rare. I have found only three such cases (ca. 1% of the cases) in the preserved files of the Kalisz tribunal. In one case, the petitioning husband undertook to withdraw his petition following an arrangement he made with his wife on obtaining divorce at mutual consent.216
3.7 Appeal and Cassation Proceedings
3.7.1 Appeal Proceedings
The appeal proceedings in divorce cases were regulated primarily by the Code de procédure. There were only a few provisions in the Napoleonic Code modifying the general rules of procedure (let us recall that the first instance proceedings were regulated autonomously in the Civil Code and that the Code of Civil Procedure was applied to a relatively small extent). In the case of a divorce for a determined cause, the modifications were limited to ordering that they be treated as urgent by the appellate court, and to changing the rules
There were two courts in the Polish territories that recognized such appeals: in Warsaw in 1808–1825 (for the entire Duchy of Warsaw, and later the Kingdom of Poland) and in Kraków in 1816–1852 for the Republic of Kraków. The physical files of the Warsaw appellate court were burned by the Germans during World War ii. Nevertheless, the preserved civil status records and annexes to them, as well as references in court books (especially those in Kalisz), shed some light on its activities. On the other hand, the books of the Kraków appellate court have survived, but have not been ordered to this day. My query covered sentencjonarze of this court for the years 1816–1832 (volumes wm 301-wm 315). I have found 42 judgements delivered in divorce cases.217 Unfortunately, some volumes could not be made available to me due to their fragile condition.
The number of divorce cases at the Kraków Court of Appeal (as well as at the local tribunal) definitely showed a downward trend. Between 1816 and 1823, 36 such judgements were pronounced, while between 1824 and 1831 only six. Thirteen sentences concerned the divorce itself, while the remaining 29 concerned ancillary issues (allowing witnesses, alimony, child custody). It should be emphasized that disputes between some of the spouses were recognized a number of times by the appellate court (over ten times in the case of spouses Magdalena and Antoni Himanowski). In 16 cases, the appellate court upheld the contested resolution, and in 26 cases it made minor or major changes to it (it should be noted that several decisions of the court of first instance were often appealed at the same time, and then the appellate court decided on them in a single judgement). The majority of the judgements in question were decisions of the tribunal of first instance, the appellate court also recognized oppositions against default judgements rendered by it.
Out of the 13 judgements pronouncing the divorce itself, the tribunal’s ruling was approved in seven cases (although the basis of the decision was partly modified),218 and two were modified to allow the
The French procedure provided for two basic, ordinary means of challenge against judgements. These were the appeal (appel) considered by a hierarchically superior court and the opposition (opposition), considered by the same court that had issued the contested decision.224 Importantly, there was no terminological distinction between means of challenge against rulings on the merits of the case and other types of rulings. In practice, documents challenging the judgements were usually entitled wywody uciążliwości (elucidation of grievances).225
The Kraków Court of Appeal rendered over 20 judgements in ancillary issues throughout the period in question. In ca. 2/3 of the cases, it modified or overturned the challenged decision, and as for the remaining 1/3, it upheld the previous judgement. The most numerous group of ancillary issues concerned disputes around the evidentiary proceedings.226 Other issues that came up concerned property settlements,227 alimony for the duration of the divorce proceedings,228 child custody,229 or the wife’s place of residence throughout the
As already mentioned, the available information about the operations of the Warsaw appellate court is very fragmentary.232 An analysis of the records of divorce decrees drawn up by civil registrars gives some idea of the number of divorce judgements challenged in the Duchy of Warsaw and in the Kingdom of Poland. In the years 1810–1825, 46 divorce decrees were drawn up in Płock: 40 based on judgements of the local tribunal, 6 based on judgements of the appellate court.233 In Kielce, the ratio was 14 to 2 (1820–1824),234 and in the first Warsaw commune 50 to 7.235 The records of the Kalisz tribunal also contain mentions of judgements modified by the appellate court.236 They are not numerous, which suggests that the judgements of this tribunal were not challenged often. I have, however, encountered a few cases in which the parties waived appeal237 (or even withdrew it occasionally).238 Thus, it is likely that not only in the Free City of Kraków, but also in the Duchy of Warsaw and in the Kingdom of Poland, appeals against divorce sentences were rare, which was probably largely due to the fact that a passive attitude was popular among the defendants (failure to appear, not objecting to the petitions).239
3.7.2
There was another means of challenging a divorce judgement issued by an appellate court, which existed in the Duchy of Warsaw, Kingdom of Poland and the Free City of Kraków. Originally, it was of a purely cassation nature, but this changed with the transformation of judiciary at the supreme level. Relatively few judgements of this kind have been preserved, which is why the changes in the organization of this level of the judiciary will not be discussed here, and neither will this means of challenge that could be used against the judgements of the appellate court be. The interested reader will easily find literature on the subject, relatively abundant in comparison to other issues concerning the history of law.240
Just like in the case of appeals, there were a total of two magistrates with the competences of supreme courts: in Warsaw for the Duchy of Warsaw, and then for the Congress Kingdom, and in Kraków for the Free City of Kraków and its district. The state of preservation of their files is similar as in the case of appeal proceedings: the Warsaw files were burned by Germans, and the Kraków documents have survived to our times in a generally good condition.
As for the Warsaw Court of Cassation, replaced by the Court of Supreme Instance, it can only be concluded, based on preserved materials, that it recognized divorce cases, but also infrequently. Suffice it to say that among all the divorce decrees analyzed in the preceding subchapter in terms of frequency of appeals, there was not a single one based on a ruling delivered as a consequence of an extraordinary means of challenge. Even though judgements of the Court of Cassation were published in print in the period of the Duchy of Warsaw, it was done very selectively.242
3.8 Pronouncement of the Divorce Judgement by a Civil Status Registrar
A final and binding court judgement was not enough for spouses to be legally divorced. It was also necessary for a civil status registrar to pronounce the divorce within two months from the date on which the judgement became final and binding (Art. 258 and Arts. 246–266 of the cc).243 Failure to fulfil this obligation had some very far-reaching consequences.244 On the one hand, the couple was still legally married, and on the other, in order to file a new suit, the spouse interested in divorce had to “wait” for the other spouse to commit new offences that would justify another petition.
Of all the obligatory elements, only one requires more of a discussion, as it was the object of different interpretations by both translators and civil status registrars. It was the profession of the persons named in the records.
In practice, providing the information expected by the legislator was problematic. Often times, it was understood in the same meaning as today, that is as the job exercised by a person: merchant or foreman of a given craft. Other times, however, especially in the Duchy of Warsaw, predicates were used, such as pracowity, uczciwy, sławetny, starozakonny, szlachetny, urodzony or wielmożny (see: subchapter 7.5). While the first ones (pracowity, uczciwy) can, in a way, pass as jobs (they refer to labourers), the latter ones (urodzony, wielmożny) simply indicate belonging to the noble estate, and say nothing about what they did for a living. We cannot even assume that holders of these predicates lived off their land, as many of them were not rentiers. What is more, sometimes civil status records provided also information on land offices once held by the parties or by their parents.246 This was in clear violation of Art. 35 of the cc, which stipulated: The officers of the civil registration shall insert nothing in the acts which they shall receive, either by way of note or of any explanation whatsoever, other than what is declared by the parties.247 Quite frequently, one can encounter both the predicate (preceding the surname) and the job exercised by a party (usually after the surname). Both of these issues will be discussed in more detail in Chapter 7.
∵
3.9 A Divorce Deed Drawn up by a Lay Civil Status Registrar (Cyrkuł iv, vol. 14, Entry no. 63)
In the year one thousand eight hundred and twelve, on the seventeenth day of August, at five in the afternoon, before us, a commune civil status registrar of the fourth cyrkuł of the capital city of Warsaw, in the powiat of Warsaw, department of Warsaw, there appeared jw. Marianna née Łączyńska Walewska, wife of starost of Warka, twenty-four years of age, residing in Warsaw at Bielańska Street under the number sixty, letter a, and declared to us, that having initiated the dissolution of her marriage to jw. Anastazy Walewski, starost of Warka, Chevalier of the Orders of the White Eagle, of Saint Stanislaus and of the Red Eagle, residing in Walewice, powiat of Sochaczew, department of Warsaw, with his registered domicile in Warsaw, at Bielańska Street number sixty, letter b, whose marriage was concluded on the nineteenth day of June of the year one
Book of Civil Status Records for Jews from Kazimierz
SOURCE: archiwum narodowe w krakowie (national archives in kraków): akta stanu cywilnego izraelickiego okręgu metrykalnego w krakowie, vol. 12
In practice, if no unexpected circumstances arose, divorce proceedings usually lasted about a year. The specificity of source material often makes it difficult to establish the duration of a trial. In particular, the date of submission of the divorce petition is not always indicated, which makes it impossible to find out how much time elapsed between the submission and the first hearing. Nevertheless, it has been possible in 19 cases in which the second division of the Kalisz tribunal pronounced divorce. In four cases, the judgement was rendered in the same calendar year in which the petition was lodged; in twelve cases in the following calendar year, and 3 remaining cases lasted longer.
Which was recorded in the minutes, for example: TCKal, vol. 2, p. 120, vol. 23, fol. 212. J. B. Treilhard, Exposé des motifs de la loi sur le divorce, par le conseiller d’état Treilhard, [in:] Code civil des Français: suivi de l’exposé des motifs, sur chaque loi, présenté par les orateurs du gouvernement …, Paris 1804, vol. 2, p. 334.
Appointing new witnesses was not possible after that. A judgement dismissing a delayed motion for evidence: Cyrkuł iii, vol. 110, fol. 12v.
It was usually open to the public–an example annotation: TCKal, vol. 299, fol. 81, vol. 336, fol. 368.
Le Droit civil français, par K. S. Zachariae, traduit de l’allemand sur la 5e édition, annoté et rétabli suivant l’ordre du Code Napoléon, eds. G. Massé, Ch. Vergé, Paris 1854, vol. 1, pp. 254–253.
Pursuant to Art. 253 of the cc, this took place behind closed doors, which is mentioned in the minutes–for example: TCKal, vol. 8, fol. 345, vol. 299, fol. 336; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 3, pp. 20–21.
Sometimes the records mentioned the public nature of this hearing–for example: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 27, p. 5.
The state of preservation of records produced in the Duchy of Warsaw and in the Kingdom of Poland in connection with this makes it impossible to research the practice of application of appeal measures. This situation is not changed by the fact that an official journal of cassation rulings, Dziennik Dekretów Sądu Kassacyinego Xięstwa Warszawskiego, existed at the time; Cf. vol. 1, pp. 373–381. This issue in respect of the Free City of Kraków, where in fact some procedure modifications were introduced, is discussed in: B. Fidelus, Rozwód w orzecznictwie …, p. 314 et seq.
Preserved written reports can be found for example in: TCKal, vol. 5, fol. 267; TCKrak, vol. 201, the case of the Stawiński spouses examined on 4 February 1831 [s.l.].
For example: TCKal, vol. 6, fol. 195.
J. A. Rogron, Code de procédure civile expliqué par ses motifs, par des exemples, et par la jurisprudence: avec la solution, sous chaque article, des difficultés, ainsi que des principales questions que présente le texte, et la définition de tous les termes de droit, Paris 1841,vol. 1, pp. 131–152.
J. J. Delsol, Explication élémentaire du Code Napoléon, mise en rapport avec la doctrine et la jurisprudence, Paris, 1867, v. 1, pp. 248–249.
Archiwum Młynowskie Chodkiewiczów, p. 144 et seq.; Cyrkuł ii, vol. 99, fol. 260 et seq.
M. Chachaj, Poufne instrukcje dla adwokatów Aleksandra Chodkiewicza w sprawie rozwodowej z Karoliną z Walewskich, [in:] Zbrodnie, sensacje i katastrofy w prasie polskiej do 1914 roku, eds. K. Stępnik, M. Gabryś, Lublin 2010, pp. 67 et seq.
Archiwum Młynowskie Chodkiewiczów, p. 144 et seq.; Cyrkuł ii, vol. 99, fol. 260 et seq.
Si quelques-uns des faits allégués par l’époux demandeur, tonnent lieu a une poursuite criminelle de la part du ministere public, l’action en divorce restera suspendue jusqu’apres le jugement du tribunal criminel.
S. Salmonowicz, Europejskie kodyfikacje karne epoki Oświecenia: programy i ich realizacja, [in:] Ibid, Z wieku Oświecenia. Studia z dziejów prawa i polityki XVIII wieku, Toruń 2001, pp. 97–98.
J. G. Locre, Esprit du Code Napoléon, tiré de la discussion …, Paris 1807, vol. 4, p. 257 et seq.
Although I came across only two petitions, the allegations made in a few hundred other cases can be recreated based on court files.
TCKal, vol. 741, p. 123.
TCKal, vol. 9, fol. 261–261v. In the Kaszyński spouses’ case, the tribunal’s decision was not in accordance with the code. Pursuant to its Art. 235, having notified the criminal court of the suspicion of offence, it should have suspended the divorce proceedings and waited for the criminal judgement. This was not what happened, however. Moreover, I found a letter by the prosecutor suggesting that the tribunal transfer to the corrective police court a case of a certain wife, who was a defendant in a divorce case, accused of belonging to a secret religious society (Arts. 277–279 of the Penal Code). Nonetheless, the court pronounced the divorce without waiting for the woman’s case to be resolved by the criminal court, and it only suggested that the prosecutor should be the one to initiate the penal proceedings (TCKal, vol. 330, fol. 218–219v). In another case, in which the wife accused her husband, who was a judge of the peace, of poisoning someone, the Kalisz tribunal decided to notify the criminal court and to suspend the divorce proceedings (TCKal, vol. 32, fol. 89). The Bydgoszcz tribunal also suspended the proceedings at least once on the basis of Art. 235 of the cc (TCByd, vol. 7, p. 329).
Art. 236 of the cc: Toute demande en divorce détaillera les faits elle sera remise, avec les pieces a l’appui, s’il y en a, au président du tribunal ou au juge qui en fera les fonctions, par l’époux demandeur en personne, a moins qu’il n’en soit empeché par maladie auquel cas, sur sa réquisition et le certificat de deux docteurs en médecine ou en chirurgie, ou de deux officiers de santé, le magistrat se transportera au domicile du demandeur pour y recevoir sa demande. [Every petition for divorce shall detail the facts; it shall be sent back, with the corroborating documents, if there are any, to the president of the court, or to the judge who shall perform his functions, by the married party demandant in person, unless prevented by illness; in which case, on his request, and the certificate of two doctors of physic or surgery or of two officers of health, the magistrate shall re pair to the residence of the demandant there, to receive his petition.].
Archiwum Młynowskie Chodkiewiczów, p. 107: similarly: TCKal, vol. 311, fol. 378v: The president made some remarks with a view of reconciling the spouses; TCKal, vol. 312, fol. 176v: both spouses were summoned and showed up on the prescribed day, but they were fiercely opposed to reconciliation; Cyrkuł iii, vol. 97, fol. 4v: the reconciliation suggested by the delegated judge could not be reached, as both spouses declared that they could not accept it.
For example: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 71 (presidential audiences are mentioned here); Cyrkuł iii, vol. 101, fol. 18v (here the wording pre-divorce formalities is used); TCkal, vol. 322, fol. 85 (here the wording is hearing for reconciliation of the parties).
Cyrkuł ii, vol. 99, fol. 229–229v. Similarly, in one of the cases pending before the Kalisz tribunal, the defendant admitted at the conciliation meeting to having insulted her husband (TCKal, vol. 323, fol. 831v). In another case, this time in Warsaw, the remarks and instructions given by the judge to both spouses with the view of convincing them to continue living together were ineffective, as both spouses declared they could not cohabit (Cyrkuł iii, vol. 99, fol. 76v–77).
TCKrak, vol. 171, p. 787.
TCKal, vol. 54, fol. 12, vol. 301, fol. 308.
TCKal, vol. 737, p. 387 (in the second of the cases mentioned, this took place at the hearing upon the president’s instructions).
A. Rosner, Sądy pokoju w Księstwie Warszawskim. Kształt prawny, funkcjonowanie, sędziowie i urzędnicy (Ph.D. thesis: Library of the Faculty of Law and Administration of the University of Warsaw), Warszawa 1985, pp. 87–94. Bronisław Fidelus also asserts that a high percentage of divorce pronouncements resulted, among others, from the fact that if the president saw no legal bases to hear a case, he did not allow it (B. Fidelus, Rozwód w orzecznictwie …, p. 258, footnote 37). Yet given the fact that a permission of citation had to be obtained (Art. 240 of the cc), this statement does not hold.
Le Droit civil français, par K. S. Zachariae …, vol. 1, p. 257.
An example of an annotation on permission to cite granted to a husband: TCKal, vol. 326, fol. 64.
Tous exploits seront faits a personne ou domicile: rais si l’huissier ne trouve au domicile ni la partie, ni aucun leses parens ou serviteurs, il remettra de suite la copie a un voisin, qui signera l’original.
For example: TCKal, vol. 7, fol. 234; Cyrkuł i, vol. 57, p. 158; State Archives in Warsaw: Akta stanu cywilnego gminy Mszczonów, powiat Grodzisk Mazowiecki [fond: 73/189/0], vol. 4, fol. 30–30v (in this case a copy of the petition was affixed not to the courtroom door, but to the door of the prosecutor’s office); State Archives in Lublin: Akta stanu cywilnego Parafii Rzymskokatolickiej w Radzyniu [fond: 35/1908/0], vol. 42, p. 2 (the petition was placed behind the bars of the Tribunal).
For example: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 36, p. 583; TCKal, vol. 58, fol. 169; State Archives in Warsaw: Akta stanu cywilnego gminy Wilanów [fond: 72/176/0], vol. 21, fol. 24; TCByd, vol. 12, p. 281. Moreover, announcements were placed in the press. For example: Gazeta Warszawska 1809, no. 10, p. 187.
For example: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 33, p. 318, vol. 46, p. 72 (the defendants were imprisoned in Kielce and in Lviv, respectively, that is outside of the boundaries of the Republic of Kraków). Moreover: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 36, p. 385.
Cyrkuł iii, vol. 110, fol. 12.
Sometimes the defendant drafted his or her response to the divorce petition before him, for example: TCKal, vol. 8, fol. 181–184v, vol. 41, fol. 206–209v,vol. 50, fol. 7–7v; TCKrak, vol. 165, p. 1237.
TCKal, vol. 744, fol. 132v.
łajdak, kurwiarz, włóczęga.
TCKal, vol. 55, fol. 137–140, vol. 738, p. 279.
TCKal, vol. 738, pp. 371–372.
TCKal, vol. 738, p. 738.
Moreover, a code commentator Jean Joseph Delsol asserted that the petition had to be dismissed, as the circumstances in support of it were not sufficient to allow it being heard. At the same time, he clarified: Facts are only […] admissible when their proof can be produced, and it can only be produced when, on the one hand, it is not barred by law, and on the other hand, when facts were or could have been witnessed by someone, or if at least they left traces that can be evaluated (J. J. Delsol, Explication élémentaire …, vol. 1, p. 249). In the material studied I have not come across a single dismissal of a petition due to inadmissibility of proof of the circumstances that were indicated in its support.
L’action en divorce sera éteinte par la réconciliation des époux survenue soit depuis les faites qui auraient pu autoriser cette action soit depuis la demande en divorce. [The suit for divorce shall be extinguished by the reconciliation of the parties, whether occurring subsequently to the facts which may have authorized such suit, or subsequently to the petition for divorce].
Moreover, this allegation was sometimes made ineffectively–for example: TCKal, vol. 738, p. 95.
TCKal, vol. 335, fol. 265–267. Jean Joseph Delsol was also of the opinion that another basis for dismissal of the petition was mutual fault, that is, a situation when both of the spouses had committed adultery or had been sentenced to infamous punishment (J. J. Delsol, Explication élémentaire …, vol. 1, pp. 245–246). I have not found any dismissals motivated by this reason, however.
B. Fidelus, Rozwód w orzecznictwie …, p. 216.
Immédiatement apres l’admission de la demande en divorce, sur le rapport du juge commis, le commissaire du Gouvernement entendu, le tribunal statuera au fond. Il fera droit a la demande, si elle lui paraît en état d’etre jugée sinon il admettra le demandeur a la preuve des faits pertinens par lui allégués et le défendeur a la prevue contraire. [Immediately after the admission of the petition for divorce, on the report of the judge appointed, the commissioner of government being heard, the court shall adjudge fully. It shall give judgement on the petition, if it appear in a state to be decided on; if not, it shall admit the petitioner to proof of pertinent facts alleged by him, and the defendant to contrary proof].
For example: TCKal, vol. 311, fol. 379–379v. Since the wife’s infidelity could be proven with certificates of birth of children out of wedlock, and since she admitted to adultery, hearing the witnesses was unnecessary and the tribunal pronounced divorce without further ado. Evidentiary proceedings were also superfluous in these cases: TCKal, vol. 54, fol. 12; Cyrkuł ii, vol. 99, fol. 5v-6, vol. 99, fol. 16–22.
J. A. Rogron, Code de procédure civile …, vol. 1, p. 286.
TCKal, vol. 23, fol. 212 (having acknowledged disobedience), vol. 23, fol. 264v, vol. 49, fol. 484, vol. 62, p. 553, vol. 292, p. 136, vol. 335, fol. 35; Cyrkuł ii, vol. 99, fol. 250 (Thus, in consideration of the defendant’s failure to appear, the court allows the case to be resolved in absentia); Cyrkuł iii, 110, fol. 17–17v; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 33, p. 313; TCKrak, vol. 250, case of the Czajkowski spouses, no. 83 [s.l.].
TCKal, vol. 22, fol. 194v, vol. 330, fol. 113, vol. 738, pp. 191 and 278.
TCKal, vol. 305, fol. 223.
J. A. Rogron, Code de procédure civile …, vol. 1, pp. 303–304.
TCKal, vol. 305, fol. 223.
TCKal, vol. 295, fol. 70.
TCKal, vol. 1, fol. 256, vol. 2, p. 265, vol. 23, fol. 128v. Sometimes, however, custody was given to the mother–for example: TCKal, vol. 8, fol. 205–205v (in this case there was no choice since the defendant’s location was unknown); similarly: TCKal, vol. 8, fol. 185v: And leaves the child that the mother is holding to her breast with her; analogously: TCKal, vol. 37, fol. 266–266v (in this case the husband was poor, which was confirmed by a relevant document, but despite his material situation he demanded that children be given to him).
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 22, p. 376; Krakowskie sądy wyższe, vol. 307: Sentencjonarz sądu apelacyjnego (1823), p. 5; Cyrkuł i, vol. 16, p. 2; TCKal, vol. 738, p. 389.
For more on the interlocutory decision: J. A. Rogron, Code de procédure civile …, vol. 1, pp. 239–240; H. Krzyżanowski, Zasady postępowania …, p. 269.
TCKal, vol. 299, fol. 246. One of the few preserved divorce petitions included a request for authorization to leave the husband’s house (Cyrkuł ii, vol. 99, fol. 261).
TCKal, vol. 1, fol. 256, vol. 2, p. 265; similarly: TCKal, vol. 8, fol. 185v: The petitioner is also to continue providing the defendant with lodging and wood for fuel. The opposite has also taken place, that is the husband lived in his wife’s house during the trial–Cf. Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 40, p. 7. Cf. also: Cyrkuł i, vol. 63, p. 117–118; Cyrkuł iii, vol. 94, fol. 11.
In Congress Poland this changed upon the implementation of Art. 75 of Prawo o ustaleniu własności dóbr nieruchomych, o przywileiach i hypotekach w mieysce tytułu XVIII. księgi III. kodexu cywilnego [The Law on the Establishment of Property of Real Estate, on Privileges and Mortgages Replacing Title XVIII of Book II of the Civil Code] (Dziennik Praw, vol. 5, p. 293 et seq.). From this moment on, the new statutory property regime was dowry management (Pol. rząd posagowy, a type of separation of property under which the husband managed the wife’s assets).
TCKal, vol. 6, fol. 433v, vol. 10, fol. 19v.
TCKal, vol. 8, fol. 205v.
State Archives in Warsaw, Kancelaria Jana Wincentego Bandtkie pisarza aktowego Królestwa Polskiego [fond: 72/667/0], vol. 20 d.) entry no. 765.
TCKal, vol. 23, fol. 264v, vol. 298, fol. 281.
Judgement of 3 March 1812: 300 Prussian thalers annually from the date of submission of the petition, payable quarterly (TCKal, vol. 299, fol. 246). Judgement of 3 July 1812: orders the defendant to pay four thalers a month, payable [to the wife] on a regular monthly basis starting from the submission of the petition for divorce, that is from 6 June 1811 under pain of court enforcement (TCKal, vol. 300, fol. 208). Judgement of 1 December 1812: 25 thalers monthly payable from the date of submission of the petition, (TCKal, vol. 301, fol. 498). At a public hearing held on 8 December 1816, a settlement of the parties regarding alimentary pension of 40 zlotys monthly was attached to the minutes (TCKal, vol. 304, fol. 141). Judgement of 29 January 1817: 50 thalers monthly from the date of commencement of divorce, (TCKal, vol. 738, p. 97). Judgement of 16 December 1824: 24 zlotys monthly (TCKal, vol. 333, fol. 652v). Judgement of 14 January 1823: 30 zlotys [Krakowskie sądy wyższe, vol. 307: Sentencjonarz sądu apelacyjnego (1823), p. 5]. This calls for an explanation of why the amounts are expressed in different currencies. Coins from pre-partition times were in circulation in the Duchy of Warsaw, as well as Prussian, Austrian, Russian, French, Saxon money and coins minted by Austria and Prussia especially for the annexed Polish territories. The Duchy’s own monetary system was regulated by the decree of 9 June 1810 [Dziennik Praw, t. 2, pp. 229–232. The following coins were minted: dukat (18 zlotys), talar (6 zlotys), dwuzłotek (2 zlotys), złotówka (10 grosz), szóstak (6 grosz), piątak (5 grosz), trojak (3 grosz)]. Despite this, Prussian coins were also in use (R. Kowalczyk, Polityka gospodarcza i Finansowa Księstwa Warszawskiego w latach 1807–1812, Łódź 2010, pp. 326 and 336). A monetary reform was implemented in the Kingdom of Poland by virtue of the decree dated 1 December 1815. The new circulating medium was the Polish zloty, which was divided into 30 grosz (Historia państwa i prawa Polski, vol. 3: Od rozbiorów do uwłaszczenia, eds. J. Bardach, M. Senkowska-Gluck, Warsaw 1981, p. 381). This currency was also legal tender in the Free City of Kraków, but in 1835 it began to mint its own zlotys (I. Ihnatowicz, A. Biernat, Vademecum do badań nad historią XIX i XX wieku, Warszawa 2003, p. 91).
For example: On 29 November 1817 the Kalisz tribunal ordered an inventory of movables, but it does not clearly follow from the minutes whether this was a decision based on Art. 270 of the cc (TCKal, vol. 738, p. 97).
Although these regulations were included among provisions on obligations (even the section title: Of the Proof of Obligations and of that of Payment suggested they related to contractual issues), the evidentiary rules applied also in relations governed by other areas of the civil law (J. J. Delsol, Explication élémentaire …, t. 2, pp. 563–564).
This is because according to the French legislation and doctrine, general evidentiary rules and defining evidentiary measures were a part of substantive law, while procedure was to regulate only the forms pursuant to which individual pieces of evidence were to be examined (H. Capitant, Introduction à l’étude du droit civil: notions générales, Paris 1927, pp. 375–376).
For example: TCByd, vol. 3, fol. 34v.
For example: TCKal, vol. 295, fol. 75v.
Examples of cases in which the defendants waived their right to appoint witnesses: TCKal, vol. 295, fol. 75v; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 18, p. 799.
Examples of cases in which the defendants appointed their own witnesses: TCKal, vol. 298, fol. 284; Cyrkuł iii, vol. 97, fol. 17v. Spouses acting as defendants usually appointed their own witnesses in a bid to prove that the petitioning spouse had committed some wrongdoings. This is because dissolution of marriage at mutual fault was also a possible option (for example: Cyrkuł iii, vol. 118, fol. 61), which affected the financial settlements.
E. Waśkowski, “Zasady procesu cywilnego”, Rocznik Prawniczy Wileński 1930, vol. 4, p. 193; T. Ereciński, “Znaczenie francuskiego Code de procédure z 1806 roku dla rozwoju procesu cywilnego w Polsce”, Czasopismo Prawno-Historyczne 2005, vol. 57, fasc. 2, p. 135; Historia państwa i prawa Polski, vol. 3, p. 153.
Those presumptions which are not established by law are committed to the sagacity and prudence of the magistrate, who must only admit presumptions grave, precise and concordant, and in those cases only in which the lad admits testimonial proofs, unless the act should be impeached for cause of fraud or deceit. [Les présomptions qui ne sont point établies par la loi, sont abandonnées aux lumieres et a la prudence du magistrat, qui ne doit admettre que des présomptions graves, précises et concordantes, et dans les cas seulement ou la loi admet les preuves testimoniales, a moins que l’acte ne soit attaqué pour cause de fraude ou de dol]. As a commentator of this code pointed out: Yet concordance of presumptions must be deemed merely an echo of an old theory, which required the presumptions to be confluent, just like to testimonial proof it applied the rule of testis unus, testis nullus. Today, when testimonies are not counted but weighed, also presumptions should be considered for their weight and not number. This leads to this conclusion that if a single presumption is so weighty in and of itself that it gives certainty to the judge, he can accept it as evidence (J. J. Delsol, Explication élémentaire …, vol. 2, pp. 610–611).
W. Wołodkiewicz, M. Zabłocka, Prawo rzymskie. Instytucje, Warszawa 2001, p. 309; W. Dajczak, T. Giaro, F. Longchamps de Berier, Prawo rzymskie. U podstaw prawa prywatnego, Warszawa 2009, p. 174. The strength of this long-extinct legal rule in Poland is attested to by the fact that also today courts have to point out that it is no longer in effect – for example: Judgement of the Voivodeship Administrative Court in Warsaw dated 31 January 2013 (iii sa/Wa 1672/12); Judgement of the Court of Appeal in Warsaw–ii Penal Division dated 25 February 2015 (ii AKa 484/14); Decision of the Supreme Court–Criminal Chamber dated 9 January 2014 (v kk 305/13).
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 3, p. 22–24; similarly: vol. 30, p. 79. Only one witness saw the husband beating his wife, but a document confirming her injuries was also produced.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 52, pp. 14–15.
Strafgesetz über Verbrechen und schwere Polizei übertretungen, Wien 1803, p. 1, Chapter x (§ 396–114).
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 52, p. 18.
The defectiveness of this position was pointed out by one of the counsels in another case: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 30, p. 27.
TCKrak, vol. 159: Księga II wyroków cywilnych … Wydział I. Nr 114–228 (1817), pp. 766–767. In another case, the very same tribunal found outrageous conduct, ill-usage and grievous injuries to be sufficiently proven, even though only one witness testified on them, because the petitioner had presented a document issued by a health official (Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 30, pp. 79–80).
For example: TCKal, vol. 298, fol. 26v (The testimony of one witness who claims to have seen the defendant in the same bed with a stranger, sleeping under a coat, does not prove adultery, both because it is not supported by the testimony of a second witness, and because it does not purport that actual adultery took place, and cannot be considered sufficient proof). In another judgement, the same tribunal observed as follows: Neither Art. 253 of the Civil Code nor Art. 281 of Code of Civil Procedure stipulate a fixed number of witnesses required to prove such an offence (TCKal, vol. 294, fol. 303v).
TCKal, vol. 7, fol. 159: The petitioner turned to the court on the foundation of Art. 229 of the Civil Code, demanding divorce from his wife on grounds of her adultery, which he intends to prove by way of both inquisition and an official document, that is the certificate of baptism of a child born out of this adulterous act, extracted from the church records from […] Frankfurt am Oder, a city of His Majesty King of Prussia. Similarly: TCKal, vol. 2, p. 121, vol. 311, fol. 378v, vol. 313, fol. 194, vol. 323, fol. 813.
TCKal, vol. 323, fol. 814: According to the official entry made by a civil status official of the Kalisz municipality on 4 April 1821, the defendant recognized as his own a female child born to miss Julianna Machej.
TCKal, vol. 299, fol. 81, vol. 305, fol. 223–223v.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 30, p. 79; TCKal, vol. 8, fol. 182v; Cyrkuł ii, vol. 99, fol. 230v; Cyrkuł ii, vol. 99, fol. 116v: Finally, she presents an attestation issued on thirteenth June of this year by medical doctor W. Czekierski, confirming that the petitioner suffers from deafness of the left year as a result of a beating.
Cyrkuł iii, vol. 120, fol. 77v.
Krakowskie sądy wyższe, vol. 240: Wyroki cywilne sądu apelacyjnego (1818), pp. 941.
TCKal, vol. 4, fol. 111v. It must be stressed that in this case the physician was treated as an ordinary witness, and not as an expert. In describing the condition of the petitioner beaten by her husband, he testified that there were visible bruises and blood smears on her body.
TCKal, vol. 50, fol. 6–7.
TCKal, vol. 312, fol. 182.
TCKal, vol. 23, fol. 212v. I have also seen a reference of a letter written by the petitioner himself to the police president, complaining about his wife’s infidelity (Cyrkuł ii, vol. 99, fol. 63v).
For example: TCKal, vol. 305, fol. 223v (letters of a husband to his wife); similarly: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 9, p. 178 (In the letters written to his friends, he made denigrating remarks about his wife, full of suspicion and poisoning the family peace); Cyrkuł iii, vol. 108, k. 5v-6.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 9, p. 254; TCKal, vol. 305, fol. 223v.
Archiwum Młynowskie Chodkiewiczów, p. 149: Aleksander Chodkiewicz wrote to the brother of his wife, among others, that he would not support her financially, as there existed a risk that she would use this money to maintain another man.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 236.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 55, p. 132–134; similarly: TCKal, vol. 6, fol. 447v: handwritten letters of the defendant show that she has left for love to another country, that she does not want to live with the petitioner, and that while abroad she gave birth to a son, which is attested to by a birth certificate of said son, dated 5th March of this year in Frankfurt am Oder, and thus the court is requested to accept this fact as proof pursuant to Art. 253 of the procedure and Arts. 1341 and 1352 of the Civil Code, and thus it grants divorce on the basis of Art. 230.
Cyrkuł iii, vol. 97, fol. 6–7.
Cf. J. A. Rogron, Code de procédure civile …, vol. 1, pp. 399–400.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, pp. 923–924.
J. A. Rogron, Code de procédure civile …, vol. 1, p. 400.
TCKal, vol. 50, fol. 8. Pursuant to a short guidebook issued at the order of the minister of justice [Wzory różnych czynności sądowych stosownie do kodexu prawnego wydane w Warszawie za upoważnieniem ministra sprawiedliwości (Warszawa 1808)], the questions were to be fairly detailed (p. 155).
J. A. Rogron, Code de procédure civile …, vol. 1, p. 417. An example of a woźny’s account concerning the service of summons to witnesses: TCKrak, vol. 431, case no. 205 [s.l.].
J. A. Rogron, Code de procédure civile …, vol. 1, p. 417. This happened in practice: TCKal, vol. 294, fol. 140–140v.
J. A. Rogron, Code de procédure civile …, vol. 1, p. 423.
Examples of remarks: TCKal, vol. 9, fol. 417, vol. 17, fol. 3, vol. 49, fol. 486.
For example: TCKrak, vol. 17, fol. 6, vol. 250, fol. 11v.
For example: TCKrak, vol. 250, case no. 2, vol. 431, case no. 205 [s.l.]; TCKal,vol. 7, fol. 234v.
In contrast, Art. 312 of the French Code of Civil Procedure of 1808, includes a reference to God in the jury’s oath (Code d’instruction criminelle, édition conforme a l’édition originale du Bulletin des lois; suivi des motifs exposés …, Paris 1810).
J. A. Rogron, Code de procédure civile …, vol. 1, pp. 423–424.
TCKal, vol. 17, fol. 2.
TCKrak, vol. 250, divorce case of the Ciszewski spouses, judgement no. 202 [s.l.]; similarly: I Nachem, I Izaak, I Mojżej Lejb, I Józef, do swear that I will answer all the court’s questions asked in relation to the divorce case of the Wieder spouses truthfully and to the best of my knowledge (TCKrak, vol. 431, case no. 205 [s.l.]). Examples of annotations on oaths given, but without the wording: TCKal, vol. 17, fol. 2; Cyrkuł iii, vol. 97, fol. 21v–22, vol. 108, fol. 8v.
[…] celui qui aura bu ou mangé avec la partie, et a ses frais, depuis la pronunciation du jugement qui a ordonné l’enquete; celui qui aura donné des certificats sur les faits relatifs au proces; les serviteurs et domestiques; le témoin en état d’accusation; celui qui aura été condamné a une peine afflictive ou infamante, ou meme a une peine correctionnelle pour cause de vol.
In one of the cases, the tribunal refused to hear the petitioner’s son (TCKal, vol. 294, fol. 218v). However, kin admitted by Art. 251 of the cc were often heard (for example: TCKal, vol. 298, fol. 342v).
Les parens des parties, a l’exception de leurs enfants et descendans, ne sont pas reprochables du chef de la parenté, nonplus que les domestiques des époux, en raison de cette qualité mais le tribunal aura tel égard que de raison aux dépositions des parens et des domestiques. The relations of the parties, with the exception of their children and descendants cannot be excepted to on the ground of their affinity, nor can the domestics of the parties by reason of such quality; but the court shall have such regard as reason requires to the depositions of relations and servants.
For example: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, pp. 87 and 139. Witness Brzeczowska, against whom Himanowska [petitioner] objected, stating that the witness hates her, because when she was for a time […] in her service, she was not getting paid in money, but in things needed for daily use. The tribunal, however, declared this objection unlawful. Another example: TCKal, vol. 295, fol. 75v: That witnesses no. 1 and no. 2 are members of the petitioner’s household, and witness no. 4 is the petitioner’s kin. In this case the objections were obviously ineffective too, as the tribunal based its judgement on these witnesses’ testimonies. The grounds for this decision are not preserved, however. A party could also raise that the opponent’s witness was appointed too late (Cyrkuł iii, vol. 97, fol. 23v). Cf. also: Cyrkuł iii, vol. 99, fol. 112v et seq. An example of an annotation on no objections: TCKal, vol. 294, fol. 167v.
Le témoin reproché sera entendu dans sa déposition. The application of this provision caused some trouble for the Kraków tribunal. Namely, by way of an interlocutory decision of 6 September 1816, the tribunal suspended the hearing of those witnesses appointed by the petitioning party against whom objections had been raised. Yet on 26 October 1816, the appellate court indicated that this suspension was in violation of Art. 284 of the cpc and that all the witnesses proposed by the petitioner should have been heard at the same session, regardless of any objections raised against them [Krakowskie sądy wyższe, vol. 236: Wyroki cywilne sądu apelacyjnego (1816), p. 475 et seq.].
Although there were exceptions too: Cyrkuł iii, vol. 101, fol. 10.
More precisely: court files rarely contain any traces of such additional questions. For example: TCKrak, vol. 17, fol. 3v.
For example: TCKal, vol. 300, fol. 317.
[…] des conséquences que la loi ou le magistrat tire d’un fait connu a un fait inconnu.
There was a clear separation between presumptions established by law and presumptions not established by law, that is conclusions drawn by the judge himself (Arts. 1349 and 1353 of the cc). Of course these latter presumptions were used rarely by the courts, only in indications of legal bases (for example: TCKal, vol. 33, fol. 125v).
1. Les actes que la loi déclare nuls comme présumés faits en fraude de ses dispositions, d’apres leur seule qualité; 2. Les cas dans lesquels la loi déclare la propriété ou la liberation résulter de certaines circonstances déterminées; 3. L’autorité que la loi attribute a la chose jugée; 4. La force que la loi attache a l’aveu de la partie ou a son serment.
Cf. J. J. Delsol, Explication élémentaire …, vol. 2, pp. 607–608.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 33, p. 314 (husband condemned for fraud by a court of the Kingdom of Poland), vol. 39, p. 121 (husband condemned for theft); TCByd, vol. 12, p. 259 (husband condemned for violent robbery); TCKal, vol. 8, fol. 320v (husband condemned for theft by a Prussian court), vol. 58, fol. 169v (husband condemned for violence against his wife).
TCKal, vol. 335, fol. 34 and 265v.
L’aveu judiciaire est la déclaration que fait en justice la partie ou son fondé de pouvoir spécial. Il fait pleine foi contre celui qui l’a fait.
J. J. Delsol, Explication élémentaire …, vol. 2, pp. 612–613. A different, rather incorrect position was presented by the Warsaw Court of Appeals in its judgement of 3 July 1823L the defendant against whom the appeal was lodged is deemed to have admitted to the allegations by her failure to appear (Cyrkuł iii, vol. 120, fol. 69).
Cyrkuł ii, vol. 99, fol. 83v-84v. The defendant husband admitted that after their material situation worsened, they started having conflicts and became more distant, and that he committed adultery a few times (fol. 80v-81). Similar were the arguments presented by a prosecutor of the Kalisz tribunal: In divorces for a determined cause, even if the facts are admitted by the accused spouse, they should be proven by inquisition, or else all kinds of ill-usage can be invented and grievous injuries admitted in order to trick the laws on divorce at mutual consent (which the parties deem less convenient) (TCKal, vol. 9, fol. 248.). Such was also the opinion of the judges: TCKal, vol. 7, fol. 262v., TCKal, t. 298, fol. 6v.
For example: TCKal, vol. 3, fol. 301, vol. 323, fol. 831v-832.
TCKal, vol. 311, fol. 379–379v.
148 For example: in the case of the Zajączkowski spouses, the tribunal had at its disposal a handwritten letter of the petitioning wife, in which she confessed to adultery and declared that her reason for writing the letter was to avoid hearing witnesses, and yet it still deemed testimonial proof indispensable, and established the facts solely upon the testimonies heard (Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 55, p. 119 et seq.). The contents of this letter are quoted on page 126.
Cyrkuł iii, vol. 94, p. 13.
Cyrkuł ii, vol. 99, fol. 5v-6; similarly: vol. 99, fol. 16–22, fol. 26 et seq., fol. 55 et seq., fol. 74 et seq., fol. 99, p. 187 et seq.; Cyrkuł iii, vol. 94, fol. 6, vol. 97, fol. 11–14, vol. 108, fol. 20v; Cyrkuł iv, vol. 53, allegata no. 102 concerning the Zabłocki spouses [s.l.]. Also one of the divorces pronounced by the Bydgoszcz tribunal was based solely on acknowledgement of facts by the defendant. Nevertheless, due to the fragmentary state of preservation of Bydgoszcz files, it is difficult to draw any more general conclusions about the Bydgoszcz judicial line. 3, fol. 34v–35).
J. J. Delsol, Explication élémentaire …, vol. 2, p. 616.
H. Capitant, Introduction …, pp. 405–406.
Le serment ne peut etre référé quand le fait qui en est l’objet n’est point celui des deux parties, mais est purement personnel a celui auquel le serment avait été déféré.
TCKal, vol. 23, fol. 128v. In a few other cases petitioning wives also tried to prove what their husbands had done with the use of the oath, but this was not approved by the tribunal. For example: TCKal, vol. 295, fol. 21v.
Krakowskie sądy wyższe, vol. 237: Wyroki cywilne sądu apelacyjnego (1817), pp. 173–176 [minutes of the same hearing in: Krakowskie sądy wyższe, vol. 301: Wyroki cywilne sądu apelacyjnego (1816–1817), p. 59].
J. J. Delsol, Explication élémentaire …, vol. 2, pp. 622–323.
TCKal, vol. 62, fol. 552.
TCKal, vol. 731, p. 202.
TCKal, vol. 6, fol. 183v.
TCKal, vol. 41, fol. 239v.
Krakowskie sądy wyższe, vol. 240: Wyroki cywilne sądu apelacyjnego (1818), pp. 941.
TCKrak, vol. 187, fol. 571v.
Lorsque le divorce sera demandé par la raison qu’un des époux est condamné a une peine infamante, les seules formalités a observer consisteront a présenter au tribunal civil une expédition en bonne forme du jugement de condamnation, avec un certificat du tribunal criminel, portant que ce meme jugement n’est plus susceptible d’etre réformé par aucune voie légale.
Minors could also marry; the minimum age was 18 years old for men and 15 years old for women, but in such events the consent of their parents was required (Art. 144 of the cc read in conjunction with Art. 148 of the cc).
Examples of notary’s deeds containing such consent: State Archives in Warsaw: Kancelaria Jana Wincentego Bandtkie pisarza aktowego Krolestwa Polskiego [fond: 72/667/0], vol. 8 d. 4a) entry no. 342, vol. 24 d. 10a) entry no. 901 (fol. 1 et seq.).
J. B. Treilhard, Exposé des motifs …, vol. 2, p. 331.
J. B. Treilhard, Exposé des motifs …, vol. 3, pp. 331–332.
Example of a letter concerning an agreement on property matters made by spouses divorcing under this procedure: agad, Archiwum Publiczne Potockich, vol. 263, pp. 547–548.
For example: State Archives in Warsaw: Kancelaria Jana Wincentego Bandtkie pisarza aktowego Krolestwa Polskiego [fond: 72/667/0], vol. 15 (6 b), files no. 559 and 560.
TCKal, vol. 25, fol. 118–119v; J. Savoye-Rollin, Rapport fait au tribunat, par le tribun Savoye-Rollin, au nom de la section de législation, sur la loi relative au divorce, [in:] Code civil des Français: suivi de l’exposé des motifs, sur chaque loi, présenté par les orateurs du gouvernement …, Paris 1804, vol. 2, p.358; Le Droit civil français, par K. S. Zachariae, vol. 1, pp. 264–267.
H. Le Goasguen, Le divorce devant l’opinion, les chambres et les tribunaux, Rennes 1913, p. 19; J. B. Treilhard, Exposé des motifs …, p. 332.
For example: TCKrak, vol. 205: Księga II wyroków cywilnych … Wydział I. Nr 126–249, the Bucholtz spouses case, examined on 30 May 1832 [s.l.].
For example: TCKrak, vol. 194: Księga III wyroków cywilnych … Wydział I, p. 473; TCKal, vol. 55, fol. 35-35v. Example of an argumentation of a conclusion entered in the minutes: TCKal, vol. 330, fol. 490; Cyrkuł iii, vol. 110, fol. 67v et seq. Ignacy Stawiarski claims that documents of this kind were submitted after the delivery of the judgement (Postrzeżenia nad procedurą sądową różnych krajów i czasów, [in:] Ogulna Ordynacya Sądowa dla Państw Pruskich, Warszawa 1809, vol. 2, pp. xlii–xliii); A. Łabęcki, Krótki rys processu stosownego do Kodexu Napoleona, przedstawiony z zlecenia JW. ministra sprawiedliwości z przyłączeniem nót i stosownych artykułów, Warszawa 1808, p. 9 (footnote concerning Art. 142).
TCKal, vol. 15, fol. 11-11v. Other examples: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 75; Cyrkuł iii, vol. 111, p. 41.
Same in: H. Krzyżanowski, Zasady postępowania …, p. 334.
J. A. Rogron, Code de procédure civile …, vol. 1, p. 241.
For example: TCKal, vol. 731, p. 201.
La rédaction des jugements contiendra les noms des juges, du procureur impérial, s’il a été entendu, ainsi que des avoués; les noms, professions et demeures des parties, leurs conclusions, l’exposition sommaire des points de fait et de droit, les motifs et le dispositif des jugements. The same formal requirements applied to all types of judgements. Cf: J. A. Rogron, Code de procédure civile …, 1, pp. 239–240. In this subchapter I focus on the definitive judgements (jugements définitifs), that is judgements that decided on the merits of the case.
For more about the term profession see: Subchapter 3.8.
Ignacy Stawiarski asserts that, in line with the practice that emerged in Poland, motywa were drafted only when one of the parties requested the issuing of a certified copy of the judgement (I. Stawiarski, Postrzeżenia nad procedurą sądową różnych krajów i czasów, [in:] Ogulna Ordynacya Sądowa dla Państw Pruskich, Warszawa 1809, vol. 2, pp. xlii–xliii). My query has not allowed me to refute this statement.
Cf. H. Krzyżanowski, Zasady postępowania …, p. 334.
An example of a relatively detailed description of the reasoning that led the court to establish the facts: TCKal, vol. 33, fol. 125 et seq.
For example: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 94, p. 6 et seq.
For example: Cyrkuł iii, vol. 110, fol. 45v.
Art. 163. For more about differences between the two procedures: P. J. Thomine-Desmazures, Commentaire sur le Code de procédure civile, Bruxelles 1838, vol. 1, p. 189.
For example: Cyrkuł iii, vol. 111, p. 42 (Art. 224 of the cc is cited instead of Art. 229); TCKal, vol. 741, p. 123 (Art. 230 of the cc instead of Art. 229).
State Archives in Łódź: Urząd Stanu Cywilnego Parafii Rzymskokatolickiej w Łowiczu – Kolegiata [fond: 39/1571], vol. 12, the Bohm spouses divorce judgement [s.l.]. A slightly different wording of the clause: TCByd, vol. 3, fol. 29. The words wszem wobec i każdemu z osobna komu o tym wiedzieć należy wiadomo czynimy (Let it be known to all and every one whom it may concern …) were retained in the clause also in later periods.
Cyrkuł ii, vol. 99, fol. 3. Controversies were not avoided, as many judges were of the opinion that despite the occupation, they were still bound by the oath given to Frederick Augustus, and that he was still their monarch (J. Przygodzki, Rada Najwyższa Tymczasowa Księstwa Warszawskiego 1813–1815. Organizacja i działalność, Wrocław 2002, p. 103 et seq.).
Cyrkuł ii, vol. 99, fol. 55.
Krakowskie sądy wyższe, vol. 266: Wyroki cywilne sądu apelacyjnego 1830, pp. 363.
For example: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 114, p. 31, vol. 117, p. 31.
TCByd, vol. 14, p. 1.
Prawo cywilne obowiązujące w Królestwie Polskiem, ed. S. Zawadzki, Warszawa 1861, vol. 2, p. 235. In practice, this original wording was modified in various ways, for example: We advise and order all komornicy from whom it may be requested to enforce this judgement; all the general prosecutors and prosecutors of tribunals to ensure this; all commanders and officials of the armed forces to come to their aid if called upon to do so (Cyrkuł iii, vol. 110, fol. 24–24v).
Prawo cywilne obowiązujące w Królestwie Polskiem …, vol. 2, p. 234, H. Krzyżanowski, Zasady postępowania …, p. 333. Cf: Rozporządzenie co do sposobu wprowadzania spraw przez obrońców i składania redakcji do wyroków, [in:] Zbiór Przepisów Administracyjnych Królestwa Polskiego, Wydział Sprawiedliwości, Warszawa 1867, p. 2, vol. 8, p. 105 et seq.
J. A. Rogron, Code de procédure civile …, vol. 1, p. 53; W. Sobociński, Historia ustroju i prawa …, p. 265, footnote 80.
H. Chwalibóg, Wykład kodexu …, p. 189; J. Szymanowski, Wykład kodeksu postępowania cywilnego, Warszawa 1866, vol. 1, p. 270.
I. Stawiarski, Postrzeżenia nad procedurą …, pp. lxii–lxiii. The fact that there was indeed a difference between France and Poland in this regard is also suggested by Hieronim Krzyżanowski (Zasady postępowania …, p. 281). Hipolit Chwalibóg criticized the practice of drawing up grounds many months or even years after the judgement was passed (Wykład kodexu …, p. 190).
An ordinance of the Government Justice Commission of May 1830 also suggests that motywa were drafted after the delivery of judgements (Zbiór Przepisów Administracyjnych …, p. 2, vol. 7, pp. 483–485).
One divorce was the result of spouses’ agreement pursuant to § 716 p. ii, vol. i of Landrecht (TCKal, vol. 18, fol. 209). The others were adjudicated at one party’s fault. One of the judgements referenced Prussian laws generally, and in this case the issue was physical and psychological violence of the husband against the wife (TCKal, vol. 5, fol. 335v); another marriage was dissolved because the mutual repulsion of the spouses runs so deep that it cannot be expected for the marriage to fulfil its objective, that is based on § 718a, p. ii, vol. i of Landrecht (TCKal, vol. 298, fol. 75v); in two remaining cases, a number of paragraphs was cited. In one case these were: § 700, § 703, § 716, § 670, p. ii, vol. i of Landrecht (TCKal, vol. 1, fol. 96v), and in the other: § 670, § 694, § 699, p. ii, vol. i of Landrecht (TCKal, vol. 292, p. 25). Dziennik Wyroków Sądu Kassacyinego Xsięstwa Warszawskiego, vol. 3, no. 1, pp. 4–7. Commentary: W. Sobociński, “Sprawy warszawskie przed sądami Księstwa Warszawskiego”, Przegląd Historyczny 1990, vol. 81, no. 3–4, p. 613 et seq. Sources of other types also offer evidence that divorce regulations of Landrecht were applied in the Polish territories. An example of a press release: Gazeta Warszawska 1809, no. 85, p. 1602. Landrecht was also applied in the case of Ewa Jabłońska née Dursz (Sześcioletnia korespondencja …, p. 383 et seq.).
TCKal, vol. 738, p. 443.
Sometimes, however, both spouses were found guilty. For example: Cyrkuł iii, vol. 118, fol. 29 et seq., vol. 120, fol. 75 et seq.; Cyrkuł vii, vol. 1, entry no. 1. The report made in respect of the first of these cases shows that four conciliation meetings were held–two for each of the lodged petitions. Surely two petitions had been lodged in the cases which ended in a pronouncement of divorce in Mszczonów in 1813. In this case, however, only the divorce pronouncement survived to our times, and therefore no details concerning the trial are known (State Archives in Warsaw: Akta stanu cywilnego gminy Mszczonów, powiat Grodzisk Mazowiecki [fond: 73/189/0], vol. 4, fol. 31 et seq.); similarly: State Archives in Piotrków Trybunalski: Akta stanu cywilnego gminy Rawa Mazowiecka [fond: 49/685/0], vol. 2, fol. 122-122v. In one of the cases pending before the Kraków tribunal, such a “reciprocal suit” took on the form of an ancillary motion (Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, t. 24, p. 140). The Kraków tribunal admitted two simultaneous petitions from the Sławiński spouses (Krakowskie sądy wyższe, vol. 198, p. 185).
TCKal, vol. 313, fol. 187v-188.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 9, pp. 110, 136 and 205. In the last case, it was added: and so pronounces.
TCKal, vol. 41, fol. 241v-242.
TCKal, vol. 323, fol. 814-814v.
Cyrkuł ii, vol. 99, fol. 85v-86.
TCKal, vol. 298, fol. 343.
TCKal, vol. 294, fol. 303v-304.
TCKal, vol. 33, fol. 126v-127.
It is true that the Kraków tribunal delivered two rulings based on Art. 231 of the cc concurrently with Art. 232 of the cc. Nevertheless, it can’t be said that this practice was fully concordant with the letter and the spirit of the provisions, since the court conducted an inquisition, even though it was not necessary for pronouncing a divorce based on Art. 232 of the cc (Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 21, p. 439 et seq., vol. 117, p. 59 et seq.).
TCKal, vol. 7, fol. 111 et seq., vol. 8, fol. 337, vol. 313, fol. 192 et seq.; Cyrkuł ii, vol. 99, fol. 240 et seq.; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 12, p. 717 et seq., vol. 52, p. 18 and similarly: vol. 27, p. 77 et seq., vol. 64, p. 79. In this case, the tribunal rendered a judgement based on Arts. 229 and 231 of the cc and sentenced the adulterous wife to time at a house of corrections. The appellate court upheld the divorce, but solely on the basis of Art. 231 of the cc and revoked the punishment.
TCKal, vol. 41, fol. 329 (here also grounds explaining that the evidentiary proceedings did not clarify all the significant circumstances concerning the allegation under Art. 231 of the cc); similarly: vol. 58, fol. 245.
B. Fidelus, Rozwód w orzecznictwie …, p. 258.
For example: TCKal, vol. 4, pp. 463–464, vol. 5, fol. 243-243v and 511-511v, vol. 294, fol. 287–288, vol. 298, fol. 26-26v, vol. 301, fol. 103–105v; TCKrak, vol. 159: Księga II wyroków cywilnych … Wydział I. Nr 114–228 (1817), pp. 765-767; Cyrkuł iii, vol. 108, fol. 4v-5.
TCKal, vol. 301, fol. 308–309v.
TCKal, vol. 301, fol. 333.
TCKrak, vol. 158: Księga I wyroków cywilnych … Wydział I. Nr 1–113 (I-III.1817), p. 817 et seq.; similarly: TCKrak, vol. 192: Księga I wyroków cywilnych … Wydział I, p. 619.
Krakowskie sądy wyższe, vol. 237: Wyroki cywilne sądu apelacyjnego (1817), p. 750.
TCKal, vol. 319, fol. 238 et seq.
Art. 259 of the cc: When the petition for divorce shall have been founded on causes of excess, cruelty, or grievous injury, although they shall be well established, the judges shall be at liberty not to allow the divorce immediately. In such case, before judgement is given, they shall authorize the woman to quit the society of her husband, without being bound to receive him, unless she judges it expedient; and they shall sentence the husband to pay her an alimentary pension proportioned to his means, if the wife has not herself sufficient funds to supply her wants. [Lorsque la demande en divorce aura été formée pour cause d’exces, de sévices ou d’injures graves, encore qu’elle soit bien établie, les juges pourront ne pas admettre immédiatement le divorce. Dans ce cas, avant de faire droit, ils autoriseront la femme a quitter la compagnie de son mari, sans etre tenue de le recevoir, si elle ne le juge a propos; et ils condamneront le mari a lui payer une pension alimentaire proportionnée a ses facultés, si la femme n’a pas elle-meme des revenus suffisans pour fournir a ses besoins]. An example of a probationary period prescribed in combination with an obligation to provide alimentary pension: TCKal, vol. 744, fol. 68 (5 thalers monthly, the child stayed with the mother).
Art. 260 of the cc: After a year of trial, if the parties are not reunited, the married person petitioning shall cause the other to be cited to appear before the court, within the intervals prescribed by law, there to hear final judgment pronounced, which shall then allow the divorce. [Apres une année d’épreuve, si les parties ne se sont pas réunies, l’époux demandeur pourra faire citer l’autre époux a comparaître au tribunal, dans les délais de la loi, pour y entendre prononcer le jugement déftnitif, qui pour lors admettra le divorce].
On the possibility of reconciliation as grounds for application of Art. 259 of the cc: Krakowskie sądy wyższe, vol. 198, p. 186.
J. G. Locre, Esprit du Code Napoléon …, pp. 309–317.
B. Fidelus, Rozwód w orzecznictwie …, p. 256.
TCKal, vol. 330, fol. 428 et seq.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, p. 686 (two months), p. 715 (four months), p. 790 (three months).
Toute instance, encore qu’il n’y ait pas eu constitution d’avoué, sera éteinte par discontinuation de poursuites pendant trois ans.
F. Słotwiński, Rys postępowania cywilnego w sądach wolnego miasta Krakowa porównany z postępowaniem cywilnem w sądach galicyjskich, Kraków 1844, p. 61; J. Szymanowski, Wykład …, vol. 1, p. 712.
J. Szymanowski, Wykład …, vol. 1, p. 716 et seq. In principle, it was not a requirement for the court to approve a settlement (Cf: Art. 249 of the cpc a contrario).
State Archives in Warsaw: Kancelaria Jana Wincentego Bandtkie pisarza aktowego Królestwa Polskiego [fond: 72/667/0], vol. 9 d. 4b) entry no. 352.
Given the lack of lists in some units and the poor legibility of some entries, it cannot be ruled out that not all judgements have been found.
Krakowskie sądy wyższe, vol. 301: Sentencjonarz sądu apelacyjnego, pp. 4–5, 101 and 165–166, vol. 302: Sentencjonarz sądu apelacyjnego, p. 70, vol. 307: Sentencjonarz sądu apelacyjnego, p. 185; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 27, p. 77 et seq., vol. 52, p. 3 et seq.
Krakowskie sądy wyższe, vol. 301: Sentencjonarz sądu apelacyjnego, p. 100, vol. 302: Sentencjonarz sądu apelacyjnego, pp. 12–13.
Krakowskie sądy wyższe, vol. 302: Sentencjonarz sądu apelacyjnego, pp. 12–13.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 58, p. 161.
Krakowskie sądy wyższe, vol. 307: Sentencjonarz sądu apelacyjnego, pp. 68–69.
Krakowskie sądy wyższe, vol. 303: Sentencjonarz sądu apelacyjnego, pp. 175 et seq.
J. A. Rogron, Code de procédure civile …, vol. 1, p. 56.
For example: Krakowskie sądy wyższe, vol. 241: Wyroki cywilne sądu apelacyjnego (1819), pp. 719. Although the term apelacja was also used at times, for example: TCKrak, vol. 430: Księga II wyroków cywilnych. Wydział III. No. 86–176, case no. 105 [s.l.].
For example: Krakowskie sądy wyższe, vol. 301: Sentencjonarz sądu apelacyjnego (1817), p. 76.
For example: Ibid, p. 101.
For example: Krakowskie sądy wyższe, vol. 306: Sentencjonarz sądu apelacyjnego (1822), pp. 169–170.
For example: Ibid, p. 44.
For example: Krakowskie sądy wyższe, vol. 303: Sentencjonarz sądu apelacyjnego (1819), pp. 180–183.
Krakowskie sądy wyższe, vol. 303: Sentencjonarz sądu apelacyjnego (1819), pp. 326–327.
For example: a judgement of the appellate court overturning a judgement of the Mazovian Voivodeship civil tribunal of first instance due to errors in establishing facts (Cyrkuł iii, vol. 110, fol. 67 et seq.).
State Archives in Płock: Akta stanu cywilnego gminy Płock, powiat płocki [fond: 50/357], vol. 40, 47, 80 and 82.
State Archives in Kielce: Akta Urzędnika Stanu Cywilnego Powiatu Kieleckiego [fond: 21/1143/0], vol. 1–6.
Cyrkuł i.
For example: TCKal, vol. 311, fol. 313–314v. In this case, the appellate court revoked the ruling prescribing a probationary period based on Art. 259 of the cc and ordered the case to be re-examined. On the other hand, in the divorce case of the Biernacki spouses, the Kalisz tribunal dismissed the petition, but this ruling was changed to divorce by the appellate court (State Archives in Łódź: Akta stanu cywilnego Parafii Rzymskokatolickiej w Wieluniu [fond: 39/1719/0], vol. 24a, p. 5).
We can find the relevant remarks in divorce decrees, for example: Cyrkuł i, vol. 57, fol. 70v. The query also turned up notarial deeds concerning this matter: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 9, p. 95 and pp. 243–245; State Archives in Warsaw: Kancelaria Jana Wincentego Bandtkie pisarza aktowego Krolestwa Polskiego [fond: 72/6670], vol. 25 d. 10b), entry no. 978 concerning the Błociszewski spouses.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 33, p. 340.
There was in fact a general tendency, according to which judgements of tribunals of first instance were not challenged often. For example: in the Republic of Kraków, from its establishment until the end of September 1817, the tribunal of first instance adjudicated in 939 civil cases, the appellate court in 135 and the Supreme Court in 12 (Dziennik Rozporządzeń Rządowych Wolnego, Niepodległego i Ściśle Neutralnego Miasta Krakowa i jego Okręgu, no. 80, Zdanie sprawy o stanie kraju, pp. 24–25).
W. Bartel, Ustrój i prawo Wolnego Miasta Krakowa (1815–1846), Kraków 1976, p. 91 et seq. F. K. Fierich, Sąd Trzeciej Instancyi i Najwyższy Sąd Sejmowy na tle całokształtu organizacyi sądownictwa Rzeczypospolitej Krakowskiej (1815–1833), Kraków 1917, a separate reprint from vol. lx Rozpraw histor.-fiłozof. Akademii Umiejętności w Krakowie; A. Korobowicz, Rys dziejów kasacji w polskim systemie sądowoodwoławczym, [in:] Polska lat dziewięcdziesiątych. Przemiany państwa i prawa, eds. L. Antonowicz, H. Groszyk, M. Sawczuk, W. Skrzydło, T. Bojarski, Lublin 1998, vol. 2, p. 397 et seq.; Historia państwa i prawa Polski, vol. 3: Od rozbiorów …, pp. 126–127 and 476 et seq.; A. Korobowicz, Zmiany w ustroju sądownictwa najwyższego w Królestwie Polskim w latach 1815–1876, Czasopismo Prawno-Historyczne 1972, vol. 24, fasc. 2, p. 125 et seq.; H. Maciszewski, Historia Rzeczypospolitej Krakowskiei, Kraków 1851, p. 330 et seq.; M. Makuch, “Organizacja sądownictwa cywilnego w Królestwie Polskim okresu konstytucyjnego (1815–1831)”, Zeszyty Naukowe Instytutu Administracji AJD w Częstochowie 2016, no. 1 (13), pp. 74–76; J. Przygodzki, Rada Najwyższa Tymczasowa Księstwa Warszawskiego 1813–1815. Organizacja i działalność, [book published as part of series:] Acta Universitatis Wratislaviensis 2002, no. 2411, p. 107; W. Sobociński, Historia ustroju i prawa …, pp. 247–248; Ibid, Zapomniane prawo o organizacji sądownictwa w Królestwie Polskim z 1856 r., Czasopismo Prawno-Historyczne 1970, vol. 22, fasc. 1, p. 116; S. Wachholz, Rzeczpospolita Krakowska: okres od 1815 do 1830 r., Warszawa 1957, pp. 263–264.
The same period as in the case of the appellate court.
Dziennik Dekretów Sądu Kasacyjnego Księstwa Warszawskiego, vol. 2, p. 379 et seq. Case based on Landrecht: vol. i, p. 4 et seq. Commentary: W. Sobociński, “Sprawy „warszawskie” przed sądami Księstwa Warszawskiego”, Przegląd Historyczny 1990, no. 3/4, p. 613 et seq. Example of a divorce pronounced based on an unpublished judgement: Cyrkuł iii, vol. 41, fol. 4v.
Separate regulations applied to divorces at joint petition, which had to be pronounced within 20 days (Art. 294 of the cc).
A letter from the prosecutor explaining how the time limits were calculated: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 91, p. 207.
Les actes de l’état civil énonceront l’année, le jour est l’heure ou ils seront reçus, les prénoms, noms, âge, profession et domicile de tous ceux qui y seront dénommés. All the representatives of the studied population had surnames. This was a norm by the early 19th century (A. Gulczyński, Nazwisko dziecka. Ewolucja ukazywania relacji rodzinnoprawnych, Poznań 2010, p. 78). Nevertheless, Jews often used more than one form of names and surnames. This was an added difficulty, which sometimes resulted in various versions being recorded by civil status registrars. Moreover, some of them signed in the Hebrew alphabet.
For example: Cyrkuł i, vol. 16, entry no.10; Cyrkuł ii, vol. 24, fol. 99v.
Les officiers de l’état civil ne pourront rien insérer dans les actes qu’ils recevront, soit par note, soit par énonciation quelconque, que ce qui doit etre déclaré par les comparans.
I have not encountered any remarks on disturbances during the pronouncement hearings, although the atmosphere at this one must have been fairly tense: Cyrkuł iii, vol. 40, fol. 1v.
Cyrkuł iii, vol. 120; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 85, p. 395 and 443, vol. 123, p. 49. The Kraków tribunal frequently authorized also the losing spouse to appear before a civil status registrar (for example: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 27, p. 19), which was not a proper practice (Cf: Art. 258 of cc).
An example of a case in which the pronouncement was declared invalid due to improper summons: TCKal, vol. 7, fol. 132–132v.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 19, p. 18. Perhaps this was also what happened in the case referred to in an annotation from Płock: State Archives in Płock: Akta stanu cywilnego gminy Płock, powiat płocki [fond: 50/357], vol. 82, p. 19v.