Адвокаты и фогты в Средневековье: Функции и эволюция института

Medieval office holderthe medieval function (under different names redirecting here)

During the Middle Ages, an advocatus (sometimes given as modern English: advocate; German: Vogt; French: avoué) was an office holder who was legally delegated to perform some of the secular responsibilities of a major feudal lord, or for an institution such as an abbey. Many such positions developed, especially in the Holy Roman Empire. Typically, these evolved to include responsibility for aspects of the daily management of agricultural lands, villages and cities. In some regions, advocates were governors of large provinces, sometimes distinguished by terms such as Landvogt (in German). While the term was eventually used to refer to many types of governorship and advocacy, one of the earliest and most important types of advocatus was the church advocate (advocatus ecclesiae). These were originally lay lords, who not only helped defend religious institutions in the secular world, but were also responsible for exercising lordly responsibilities within the church's lands, such as the handling of legal cases which might require the use of a death penalty. The positions of these office holders eventually came to be seen as inheritable titles themselves, with their own feudal privileges connected to them. The advocatus as an officer of a court of law first appeared in the 12th and 13th centuries, concomitant with the rediscovery of Roman law.

The terms used in various European languages derive from a general Latin term for any person called upon (ad vocatus) to stand for another. Apart from the English terms advocate and advowee, German terms are sometimes mentioned in English accounts of the Holy Roman Empire, and these include Vogt (, from Old High German, also Voigt or Fauth; plural Vögte). The territory or area of responsibility of a Vogt is called a Vogtei (from [ad]vocatia). Related terms include (land ) voogd; foged; fogd; fogde; wójt; ; ; and voit.

These advocates were specially bound to represent their clients before the secular courts. They exercised civil jurisdiction in the domain of the church or monastery, and were bound to protect the church with arms in the event of actual assault. Finally, it was their duty to lead the men at arms in the name of the church or monastery, and to command them in time of war. In return for these services the advocate received certain definite revenues from the possessions of the church, in the form of supplies or services, which he could demand, or in the form of a lien on church property. Such advocates are to be found even in Roman times; a Synod of Carthage decreed, in 401, that the emperor should be requested to provide, in conjunction with the bishops, defensores for the churches. There is evidence, moreover, for such defensores ecclesiæ in Italy, at the close of the fifth century, but Pope Gregory I confined the office to members of the clergy. It was the duty of these defensores to protect the poor, and to defend the rights and possessions of the church. In the Frankish Kingdom, under the Merovingians, these lay representatives of the churches appear as agentes, defensores and advocati. The concept of the Vogt was related to the Old German idea of the Munt, or guardian, but also included some ideas of physical defence and legal representation (whence the connection with advocatus or "advocate"). Under the Carolingians, the duties of the church advocate were enlarged and defined according to the principles of government which prevailed in the reign of Charlemagne; henceforward the advocatus ecclesiæ in the medieval sense. A Capitulary of about 790 ordained that the higher clergy, "for the sake of the church's honour, and the respect due to the priesthood" (pro ecclesiastico honore, et pro sacerdotum reverentia) should have advocates. Charlemagne, who obliged bishops, abbots and abbesses to maintain advocati, commanded to exercise great care in the choice of persons to fill the office; they must be judicious men, familiar with the law, and owning property in the—then still administrative—countship (Grafschaft). The churches, monasteries and canonries, as such, alike received advocates, who by degrees assumed the position above defined. Under the Carolingians it was made obligatory for bishops, abbots and abbesses to appoint such officials in every county where they held property. The office was not at first hereditary nor even for life, the advocatus being chosen, either by the abbot alone, or by the abbot and bishop concurrently with the count. In the post Carolingian period it developed into a hereditary office, and was held by powerful nobles, who constantly endeavoured to enlarge their rights in connection with the church or the monastery. Conciliar decrees were passed as early as the ninth century to protect ecclesiastical institutions against the excessive claims of their advocates, who indeed became in many ways a burden to their ecclesiastical clients. They dealt with the possessions entrusted to them as with their own property, plundered the church estate, appropriated tithes and other revenues, and oppressed in many ways those whom they were appointed to protect. The office, since it offered many advantages, was eagerly sought after. The excessive claims of the advocates gave rise to disputes between them and the churches or monasteries. The bishops and abbots, who found their rights curtailed, appealed to the Holy Roman Emperor and to the Pope for protection. In the twelfth century warnings issued from Rome, restraining the high handed actions of the advocates under pain of severe ecclesiastical penalties, which still did not put an end to all the abuses that prevailed. On occasions, emperors and princes exercised the office of advocate, in which case they appointed deputy advocates (subadvocati) to represent them. From the time of Charlemagne, who had such officials appointed in ecclesiastical territories not directly under the control of his counts, the Vogt was a state functionary representing ecclesiastical dignitaries (such as bishops and abbots) or institutions in secular matters, and particularly before secular courts. Such representatives had been assigned to the church since late antiquity, as it was not to act for itself in worldly affairs. Therefore, in areas such as the territories of abbeys and bishoprics, which by virtue of their ecclesiastical status were free (or immune) from the secular government of the local count (Graf, in origin an administrative official in charge of a territory and reporting to the emperor), the Vogt fulfilled the function of a protective lordship, generally commanding the military contingents of such areas (Schirmvogtei). Beyond that, he administered the high justice instead of the count from the Vogt court ([[Landgericht (medieval), Vogtgericht or Blutgericht). In private and family monasteries (see proprietary church), the proprietor himself often also held the office of Vogt, frequently retaining it after reform of the proprietorship (see also lay abbot). The three way struggle for control of the Vogtei of the more important abbacies, played out among the central monarchy, the Church and the territorial nobility, was well established as a prerogative of the nobility; the Hirsau formulary (1075) confirmed count Adalbert of Calw as hereditary advocate of the Abbey, an agreement so widely copied elsewhere in Germany that from the tenth century the office developed into an hereditary possession of the higher nobility, who frequently exploited it as a way of extending their power and territories, and in some cases took for themselves the estates and assets of the church bodies for whose protection they were supposedly responsible. In Austria, the teaching of the Church that, according to canon law individuals were prohibited from exercising authority over Church property, was only with reluctance accepted by the nobles. The rights of advocacy were bought back by the thirteenth and fourteenth century abbeys in alliance with the Babenberg and early Habsburg dukes; the abolition of the Vogtei (Entvogtung) thereby exchanged local secular jurisdiction for the protective overlordship of the duke of Austria, sometimes by forging charters that the duke confirmed.

In Germany, the title of Vogt (advocatus or "advocate") was given not only to the advocati of churches and abbeys but also, from early in the Middle Ages, to officials appointed by the Holy Roman Emperor to administer lands directly under his dominion, as opposed to the comital domains, owned by counts who had become hereditary princes of the Empire. The office or territory of a Vogt was a Vogtei. Land administered by a Vogt could also be known as a Vogtland (terra advocatorum), a name still used to refer to a region, the Vogtland, that adjoins the principalities of Reuss and adjacent portions of Saxony, Prussia and Bavaria. An imperial advocateship tended to become hereditary. Sometimes the emperor himself assumed the title of Vogt in application to parts of his eminent domain.

In England, the word advocatus was never used to denote a hereditary representative of an abbot; but in some of the larger abbeys there were hereditary stewards whose functions and privileges were not dissimilar to those of the continental advocati. Instead, the word advocatus, or more commonly avowee, was in constant use in England to denote the patron of an ecclesiastical benefice, whose sole right of any importance was a hereditary one of presenting a parson to the bishop for institution. In this way the hereditary right of presentation to a benefice came to be called in English an advowson (advocatio).

The title of Landvogt appears in the Old Swiss Confederacy in 1415. A Landvogt ruled a Landvogtei, either representing a sovereign canton, or acting on behalf of the Confederacy, or a subset thereof, administering a condominium (Gemeine Herrschaft) shared between several cantons. In the case of condominiums, the cantons took turns in appointing a Landvogt for a period of two years. In exceptional cases, the population of the Landvogtei was allowed to elect their own Landvogt. This concerned Oberhasli in particular, which was nominally a subject territory of Bern, but enjoyed a special status as a military ally. The office of Landvogt was abolished in 1798, with the foundation of the Helvetic Republic.

Although the title of Duke of Burgundy was extinguished by the French king after the annexation of its ancestral lands in 1477, the Habsburg kings of Spain and archdukes of Austria continued to use the title to refer to their realms in the Netherlands. The monarchs reigning in Madrid and Vienna controlled these through governors known variously as landvoogd or gouverneur generaal.

The status of protective lordship, however, in relation to ecclesiastical estates as held, and notoriously abused, by the nobility in Germany throughout the Middle Ages, is without close parallel. There is no single equivalent in English history. The office of reeve was much the same at a village or peasant level, and in other contexts the roles of sheriff, bailiff, seneschal and castellan of course included similar elements. In France, the office of vidame, the temporal administrator for certain bishoprics, showed some connection. The most frequent translations in that connection are either advocate or lord protector.

In medieval Poland, a wójt was a hereditary head of a town (under the overlordship of the town's owner – the king, church, or noble). In modern Poland, a wójt is the elected head of a rural gmina, whereas heads of urban gminas are called burmistrz (burgomaster), or president.

In Danish, the word foged carries different connotations, all pertaining to guarding or keeping watch over something. In modern Danish law, the fogedret (vogt court) administers the forcible enforcement and execution of judgments or other valid legal claims.

The local bailiff (distrainer) is called kihlakunnanvouti, where kihlakunta (hundred) is a local judicial district. Their duty is to enforce the financial judgements of the local courts. In practice, the vouti leads a team of assistant distrainers who process most distrainments/garnishments.

In modern Dutch, the word voogd is the primary word for the concept of legal guardian. In historic texts, Landvoogd or Landvoogdes in the feminine form is used, particularly as the main title of Margaret of Parma.