The Late Middle Ages: States and Laws (c. 1200-1450)

Legal authority becomes a more pressing issue in the sources for the last few centuries of the Middle Ages, as they evince the elaboration of some political forms that would endure into the modern era.1⁵ Royal governments became much stronger in some areas of Europe, particularly France, England and Spain.

The genesis of the modern state (as these developments have been called in the aggregate) is often thought to have eclipsed lordship, particularly in terms of violence and law. 16 Late medieval governments and lords are often viewed both as opposites and in opposition to one another. Even when it is not a question of looking for a nascent state monopoly on violence, govern­ments are understood as the champions of a new order underpinned by law, with lords as the avatars of an outmoded (‘feudal' or even ‘medieval') violence. While governments were legitimised by law, lordship was asserted and maintained by violence. While governments sought to substitute institu­tional justice for arbitrary force, lords pursued their claims through wars, vendettas or feuds.

In fact, lordship remained a key component of political life in most European regions through the eighteenth century and, in some places, well beyond.^{[478] [479]} Over recent decades, historians have increasingly pointed out that lords did not stand outside of the variety of institutions that constituted government in late medieval polities. They numbered among them. Lordships were governmental entities in their own right. The fiscal and judicial powers that lords wielded were ‘public' in the same sense as those exercised by royal or communal governments. If law legitimised - but also limited - the reach of kings and cities, seigneurial prerogatives and duties were also increasingly elaborated in law. All was not peaceable in medieval kingdoms (or city-states or prince-bishoprics). Lords chafed at the jurisdic­tional and administrative ambitions of other powers, including those of kings and communes, sometimes engendering violent opposition. Still, lords had the same responsibilities for maintaining order and dispensing justice that confronted other, more modern-seeming holders of power. The vast major­ity of their interactions were characterised by cooperation, not conflict.

This overall scholarly consensus nevertheless belies important regional differences. These differences not only arise from the accidental vagaries of regional historiography, but also reflect the very real differences in national trajectories whose roots are found in the late Middle Ages. Looking at the way that seigneurial violence fitted into - or has been seen to fit into - the development of state and society in Germany, France and England shows a general congruence in the relationship between late medieval lordship and violence, and there were similar developments in northern Italy.

German Lands

In scholarship on German lands, seigneurial feuds (Fehden) have long been part of the conversation, owing to Germany's particular political circumstances, both medieval and modern. A federal state in which much power is devolved regionally and locally, modern Germany is not wholly dissimilar to medieval Germany's patchwork landscape of competing authorities made up of territor­ial lords and princes, independent cities, and prince-bishoprics, over which the king had quite limited authority relative to his royal peers in France or England. The ‘big question' about the late medieval German polity is thus not how it developed into a modern state, but why it developed differently from western European polities whose trajectories were much more ‘statist'.¹⁹ Seigneurial feud plays a key explanatory role in efforts to answer this question. Its wide­spread existence in late medieval Germany speaks to the non-centralisation of the polity, but the process of feuding underpinned, as well as reflected, a socio­political order in which power was determined by social status and honour rather than institutional law and official judgement.

As was seminally argued by Otto Brunner in a book first published in 1939 and translated into English (from a later edition) in 1984, the practice of feud was integral to the practice of lordship because lords had a right and a duty to act with violence in the protection of their lands, subjects and possessions.²⁰ These rights and obligations were understood in terms of honour, a personal quality as

stato degli studi e sulle prospettive di ricerca', in Andrea Zorzi (ed.), Conflitfi, paci e vendette nell'Italia comunale (Florence: Firenze University Press, 2009), pp.

19 Timothy Reuter, ‘The Medieval German Sonderweg"? The Empire and its Rulers in the High Middle Ages', in Janet L. Nelson (ed.), Medieval Polities and Modern Mentalities (Cambridge: Cambridge University Press, 2006), pp. 388-412; Len Scales, The Shapingof German Identity: Authority and Crisis, 1245-1414 (Cambridge: Cambridge University Press, 2012).

20 Otto Brunner, Land und Herrschaft: Grundfragen der territorialen Verfassungsgeschichte Südostdeutschlands im Mittelalter (Baden bei Wien: R. M. Rohrer, 1939); trans. (of the 4th German edn) by Howard Kaminsky and James Van Horn Melton, Land and Lordship: Structures of Governance in Medieval Austria (Philadelphia: University of Pennsylvania Press, 1992). much as a legal status. The conservation of honour was an existential imperative for lordship. Feud might therefore be expressed as vengeance, but it was political in its implications, and its practice was highly orchestrated: it began with a formal challenge (Absage or diffidatw) issued to the opponent and entailed particular forms of violence, particularly plunder and arson (Raub und Brand), which was however at least theoretically restricted to particular times, spaces and targets. Kings primarily intervened in seigneurial feuds as mediators, not justiciars. They rarely tried to outlaw feud altogether, and most of the imperial Landfrieden (territorial peace proclamations) were intended to regulate feuds rather than suppress them. What determined the legitimacy of the violence was not sovereignty, but the rightness of the cause. This was not contrary to social order; it was social order.

Brunner's rehabilitation of seigneurial feuds re-envisioned ‘peace' as the maintenance of right, potentially through violent means, rather than simply the absence of (non-state) violence. At first blush, he thus privileged ‘rules' over ‘institutions', but in fact, his argument does rest on the possession of legitimate authority, just by lords rather than kings or great princes.

The explanatory force of Brunner's argument runs into some trouble when we look further down the social scale. It was axiomatic for Brunner that peasants, like women, did not possess the right to feud.^[481] Peasants' role in feud was therefore confined to that of victims. Their bodies and goods were targeted as a means of waging economic warfare, violence that effectively reproduced lords' socio-political domination of peasants.^[482] Nevertheless, as Brunner did recognise, peasants themselves frequently engaged in feuds; Christine Reinle has counted nearly 260 peasant challenges to feud over six decades in late medieval Bavaria.^[483] The vast majority of these challenges did not lead to actual violence, but when they did, it was nearly identical to that of aristocratic feuds, including theft, kidnapping and arson. Brunner thought that peasant feuds were exclusively motivated by “blood vengeance', retribution for a killing, rather than the primarily political concerns that drove what he called the ‘knightly feud'. Reinle's research suggests otherwise. As in aristocratic feuding, peasant feud served as a means of forcing the opponent to negotiate claims contrary to the feuder's perceived rights, usually in property. Some of these feuds were directed against other peasants, but many targeted lay or ecclesias­tical lords.

France

In France, seigneurial violence has also been understood as a major detriment to peasants' lives and livelihoods. Particularly in the decades after the Black Death, when depopulation shrunk the tax base, lords might make recourse to outright banditry in order to extract the kind of surplus required by seigneur­ial lifestyles.^[484] Far more than a danger to people below, though, seigneurial violence in France has mainly featured in scholarship as an impediment to the power above. ‘Feud' or guerre privee (private war) has been primarily viewed as a stumbling block to the development of a monarchy eventually destined for absolute power, foreshadowing the powerful role of the etat in modern France.

The main reference sources have been a series of promulgations issued by the kings of France, beginning with Saint Louis IX (r. 1226-70) up to at least Jean II (r. 1350-64), that limited or prohibited wars (guerrae) between their subjects, including those of the lords.^[485] Some of these promulgations expli­citly included people ‘of whatever status or condition', meaning lords and nobles, and drew a stark contrast between pursuing one's conflicts illicitly through war and pursuing them legitimately through institutional justice. In 1304, King Philip IV, for instance, declared that kings were ‘divinely depu­tised' for the administration of justice and consequently prohibited his sub­jects from undertaking wars or vengeance on their own account.^[486] That lords nevertheless continued to go to war against one another - in southern France alone over sixty such wars took place between 1250 and 1400 - has been considered evidence of seigneurial recalcitrance to growing royal power, an unwillingness to give up ‘medieval' prerogatives, and even a usurpation of royal rights.

Certainly, such wars disturbed peace and quiet. A preferred method of waging them was to engage in chevauchees (literally, ‘rides') through the adversary's territory, kidnapping (and sometimes raping) their dependent subjects, pillaging their goods, destroying their crops, burning their houses, and so forth.^[487] (In this their behaviour differed not at all from that of royal troops at that time.)^[488] Like the Fehden of the empire, these wars were usually about power. The language of hatred and vengeance might be employed to describe the conflict, but invariably the underlying casus belli were issues of property and power, like taxation, jurisdiction, inheritance or marriage, and territorial/castle possession. This political - one might even say legal - basis of conflict meant that women might have a principal role to play in the decision to wage war as the hereditary holder of (or claimant to) a lordship. We see this in the famous case of the two Jeannes who fought for the Duchy of Brittany in the mid fourteenth century, but there were many other examples, from Countess Marguerite de Comminges and Lady Eleanor of Vendome down to a humble castellan's daughter who hired mercenaries to occupy a few chateaux near Montpellier in the 1360s.^[489]

Royal courts did criminally prosecute some seigneurial warmakers, some­times punishing them with fines, sometimes even quoting from royal pro­mulgations against warfare, but most of the interactions between royal justice and provincial lords allowed a great deal of scope for seigneurial violence, even under the law. The vast majority of royal acts on warfare were not outright prohibitions, rather most of them actually allowed lords or nobles to go to war in explicit terms, only prohibiting it when the king himself was at war, or limiting the timing or the extent of the violence. In 1339, for example, King Philip VI recognised the right of Gascon nobles to wage war, provided that a formal challenge (diffidatio) had been made and that such wars cease when the king himself went to war.^[490] Moreover, judicial prosecutions of French warmakers rarely made use of royal promulgations against war, but rather rested on far more diffuse grounds such as the carriage of illicit arms or the infringement of a special royal privilege called the safeguard. In some cases, the violence was actually ruled licit because it had been employed in enforcing seigneurial rights, like justice or taxation, or in the correction of a vassal's disobedience. In these cases, a seigneurial right to violence - even on a large scale - might be judicially endorsed. Even when a war was found illicit, the judgement was often treated as a starting point for further negotiations, with the guilty party soliciting a letter of pardon (lettres de remission) from the crown and coming to an extra-judicial settlement with his (occasionally her) adversary. Such practices should be understood as mutually beneficial, rather than as reflecting ‘incomplete' royal development. They represented significant new royal involvement in violent seigneurial disputes, but in ways that were often useful to lords and in which they were often fully complicit.

England

The place of seigneurial violence within English political and legal frame­works seems likely to have been very different. A small kingdom with an elaborate legal tradition and a hierarchical court system, there would appar­ently be fewer opportunities for seigneurial violence than in the large, politically and judicially fragmented polities of France and the empire. The socio-political constitution of aristocratic England, divided into a small group of great nobles and a much larger mass of lesser elites (knights, eventually gentry), may also have discouraged large-scale violence, so long as there was stability at the top. To some extent these assumptions are true. Certainly, before the mid fourteenth century, there is relatively little evidence of large­scale violence by magnates great or small against one another, and by and large this was a royal governmental achievement.^[491] The English king and his agents possessed an administrative framework of a uniformity and

Seigneurial Violence in Medieval Europe comprehensiveness unparalleled elsewhere in Europe, and royal control of the realm's castles was extensive. But surveillance and suppression were only part of the equation. The creation of simple legal procedures like novel disseisin and mort d'ancestor for dealing with land disputes enabled speedy and decisive conclusions to one of the most common sources of violent conflict between the powerful. Such opportunities for dispute, so plentiful on the continent, were also limited by England's relatively strict rules of inheri­tance and systematic royal control of marriages and wardships.

There is, however, a major exception to this pacific picture: baronial rebellions against the king. Major rebellions took place in 1088,1173-4,1215-17 and 1258-65. To this list, we might also add the years of ‘anarchy' during the dynastic war between Stephen and Matilda (1135-54) in which magnates played a major role and also pursued their own conflicts. Baronial violence on a large scale in England thus had a very close relationship with royal politics and the government of the realm. The kingdom's great lords expected to be involved in running the kingdom, and they had the castles, wealth and men to assert their demands. In the twelfth century, these were primarily dynastic: who ruled the realm. But from the thirteenth century they were primarily legal and administrative: how it was ruled. The 1215-17 rebellion produced and defended Magna Carta, while the Provisions of Oxford were central to that of 1258-65. There were many factors that motivated baronial rebellion, including some no doubt venal or vicious, but a major impetus was the reformation of government and the restraint of arbitrary power.

The developments of the fourteenth and fifteenth century encouraged greater scope for seigneurial violence, especially at the local level where conflicts between lords great and small seem to have become more frequent. As in France, the Hundred Years War militarised the population and put the crown under intense financial and political pressures. The structure of English lordship itself changed in the later Middle Ages. Rather than promis­ing fidelity in exchange for land, men increasingly promised their service in exchange for payment (maintenance). They wore their lord's clothes and colours (liveries) and did his bidding, including breaking into houses, setting fires and seizing the property of his enemies. Local justice fell increasingly into the hands of the local gentry, whose own behaviour was thus less closely subject to royal control. But if this picture of ‘bastard feudalism' looks like disorder and corruption to modern sensibilities, again we must think about

Practice: Essays in Medieval Studies in Honor of Stephen D. White (Farnham: Ashgate, 2010), pp. 41-53.

how these lords and gentlemen (and some gentlewomen)^[492] fit into the political community of the realm. They constituted a political elite with a responsibility as well as a right to engage in the power brokerage that lay behind government. Their interests might be personally held, but they were enmeshed with their public roles. Keeping peace and doing violence were often two sides of the same coin. What violence they committed on their own behalf - usually in connection with a lawsuit over land - was carefully targeted and usually very limited, intended to move the dispute towards settlement without offending the sensibilities of the other elites whose involvement was key to a favourable conclusion.^[493]