Towards a monopoly of violence: the royal courts of law

At about the same time as King Charles VII chased the English out of France, on 17 April 1453, Georg von Puchheim declared a feud against the Holy Roman Emperor Frederick III.⁴⁴ Georg had for twelve years served as a councillor in the regency government of Austria, fought in many wars as a mercenary captain, had spent large sums on fortifications and suffered much harm from the emperor’s enemies.

In most countries, feuds were lawful and acceptable means for nobles to achieve their rights. They were not banned in France until the first half of the fourteenth century and then as a temporary measure to unite the country against attacks from England during the Hundred Years War. England forms an exception in this respect, for here a system of public justice and strict rules against feuds and revenge developed from the twelfth century onwards, which reduced the feuds, although it did not eliminate them.⁴⁵ The same applies to Norway, where feuds were banned from the thirteenth century, whereas they were allowed in Denmark until 1683. Nevertheless, it was no longer acceptable in most countries to use such means against the king in the fifteenth century.

A little more than hundred years earlier, in 1322, a number of English nobles, led by Thomas, Earl of Lancaster, rebelled against the very unpopular King Edward II.⁴⁷ The rebellion was quickly put down and the leaders taken captive. Based on earlier precedent, they probably expected to be heavily fined, but the punishment was far worse. They were executed by being hanged, drawn and quartered and having all their estates confiscated. This form of execution was painful as well as humiliating. The victim was first hanged, then cut down before he died, disem­bowelled and finally cut into four parts. Then his body was burned and the ashes spread. Thus, the punishment symbolized the utter destruction of the king’s ene­mies. Only Thomas of Lancaster received the privilege of death by beheading due to his high rank.⁴⁸ According to recent scholarship on this subject, the rules underlying the new treason laws were not new: rebels and assassins had always

been at the king’s mercy.⁴⁹ However, before this period, leniency had been prac­tised, at least towards noble criminals, according to the rules of chivalry that had developed in the post-Carolingian period.

Whereas the Carolingians normally punished rebellious nobles by execution or blinding,⁵⁰ this changed in the post-Carolingian period, under the Ottonians in Germany from 919 onwards (after the interlude with Conrad I, 911—19) and the Capetians in France from 987.⁵¹ Aristocratic prisoners were normally released after payment of a ransom, while public humiliation (deditio) replaced execution as the punishment for the kings’ enemies.

The new practice was clearly inspired by the Roman Laws of Treason, the Lex lulia maiestatis and the Lex quisquis, which had both a theoretical and a practical influence on the law in England, France and other countries. The direct initiative to applying these laws most probably came from the professional law­yers in the king’s service. Their introduction led to strong reactions from the aristocracy and the practice of them may have been one of the causes of the internal conflicts and the depositions of Edward II and Richard II.⁵³ The Law of Treason was passed by Parliament in 1352, which was a compromise between the king and the aristocracy.⁵⁴ The Wars of the Roses in England, fought intermittently between 1455 and 1485, illustrate the rules applied to internal conflicts. In contrast to the war in France, there was no wasting of the land and ordinary soldiers were normally released when taken captive. By contrast, captive aristocratic leaders were executed, instead of being released against ransom. They were traitors to the king their captors regarded as the lawful ruler of the coun- try.⁵⁵ The Law of Treason was also introduced in France at about the same time as in England but was practised more leniently because the king could not afford to alienate influential nobles.⁵⁶ The stricter practice of the Law of Treason thus has a counterpart in the rules of chivalry towards external enemies who owed loyalty to another king, as mentioned in Chapter 1.

The introduction of the Law of Treason and the stricter practice of it form one aspect of the increasing involvement of the king in the administration of justice. While this was in principle delegated from the king under Charlemagne, the decline of the monarchy in the following period gradually divided the power in this and other fields between a number of lords of various rank. Cases between nobles were normally solved by arbitration, often preceded by or combined with open feud, whereas those between commoners might be adjudicated by their superiors. Early medieval justice, dealing with matters that could not be solved by arbitration, was mainly formal. First, the system was based on formal rules and procedures and relied on the testimony of formally appointed witnesses or oath­helpers. Laws mainly dealt with procedure; they did not lay down rules for what was right or wrong. There was no distinction between fact and law. The process was accusatorial; it was a conflict between two parties, where the defendant had to refute the claim of the plaintiff, not vice versa, as in modern law. The means of such a refutation was normally compurgation; the defendant had to swear either alone or aided by a number of co-jurors, the more jurors, the more serious the accusation. In some particularly serious cases, he or she might also have to undergo an ordeal, by carrying or walking on hot iron or by fishing an object out of a boiling kettle. In addition, trial by battle was used, particularly in conflicts between prominent men. In principle, all cases were between private parties. There was no distinction between civil and public law. Thus, a murder case would be dealt with in the same way as a dispute over property and would be settled by the killer or his kinsmen paying compensation to an injured party. There was also a thin line between legal and extra-legal disputes. Powerful men were not necessarily bound to bring their cases before the court, they might prefer to let arms decide.

The changes that took place from the twelfth century onwards were caused by three factors: (1) the reception of Roman Law; (2) the development of canon law; and (3) the increasing power of the central government of the kingdoms and the Church.

The Romans had a long tradition of law going back to early republican times, which continued in the late republic and during the empire. In addition, the emperors issued edicts that were legally binding. In the mid-sixth century, the Emperor Justinian decided to create a law code based on all previous legal material. The result was a collection in three parts, the Institutes, the Codex and the Digest, which was officially promulgated in 534. A fourth part, the Novellae, consisting of Justinian’s own legislation, was added later. The Institutes were intended as an introduction for law students, containing the most important laws and principles. The Codex contained the laws of the emperor, while the Digest contained excerpts from leading jurists. This was by far the largest part and the most important one for the later legal development. The whole collection was given the force of law by Justinian. As the king of Germany was also Roman Emperor and other kings also in some respects claimed to be Justinian’s successors, Justinian’s Laws came in var­ious ways to influence European legislation and legal practice in the Middle Ages and the early modern period.

Apart from its concrete rules, Roman law was important for the general devel­opment of legal method. Most of the texts represented in the Digest were not general or philosophical treatises but decisions of concrete issues. However, the numerous comments in schools and universities resulted in more explicit rules, while at the same time, they laid the foundation for a new juridical method. The clearest expression of this is Gratian’s Decretum, a systematic collection of canon law from the mid-twelfth century. Whereas similar collections earlier had mostly con­sisted of excerpts from various authorities in a chronological sequence, Gratian begins with posing a problem and then adduces statements by various authorities which had dealt with it previously and which seemingly had come to different conclusions.

Both Roman and canon law in various ways served as sources of inspiration for royal legislation. The first example of this is the Emperor Frederick II’s Liber Augustalis or Constitutions of Melfi from 1231 for the Kingdom of Sicily. This was followed by Las Siete Partidas (The Seven Parts), issued by King Alfonso X of Castile (c. 1265) and the Code of the Realm for Norway (1274—76), issued by King Magnus VI, nick-named the Law-mender. Sweden had its Code of the Realm in 1350, while Denmark only got a law for the whole country in 1683. By contrast, neither England nor France had a code of law in the Middle Ages; France only got it in 1805 and England still has not got one. Instead, the English and French kings issued statutes regarding concrete issues. Such statutes, together with the precedent from previous legal decisions formed the English Common Law. The reign of Edward I (1272—1307) was particularly impor­tant in this respect. More laws were issued during the first thirteen years of his reign than in any period before the reign of William IV (1830—37).⁵⁷ Edward is also often referred to as the English Justinian. By contrast, the weakening of the imperial power in Germany prevented the emergence of a common law for this country; instead, Roman Law increasingly formed the basis for legislation and jurisdiction.

The practical result of this development was the introduction of royal courts of law and legal experts educated at the universities, which also changed legal proce­dure. The crucial period in this in England was the reign of Henry II (1154—89). He developed the practice of writs, known already in the Anglo-Saxon period. A writ was a short, formulaic message from the king to a local official ordering him to deal with a particular legal case according to a standard procedure. If not, the king himself would settle the case. Originally, English tenants — who formed the majority of the population — were to be judged or have their conflicts adjudicated in manorial courts. Some of them also had the possibility of appealing to the king. Eventually, the king’s courts largely replaced local ones. In addition to the various courts of law, the king and his council as well as Parliament served as courts of appeal. A considerable part of the business of Parliament was to deal with such matters. Finally, special rules applied for cases involving the king or the royal government: impeachment and attainder, in which the amount of evidence needed for a conviction was less than in normal cases and the defendant’s possibility to refute the accusations was reduced or abolished. Impeachment was used by the royal government against Members of Parliament or other subjects, whereas attainder was used by Parliament against the king’s councillors.

An important step towards a new administration of justice was the abolition of the ordeal by the decree of the Fourth Lateran Council in 1215 which forbade clerics to consecrate the iron or other instruments used to perform the ritual. As soon as this was respected, ordeals were impossible to carry out and they gradually disappeared. Intellectually, the ban against ordeals might seem to be the result of more secular thinking, but a more important reason for its disappearance was probably the idea that it is not lawful for humans to try to force God to answer their questions.⁵⁸

The abolition of ordeals created a gap, in England as well as in other countries. The English solution to this was trial by jury (from Latin jurati — who have sworn), consisting of local men. The background for this was the common practice in England as well as in other countries to examine local people as witnesses. Gradu­ally, this changed into the modern jury. There was — and still is — a distinction between the grand or presenting jury, which was necessary to start a process, and the trial jury, which gave the verdict. The grand jury has its counterpart in the summons of local people in canon law who were asked if they knew of a crime and whose affirmation or at least partial affirmation was necessary for a process to begin. The trial jury was originally supposed to base its verdict on previous knowledge of what had happened, but gradually developed into a court to which witnesses were presented and which gave the final verdict, which had to be unanimous. Thus, no confession by the accused was necessary for conviction. He or she had been found guilty by equals and had to suffer the appropriate punish­ment. Greater trust was thus placed in a committee of ordinary people, equal or approximately equal in status to the accused, in England than in a professional magistrate on the Continent.

A similar practice developed in Scandinavia, the Low Countries and parts of Germany. In France and southern Europe, however, the solution was a stronger influence of professionals in jurisdiction. Parallel to this, a clearer distinction between civil and criminal justice began to emerge. In the twelfth and thirteenth centuries, the Church introduced public justice, based on the idea that certain acts were offences against God, society, and the social order and had to be punished. It was not only damage done to an individual or kindred that had to be repaired or compensated. Thus, a concept of crime evolved and, beyond that, the idea of subjective guilt, which meant that not only the act itself but its background and the criminal’s intentions had to be taken into account. Crimes committed as the result of weakness, without knowledge of the seriousness of the act or under duress, should be punished mildly, whereas those done out of haughtiness or malice should be punished severely. This is not to suggest that the distinction between intentional and unintentional acts was unknown in the previous period, but such a distinction was more difficult to apply when there was no judge above the parties.

These changes in the understanding of crime and legal evidence necessitated changes in the administration of justice. Skill and education were needed both to evaluate the evidence presented in court when it was no longer formal, and to mete out punishment in accordance with motives and circumstances in criminal cases. A court of law also needed authority to intervene against powerful men in local society. Consequently, the administration of justice was professionalized. This applied above all to the ecclesiastical courts of law, where the bishop was the highest judge. He often had a university education in law and in addition often delegated his judicial powers to officers with a similar education, to his deputy (Latin officialis) or to provosts or archdeacons. However, ecclesiastical courts con­tinued to use local people, mostly as witnesses but to some extent also as judges.

Even after the thirteenth century, large parts of France were governed by local princes and lords who also controlled the courts, although appeals to the king and the Parliament in Paris eventually became a possibility.⁵⁹ French jurisdiction was based on a combination of local custom and learned law. Thus, institutions similar to the jury were not unknown in France. Eventually, however, increasing influ­ence from canon law reduced the role of such institutions and replaced them with learned specialists. French and continental law in general also developed a clear distinction between civil cases, where two parties disagreed about an issue, and criminal ones, which were prosecuted on behalf of the Church or society. Con­cerning the latter, the inquisitional process was developed in this twelfth and thir­teenth centuries, particularly in order to trace and condemn heretics.

Although a clearer distinction between criminal and civil jurisdiction did develop from the twelfth century onwards, systematic persecution of crime was not common in the Middle Ages; nor was there any police in the modern sense. In many places, even the adjudication of murder necessitated an individual plaintiff. Thus, in England public prosecution was instituted as late as in 1487 through the Star Chamber Act. Before that, legal process always had to be initiated by indivi­dual complaint, even if public peace had been broken.⁶⁰ For a long time, eccle­siastical courts were also reluctant to open a case unless there was a complaint by an individual. Originally, canon law also had very strict demands of evidence to declare a verdict of guilty. Either the accused had to confess or two eye witnesses, independent of each other, were needed.

To fight heresy, the Church established a separate court of law, the Inquisition, which developed an entirely new form of process. Here a professional magistrate, educated in law, both led the examination and passed the sentence. He examined the accused as well as the witnesses separately to arrive at the truth. In order to guarantee that those who were examined, the accused as well as the witnesses, should tell the truth exactly as they knew it, neither of them was informed about the content of the accusation. The only concession to the accused in this respect was the permission to name enemies, so that the judge himself might eliminate their testimony. The judge reached his verdict on the basis of this evidence, but his discretion was nevertheless insufficient for full conviction. For this, a confession was necessary. If the judge found that there was strong evidence against the accused, he was allowed to use torture to force a confession. The inquisitional process was gradually taken over by a number of secular courts. It was introduced in the Holy Roman Empire by Charles V in 1532, in the Netherlands by Philip II in 1570 and in France by Francis I in 1539 and further developed by Louis XIV in 1670.61

The great transition to public justice took place in the sixteenth century. Now governments actively sought to trace and punish crime and made use of the inquisitional process for this purpose. At the same time, punishments generally became stricter. Punishments were intended to prevent crime; public executions, often with extreme cruelty, aimed at warning others against committing the same crime. Louis XlV’s edict of 1670 lists a whole series of death penalties whose severity corresponds strictly to the seriousness of the crime committed, from hanging or decapitation to being burnt alive, broken on the wheel or tied to horses and torn apart. To each of these, separate punishments might be added before the execution, such as having the hand or tongue pierced or cut off. The execution of Damiens, who had attacked Louis XV with a knife, shows the maximum severity: he was burnt with sulphur and pierced by red-hot tongs on his way to the place of execution, where he was tied to horses and torn apart.⁶² Of course, an attack on the Royal Majesty was the worst crime that could be imagined at the time. At the same time, there was some room for mercy in practice. The law was not always applied in its full severity; the judge might use his discretion and mete out a milder punishment if he found some attenuating circumstances or detected strong repen­tance in the accused. Thus, there were around thirty capital offences in England around 1640 which had increased to at least 200 around 1790, but during the same period, there was also a significant decline in the number of people who were executed.⁶³ At the Chatelet in Paris, 9—10 per cent of those convicted were sen­tenced to death between 1755 and 1785, but as many as 15 per cent in Flanders in 1721—30, which was reduced to 5 per cent in 1781—90.

The crimes punished most severely in the sixteenth and seventeenth centuries were heresy, witchcraft and sexual crimes, in addition to crimes typically com­mitted by people outside established society, notably armed robbery. In addition, vagrants and the homeless were subject to suspicion and easily arrested. By contrast, violent crime as the result of conflicts between ordinary, respectable people was punished more leniently and more easily pardoned.⁶⁴ Women were also mostly punished less severely than men. They also were more rarely convicted; only around 20 per cent of the criminals were women.⁶⁵ Paradoxically, from a modern point of view, the increased severity was combined with care for the criminal who should be made to atone for his sin and thus avoid eternal damnation.⁶⁶ The logic is expressed in numerous sources, for instance, in The King's Mirror, composed in Norway in the thirteenth century. Here the Father, who is the author’s voice in this work, explains to his son, who asks the questions, that the death penalty is actually a benefit for the condemned because God does not punish the same crime twice; thus, suffering in this world protects against eternal damnation.⁶⁷ However, the criminal must also be made to repent. Consequently, it was important for him to confess his crime. This may form part of the explanation for the use of torture, in addition to the need for being absolutely sure of the guilt of the accused before he is executed. It was believed that a guilty person would be more likely to confess under torture than an innocent one. The importance of the confession is further illustrated by the fact that the accused had to read his confession aloud before the execution and of course, that a priest was present at the scaffold to console him. In the reports from the execution of Damiens, it is mentioned that Damiens, who was known to have been a great swearer, never swore during his suffering but that he prayed to God for help and that he was all the time consoled by a priest. His suf­fering would thus seem to have prepared him for eternal salvation.

Thus, torture became a relatively normal practice in criminal cases on the Con­tinent, while it was not used in ordinary jurisdiction in England, only in cases of treason or conspiracy against the government. In addition, torture might be used to force the defendant to accept trial by jury, which was in principle voluntary. However, despite cruel punishments and judicial procedures that seem to have offered the accused little protection, the system was not arbitrary; there were gen­eral laws that were applied in criminal as well as civilian cases. From the point of view of the upper and middle classes, the severity of the system and the lack of protection for the accused might seem less menacing that it would do for us. They would hardly risk torture and severe punishments but might regard the severity as protection against brigands and dangerous people. Parallel to the changes in judicial procedure in the early modern period was the introduction of an organized police which took place in France in the seventeenth century. In this and the following period, French cities, notably Paris, were safer and better organized than English ones; eighteenth-century London was notorious for crime and violence. During an anti-Catholic riot in 1780, ten times more property was destroyed in London than in Paris during the whole French Revolution.⁶⁸ Only in the first half of the nine­teenth century was a proper police force introduced in Britain. The name ‘bobby’ for the British police officer alludes to Sir Robert Peel who introduced the reform as Home Secretary, 1822-27.⁶⁹

An apparent exception to the rule of law are the lettres de cachet (sealed letters) in France, issued by the king and ordering the imprisonment, confinement to a monastery or exile of a named person, without trial and the possibility of appeal. Such letters could be issued at the initiative of the king or the royal government, but were usually the result of private initiatives, normally from the victim’s parents or relatives. They might be used against sons or daughters who wanted to marry against the wish of the family or against relatives who in some way or another might shame their families. Count Mirabeau, who had himself been a victim of the practice at the initiative of his father, condemned it with great eloquence at the beginning of the Revolution. The reason for Mirabeau’s imprisonment was his love affair as a young officer with a woman to whom his colonel was attached, which led to a great scandal. Although the lettres de cachet were rarely used for political purposes, the practice is hardly compatible with the rule of law. However, a detailed study from the district of Caen nevertheless concludes that it was less arbitrary than it would immediately seem.⁷⁰ The main aim of the practice was to avoid scandal; in some cases, it was applied to people who would normally have been sentenced by a court of law, as in the case of a family member who had forged coins, a crime punishable by death, which in this way was changed to life imprisonment. The royal government demanded extensive documentation and consent from the whole family and, in the cases of marriage, there were strict cri­teria for preventing it in this way.

Most countries on the Continent developed in the same way as France, with mainly professional judges, whereas Scandinavia in the Middle Ages shows greater similarity to England. Both in Denmark and Norway, the judges were normally committees of local men, similar to English juries, in Denmark either permanent committees or committees appointed by the plaintiff. Norwegian juries were selected from the local assemblies. In both countries, royal officials, in some cases with professional legal education, increased their importance from the thirteenth century onwards.

Until recently, the development described above was described as a transition from chaos to order. Thus, to Strayer, the introduction of royal justice from the twelfth and thirteenth centuries onwards represents a major step in the direction of an ordered society in Europe.⁷¹ The decline of royal power and the rise of a large number of nobles who controlled the surrounding countryside from their castles in the post-Carolingian period have been regarded as the breakdown of social order and widespread anarchy, with dire consequences for the weak and unarmed: cle­rics, merchants and peasants. More recent research, often based on analogies from fieldwork by social anthropologists in Third World countries, has modified this picture, claiming that the conflicts were after all limited and often ended in a compromise and that the descriptions of violence in the sources mostly stem from clerical writers hostile to the secular aristocracy who exaggerated the chaos.⁷² See­mingly arbitrary acts of violence were mostly carefully calculated steps towards making the adversary come to terms. Moreover, learned law was not the only means to solve conflicts; early medieval law, based on arbitration, was also able to do so. Here the main question was not which of the parties had the better claim but how to reach a solution that satisfied both parties. A conflict in the early Middle Ages was first and foremost about honour; it was shameful for nobles to have to give up a claim, in the same way as for the king himself when fighting another king. Moreover, honour was an incentive for nobles to fight feuds in the same way as for kings to fight wars. Much diplomacy was therefore needed from the arbitrators to find a solution that would save the honour of both parties. It must be added that this consideration was still important when powerful men were involved, also after the rise of royal courts of law.

There is no doubt some justice in these arguments. On the other hand, they are no longer supported by analogies from contemporary Third World countries, which have recently been shown to be extremely violent.⁷³ It must also be added that European society in the early Middle Ages was significantly more stratified than the Third World societies often used for comparison; only small-scale societies like Iceland — which has often been used in discussions about feuds — conform to the non-European pattern. Feuds therefore did not primarily take place between individuals who fought one another, but between armies led by nobles, which killed or plundered the enemy’s peasants.⁷⁴ Casual references to such plundering occur frequently in contemporary historical writings.

The case of Acharias of Marmande in the Noyers region of France around 1074 may serve as an example. Acharias had been at war against a union of powerful lords who had destroyed his castle and taken his land away from him. Acharias sought an alliance with another lord and conducted a kind of guerrilla warfare against his enemies. One night, he raided the hills of Grisay and attacked a house where some men were assembled. When they took refuge in a cave under the house, Acharias set fire to the house which burnt down and killed the people underneath, men, women and children. Shortly afterwards, Acharias was taken captive and confronted with his sin. He then appealed to the Abbot and monks of Saint Mary of Noyers to seek peace for him and donated land to the monastery to achieve this. Killing by burning was considered aggravating in the Middle Ages, as was also killing women and children, but Acharias’ main problem was that it turned out that some of his victims were nobles. Had they been ordinary peasants, he would hardly have had any problem.⁷⁵

Nor is it likely that a military aristocracy would regard war or feud as a necessary evil but rather as a good sport and a means to gain honour and renown — in a similar way as kings did in this and the following period. Further evidence of the problems caused by the conflicts include protest movements from the people, supported by the clergy, demanding cession or at least limita­tion of the fighting. Rules about this were also introduced in the form of the Peace or the Truce of God which was introduced in various countries in the eleventh and twelfth centuries. Clergy, women, peasants and merchants should be protected from warfare and feuds were to be forbidden on certain days, notably Sundays and religious holidays. This was gradually extended in some areas to include all weeks from Thursday to Sunday.⁷⁶ As we shall see, the available statistical evidence about homicide also indicates that the early Middle Ages must have been a very violent period.

This does not mean that the references to conflict solution by arbitration and negotiation are wrong or irrelevant; such institutions clearly existed, but their ability to reach peaceful solutions depended on the willingness of the warring parties. To take the example from the Icelandic sagas: the conflicts always reached a solution but not until some people had been killed — normally the same number on both sides. Admittedly, there would not have been a saga unless some people had been killed but the general point nevertheless remains: peace is more likely to occur when it is compulsory than when it is optional.

The expansion of royal justice was clearly in the king’s interest as it increased both his power and his incomes. However, it is unlikely that he would have suc­ceeded if the rest of society were opposed to it. He received support from the Church and the popular peace movements. Merchants became increasingly important from the twelfth century onwards and were clearly interested in a central power to keep law and order, as they were travelling over long distances and could hardly rely on local power. The clerics had their own, ecclesiastical courts, although they often made use of royal courts as well, while the merchants were in a weak position towards the aristocracy and were likely to seek aid from the king. In countries where the king increased his power during the high Middle Ages, such as England and France, there was a tendency for royal courts to increase their business at the cost of local ones. This was a logical development as soon as the royal courts became strong enough to overrule verdicts from local ones.

Concerning the general need for royal justice, Frederick Cheyette comments that ‘there is no reason to believe that individuals (any more than collectives called “nations”) prefer objective neutrality to partiality in their own favour’. Cheyette’s point here is not that the introduction of the ideal of objective justice was the result of force but the importance of arbitration in the early period: both parties had to be satisfied before the case could be solved. When formal public justice and royal courts of law were introduced in the southern regions of France in the mid­thirteenth century that he has examined, he explains it by social changes. New landowners had established themselves in the region, partly as a consequence of the war against the Albigensians, and, as newcomers, were less inclined to accept local arbitration. Moreover, there is hardly a total change from the old to the new practice. On the top of society, the king’s arbitration was still for a long time an important factor. The concern with honour in aristocratic circles included the duty to take revenge for insults and killings of relatives, which means that members of the class might easily regard it as a humiliation to be forced to submit to the judgment of a royal court. Eventually, however, the king’s increasing authority made it more difficult to oppose his decisions.⁷⁷ Concerning the general point about the choice between objective justice and partially in one’s own favour, most of us would probably still prefer the latter, but the point is that we cannot have it and then objective justice is preferable to partiality in the other party’s favour.

It is also clear that the growth of royal jurisdiction was the result of initiatives from below rather than above; an increasing number of litigants brought their cases before the royal courts of law.⁷⁸ In addition, it must be pointed out that an even stricter public justice was introduced in the city republics, for instance, in Florence, where Giano della Bella’s reforms in the 1290s were intended to curb the violence of the aristocracy. This need for public justice was largely caused by the social and economic development during the high Middle Ages: a larger population, clearing of new land, increased agricultural production, greater economic surplus, urbani­zation and increased communication between various parts of the realm created new conflicts that were less likely to be solved through local arbitration.

This also affected the aristocracy. The right to conduct feuds remained a noble privilege for a long time after the introduction of public justice but was eventually abolished and replaced by litigation.⁷⁹ Nevertheless, duels were practised until the nineteenth or early twentieth century, particularly among the nobility but also to some extent by others. On the one hand, this was forbidden by the government, on the other, it was considered a duty among gentlemen to the extent that a man who refused a challenge was excluded from polite society. Although the members of the aristocracy would normally try to preserve their rights regarding local jur­isdiction, it was in practice difficult for local courts to compete with the central ones when the litigants had the opportunity to appeal to a higher court. The loser at the local courts would then be likely to bring his case before the royal one and eventually, there would be a tendency to bring it there in the first place. This was of course in the king’s interest, as settling cases in the Middle Ages was normally profitable, in addition to strengthening the king’s power. However, it was also in the interest of the litigants, as demonstrated by the enormous increase in cases brought before the royal courts of law from the thirteenth century onwards. Thus, in England and to a lesser extent in other countries, the royal courts had largely replaced local ones by the end of the Middle Ages. The king had increased his power within his realm, not primarily by defeating rebellious nobles but by settling issues between an increasing number of litigants.

Since the 1970s, a series of studies have shown a decline in homicide in Western Europe from between 20 and 100 per 100,000 in the thirteenth century to 19 in the sixteenth, 11 in the seventeenth and 3.2 in the eighteenth century, with a further decline to around 1 in 1950.80 The numbers are of course uncertain, par­ticularly for the earliest period, but the general trend is likely to be correct. No statistics are available from before the thirteenth century but there is little to suggest that the rate then was lower; in all likelihood, it was higher. Although the sources, particularly from the early period, are often scanty, they all point in the same direction. It also seems clear that the decline must be related to the growth of royal government and justice, including stricter punishment and more thorough prose­cution of crimes.⁸¹ However, there is no exact correlation between the severity of punishment and the increase of the judicial administration, on the one hand, and suppression of homicide, on the other. The lowest rates are to be found in England and the Netherlands, both of which had less developed prosecution of crime than France, Spain and Italy. As we have seen, England even lacked a proper police force until the 1820s. However, in both these countries, there was a close rela­tionship between the authorities and the local population, combined with relatively effective courts of law, which may have served to prevent crime and replace vio­lence; the concern for honour might have been expressed in the numerous cases of libel brought before the courts rather than in violence. Generally, the existence of courts of law to solve disputes and the gradual recognition of them as an alternative to the use of arms may have been as equally important as prosecution and punishment.

Religious and cultural changes may also have played a part. The typical medieval and early modern homicide took place in or near a tavern or at a drinking party and was the result of a quarrel between two, usually younger, men. What was at stake was honour; an insult would diminish a man in the eyes of his equals and could only be atoned by violence; not necessarily killing, but this was often the result when both parties used knives. It has been suggested that the Reformation may have had some importance in limiting this kind of violence by focusing on internal values rather than honour and esteem from others. In particular, as we shall see, the close communities created by Calvinism may have worked in this direc­tion. However, as the decline of violence is approximately the same in the Southern as in the Northern Netherlands in the sixteenth century, the Counter­Reformation may have had the same effect, at least in some places. There is also a long-term decline of violence in the upper classes, which were the most violent part of the population in the Middle Ages, while they had been replaced by the lower classes in this respect in the nineteenth and twentieth centuries. In addition to religion, the development of bourgeois values in the seventeenth and eighteenth century may have been a factor. The development of trade and business, particu­larly in the eighteenth century, led to new ideals of behaviour, self-control and rational calculation replacing passions and honour.⁸²

Whatever the exact idea of the relationship between the king and the law, there is no doubt about the fundamental importance of law in European cul­ture and state formation. Law and justice were main tasks for the state. By controlling justice and punishment and becoming the source of law, the mon­archy took a great step towards institutionalization. In accordance with Roman law as well as ecclesiastical doctrine, the king holds an office which makes him a different man and makes assault on him a far more serious crime than the same act against anyone else.

In addition to its practical consequences for solving conflicts and convicting and punishing criminals, the development of law in the twelfth and thirteenth centuries has been regarded as a major intellectual revolution. Law was understood as a coherent body, an integrated system but developing over time. This development was believed to have an internal logic; changes were not only adaptations of old to new, but formed a pattern. The historicity of law was linked to a concept of its supremacy over the political authorities. Although the monarch might make law, he might not do so arbitrarily; he was bound by the existing law until he had changed it and he was bound by the main principles of the legal tradition. Finally, Western law was characterized by coexistence and competition between various legal systems.⁸³ Moreover, it was to be practised by a community of experts who had to apply its paragraphs to particular cases in accordance with legal precedence and other relevant paragraphs. The law of corporations thus became an important factor in the development of business; the modern limited company has its back­ground in medieval doctrine, although it took some time to develop. Parallel to this, merchant law developed and, as we shall see, became one of the comparative advantages of Europeans during the Great Discoveries.

The statistics about the decline of homicide gives a similar picture as that of warfare: the greatest change seems to have taken place in the seventeenth and particularly eighteenth century. Thus, Morris may be right that there is a connec­tion between external war and internal peace; the state became more eager to interfere in internal conflicts when fighting external enemies. On the other hand, there is more evidence of state formation in the early period in the legal than in the military field. Significant changes took place in legislation, new legal methods and public justice and courts of law were introduced and there was an enormous increase in issues brought before them. Europe was far from peaceful in the thir­teenth century but there is nevertheless a considerable distance from the chaos depicted by Elias, Tilly and Morris.