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Abstract
This article explores the criminalization of homicide in early modern Denmark, 16th–17th centuries. Criminalization is here defined, primarily, as the harshening of penalties for homicide in law and practice. The article shows that a process of criminalization took place that contributed to a pacification of the population (demonstrated by a decrease in homicides) but also engendered practices of resistance and evasion which were reminiscent of a medieval feud culture. The attitude towards homicide was for a long time ambivalent, not just among the lower classes but at all levels of society. Criminalization and pacification were mainly products of state-building through harsher punishment and the formation of a more reliable legal system. This top-down process meshed with the broader population’s demands for justice and security.
Acknowledgments
The author would like to thank Helle Vogt, University of Copenhagen, and the two anonymous reviewers for valuable comments and suggestions.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 The Danish court system was made up of local courts (Hundred courts, herredsting, manor courts, birketing, town courts, byting, and magistrate courts, rådstueretter), regional courts (the provincial courts, landsting), and the Supreme Court (kongens retterting), in which the king and council of nobles presided. These courts dated back to the middle ages but were not systematically ordered as an appeals hierarchy before the middle of the 16th century (see below).
2 Danske Domme, no. 116.
3 When speaking of Jutland, I mean the province of Northern Jutland (north of the river Kongeåen) apart from Southern Jutland, or Schleswig, which was, since the 13th century, a semi-independent duchy under the Danish Crown.
4 For Sweden, see Jansson, ‘(O)rättfärdigt våld’.
5 Den danske Rigslovgivning [1523–1558], no. 80 §36; cf. Den danske Rigslovgivning [1397–1523], no. 43 §14; Corpus constitutionum 1, no. 1 §44.
6 Den danske Rigslovgivning [1523–1558], no. 58 §7.
7 Ibid., no. 80 §16.
8 Fenger, Fejde og mandebod, 397–8.
9 Jørgensen, Dansk strafferet, 42.
10 The article concentrates on the Kingdom of Denmark (roughly present-day Denmark plus the large province of Scania which was conquered by Sweden in 1657), which was only one (albeit the dominant) part of the Danish conglomerate state. The Danish conglomerate state (a personal union under the Oldenburg dynasty) furthermore consisted of the medieval kingdom of Norway (including its Atlantic possessions such as Iceland and Greenland) and the duchies of Schleswig and Holstein. Until the dissolution of the Kalmar Union in 1523 it also included, at least nominally, the Kingdom of Sweden. Holstein was, regarding aspects of relevance for this article, culturally and legally German, and the power of the Danish central state was very weak here, and is thus left out. Schleswig remained under Danish law, but the influence of the Danish king was weaker than in the kingdom, and we furthermore lack research on subjects relevant for the present article apart from the execution practices mentioned below. Norway was under a certain influence from the Danish central state but remained relatively autonomous in local matters and partly retained its own legislation and legal system, just as its social structure diverged significantly from the Kingdom of Denmark. Despite the subject being more thoroughly investigated in Norwegian than in Danish research, it would thus be misleading to include Norway in the present analysis and its causal explanations without a number of serious reservations and further explorations (e.g. evaluation of the reach of the Danish central state in Norway, systematic comparison of social structures), even though Norway experienced a pacification process which was roughly similar to the one that took place in the Kingdom of Denmark. On violence and pacification in Norway, see e.g. Næss, ‘Vold’; Lindström, ‘Homicide in Scandinavia’.
11 Fenger, Fejde og mandebod; Vogt, The Function of Kinship, 133–8.
12 Sandemænd, a jury or board of trustworthy men whose obligation was to find the objective truth of the cases presented to them and to deliver verdicts under oath.
13 Jørgensen, Manddrabsforbrydelsen; Netterstrøm, ‘Bondefejder’, 40.
14 Here and in the following, ‘royal official’ refers to the lensmand who administered a royal castle and its pertinent administrative territory (len), consisting of one or more Hundreds (herreder), on behalf of the king. Since the office of lensmand integrated both feudal and monarchic-official tendencies, it may be called ‘vassal’ or ‘bailiff’, but since it was neither one nor the other exclusively, these labels are imprecise, and the more neutral ‘royal officer’ is opted for in this article.
15 Netterstrøm, ‘Bondefejder’, 42–3; Netterstrøm, Fejde og magt, 281–6; Den danske rigslovgivning [1513–1523], no. 1 §43.
16 Den danske rigslovgivning [1513-1523], no. 12 §34–41, no. 13 §57–65, 113, xxxix–xxxxiiii, lxxxvi.
17 Netterstrøm, ‘Reformationens betydning’; cf. Jørgensen, Dansk strafferet, 48–9, 293. The last-mentioned view runs contrary to recent Danish scholarship, which greatly emphasizes the importance of Lutheran theology, e.g. Tamm et al., ‘The Law’, 29; Krogh, Lutheran Plague, 97–104. Lutheran theology as the main factor behind criminalization of homicide and pacification is quite unique to Danish research. On explanations given in other Scandinavian historiographies, see Lindström, ‘Homicide in Scandinavia’, 55–61. In a wider European context, the confessional explanation is quite rare; see Spierenburg ‘Protestant Attitudes’. The reason for this is probably to be found in the fact that these processes took place all over Europe, regardless of confessions; see Eisner, ‘From Swords to Words’.
18 On the Crown’s estates, the royal official performed this function, and the nobility had a monopoly on these offices and of possessing royal administrative districts (len). The Crown’s estates around 1650 comprised c. 50% (including 6% allodial peasants) of all landed property in Denmark, noble landowners 44%, churches and cathedral chapters 6%.
19 Netterstrøm, ‘Øvrighederne, bønderne og fejden’, 325–6.
20 Netterstrøm, ‘Bønder og vold’.
21 Christensen, Baareprøven.
22 E.g. Wittendorff, ‘Fire stolper’; Fink-Jensen, ‘Kampen om den indviede jord’.
23 My results are based on analysis of about 50 concrete performances of ‘the law of the bier’, on which I hope to publish a monograph soon. On ‘the law of the bier’ and ‘cruentation’ in early modern England, see Gaskill, ‘Reporting Murder’.
24 Corpus constitutionum 3, no. 227.
25 Corpus constitutionum 4, no. 518 §3;Kilday, History of Infanticide, 17–18.
26 Corpus constitutionum 3, no. 492.
27 Corpus constitutionum 3, no. 555.
28 Cf. Lindström, ‘Homicide in Scandinavia’, 44–5.
29 Næss, ‘Vold’; Netterstrøm, ‘Den danske stat og voldsmonopolet’; Netterstrøm, ‘Bønder og vold’; Eisner, ‘From Swords to Words’.
30 It should be noted that many homicides throughout the period in question seem to have been committed by respectable middle-ranking males rather than disreputable youngsters, drifters, or the like.
31 Dahlerup, ‘Den kirkelige disciplin’, 390. Before the Reformation, the punishment for infanticide was execution by fire.
32 Danske Domme, no. 236, 277, 367, 386, 582, 636, 689, 696, 727; ‘Kancelliets tegnelser [1535–1550]’, 3, vol. 6, 325 and 4, vol. 1, 40; Netterstrøm, ‘Bondefejder’, 69–70.
33 Jørgensen, Dansk strafferet, 289–91, 304.
34 Other examples: ‘Kancelliets tegnelser [1535-1550]’, 4, vol.1, 47; Kancelliets Brevbøger 1608, 775.
35 Appel, Tinget, magten og æren, 271–98; Netterstrøm, ‘Bønder og vold’.
36 Kancelliets Brevbøger 1593, 12–13; Stevnsborg, ‘Riberret’, 205.
37 Netterstrøm, ‘Reformationens betydning’.
38 Cf. Lindström, ‘Homicide in Scandinavia’, 55–6.
39 Krogh, Oplysningstiden og det magiske.
40 Secher, ‘Bidrag til Københavns rets- og kulturhistorie 1624-1663’; Krogh, Lutheran Plague, 104.
41 Kragh-Nielsen, Galgehøj og rettersted, 223–60; Eisner, ‘From Swords to Words’.
42 Kragh-Nielsen, Galgehøj og rettersted, 228.
43 Netterstrøm, ‘Den danske stat og voldsmonopolet’, 112–13.
44 Vogt, ‘Judicial Torture’.
45 Jørgensen, Dansk strafferet, 38.
46 Andersen, Studier i dansk proceshistorie.
47 Jørgensen, Dansk strafferet, 65–76.
48 Johansen, ‘Den danske adel og retsvæsenet’.
49 Johansen, ‘Den danske adel og retsvæsenet’. After the introduction of absolutism, however, popular participation in the legal system dwindled. Appel, Tinget, magten og æren, 579–650; Lyngholm, Godsejerens ret.
50 Netterstrøm, ‘Reformationens betydning’.
51 Lind, ‘Våbnenes tale’, 254–5; Vogt, ‘I kongens nåde eller unåde’.
52 ‘Sone for David von der Ostens Død’; Fenger, Fejde og mandebod, 500–1.
53 However, on practice see Krogh, Oplysningstiden og det magiske, 195–6.
54 Netterstrøm, ‘Military and Civilian’, 114–19.
55 Appel, ‘De danske krigsfanger’.
56 Netterstrøm, ‘Soldater og civile’.
57 Weber, Wirtschaft und Gesellschaft.
58 Elias, Prozeß der Zivilisation.
Additional information
Notes on contributors
Jeppe Büchert Netterstrøm
Jeppe Büchert Netterstrøm is Associate Prof. Address: Dept. of History, School of Culture and Society, Aarhus University. Jens Chr. Skous Vej 5, building 1461, room 422, 8000 Aarhus C, Denmark. [email: [email protected]]