Heart of Europe: A History of the Roman Empire (109 page)

The king or senior lord usually acted cautiously. If he was not immediately party to the dispute, he could encourage those involved to accept his mediation. If the case concerned him directly, he would invite a relative or other influential figure to act as a discreet broker. These practices are fundamental to the Empire’s character as a mixed system. Rebellions were not about lords resisting the creation of a centralized monarchy, but personal disputes amongst the Empire’s ruling elite. Royal justice was thus not ‘neutral’, but part of a dynamic process by which the elite resolved contentious issues.

Leading vassals could be summoned to form what would later be called a ‘feudal court’ (
Lehenshof
), composed of the peers of those involved in the dispute. The king could preside or deputize the role of judge. The accused would be summoned to account for their actions. During the Ottonian era such courts generally refrained from formulating clear charges, allowing those involved to compromise without losing face by presenting the dispute as a misunderstanding. The Carolingians and Salians tended to act more clearly as judges from the outset. Nonetheless, judicial authority remained primarily moral rather than institutional, encouraging compromise by stigmatizing those flouting the rules. Excessive violence or failure to appear before the court was construed as placing that party automatically in the wrong, enabling the authorities to dispense with a formal hearing and proceed immediately to punishment. This practice became enshrined by early modernity as the concept of ‘notoriety’, whereby an individual demonstrated their guilt through wanton disregard for accepted norms. Those identified as guilty this way could be branded in absentia as a public enemy (
hostis publicus
) in a practice that had become known by early modernity as the ‘imperial ban’ (
Reichsacht
): they were declared outlaws, suspending any rights or legal protection, voiding any contracts and freeing any dependants, servants or subjects from any obligations. The purpose of this process was to isolate the accused, depriving them of support, and thus reducing the need for violence to apprehend and punish them.
²⁰

The dispute between Otto I and his son Liudolf illustrates these methods. As always, the causes were complex and included disagreements between father and son over intervention in Italy, and Liudolf’s anxiety for his inheritance following his father’s second marriage in 951. Liudolf signalled his protest by boycotting the family’s Easter celebrations in 952, an action intended to undermine Otto’s standing among the aristocracy. The latter, however, largely rallied to Otto, showing their support by attending his court. Bolstered by their presence, Otto issued an ultimatum to Liudolf and his principal ally, Conrad the Red, duke of Lorraine (who was also Otto’s son-in-law): both were to attend the royal court to answer for their actions, or face the consequences. Following their failure to appear, Otto deprived Conrad of his duchy, but initially refrained from issuing a verdict against Liudolf. Both sides rallied their vassals and began a series of raids and other military operations intended to demonstrate strength
and lend weight to negotiations discreetly brokered by the archbishops of Mainz and Cologne. Conrad eventually accepted the loss of Lorraine in return for a royal pardon. Increasingly isolated, Liudolf pre-empted another summons from his father by seeking him out whilst hunting near Weimar in 954. Having begged for mercy, Liudolf was pardoned, partly as a public show of family solidarity in the face of a renewed Magyar invasion.
²¹

Conrad the Red’s removal from office (
Absetzung
) represented the standard punishment for serious felony cases. The evolution of the Empire’s elite into hereditary lords made this quite complicated. The Ottonians distinguished between revoking a fief (and its associated title and jurisdictions) and the fate of the culprit’s own property. Whereas they generally spared the latter, the Salians were more likely to confiscate allodial possessions as well as revoking a fief, and in extreme cases extended expropriation to the assets of wives and relations. Early medieval kings imprisoned some felons by entrusting them to the supervision of loyal abbots or bishops. Wayward royal relatives could find themselves shut up in isolated monasteries. Banishment was often preferred, removing an individual from their local networks without the cost of imprisoning them. Excommunication could supplement banishment by excluding the culprit from the community of believers. Death was possible, but was rarely used for senior lords, though lesser vassals were executed for perceived serious offences. Death sentences were passed far more frequently than they were implemented, because medieval kings could gain prestige by commuting them as an act of clemency, though this became less common under the Salians and Staufers. Lesser lords and commoners were always treated less favourably. Louis II ‘the German’ hanged so many criminals that the archbishop of Mainz was forced to institute special measures to stop the corpses becoming a health hazard.
²²

There was no fixed scale of punishments, partly due to the secondary and incomplete character of written law at this point, but also because cases were judged according to circumstances. Repeat offenders were treated more severely, but the authorities were also conscious that continued punishment of the same family over several generations could stoke dangerous resentment. Above all, the outcome had to be enforceable, otherwise those involved would lose face. Harsh verdicts might tip opinion against the king and possibly encourage
wider protest. However, the Empire’s monarchs remained more than first among equals and, contrary to the standard interpretation of decline, there was no reduction in their ability to depose truculent vassals (
Table 15
).
²³
Emperors deposed twice as many vassals as the kings of West Francia (27 cases from 844 to 958) and three times the number in Lotharingia (17 cases from 843 to 958).

Ottonian and Early Salian Arbitration

The later Carolingians’ continued assertion of themselves as supreme judge stemmed from their relative weakness and direct involvement in many of the disputes they claimed to adjudicate. By contrast, the Ottonians’ greater stability allowed them to adopt a more open-ended form of conflict resolution relying more on mediation than confrontation. A key element in this was the practice of ritual submission known as
deditio
whereby the wrongdoer publicly acknowledged his guilt by prostrating himself before the king and begging for mercy, as Liudolf did with his father in 954. Charlemagne had pardoned enemies, but only as a mitigation of their punishment. For example, the rebellious Bavarian duke Tassilo III was forgiven at an assembly in Frankfurt in
794, but still deposed and imprisoned in a monastery. On other occasions, death sentences were reduced to blinding. Charlemagne’s son Louis the Pious appears to have been the first to alter this practice by inventing a new ceremony of ritual humiliation when faced by a rebellion of his own son, Lothar, in 834. Louis needed to reverse his own humiliation at the hands of his three sons who had forced him to do public penance the previous year. Having gained the military upper hand, Louis forced Lothar to prostrate himself, in return for being forgiven and accepted back into the political elite.
²⁴

Table 15. The Removal of Immediate Vassals

The ritual of deditio was ostentatiously emotional, with tears of contrition both signalling submission and calculated to encourage a formal pardon from a king who risked losing face by failing to show clemency. Likewise, a king’s public rage was not necessarily anger or a childish inability to control emotions, but a public signal that an opponent had overstepped the mark. The risks for both sides encouraged discreet negotiations to arrange terms in advance, which were performed in a carefully choreographed ceremony symbolizing the restoration of a harmonious order. This practice was unusual in medieval Europe, with only one case being identified for England prior to the Norman Conquest.
²⁵
However, it remained restricted to the elite, and lesser vassals were likely to be treated harshly, as exemplified in 998 by Otto III’s execution of Crescentius and his ritual humiliation and imprisonment of the anti-pope John XVI (see
pp. 50–51
).

Harsher Justice

Two anecdotes exemplify a shift to a harsher justice after the mid-eleventh century. As we have seen (p.524), Conrad II delayed his journey from his election to his coronation in 1024 to hear petitions from a peasant, a widow and an orphan, despite the advice from his entourage to hurry on. Contemporary commentators used (or invented) this episode to praise Conrad for being more interested in justice than his own dignity. The newly crowned Frederick Barbarossa was accosted in 1152 by a retainer who hoped for a pardon for a past fault. Despite throwing himself on the floor, the plaintiff was ignored by the king, who was praised by Otto of Freising for his ‘constancy of opinion’ in not allowing himself to be swayed from the proper application of the law by special pleading.
²⁶

One of the reasons for this change was the risky character of the deditio. Henry IV’s experience at Canossa in 1077 appears to have dissuaded him from using this practice again.
²⁷
The collapse of trust between Henry and his senior lords was another factor, particularly as the breach deepened into prolonged civil war, making it difficult for individuals to serve as neutral mediators. The adoption of a more sacral style of kingship after 1002 widened the political distance between the monarch and senior lords and encouraged a shift from Christian mercy to Old Testament severity. Behaviour changed as well, and it became politically unacceptable for a king to cry in public. Further factors included eleventh-century church reform and a papacy that now insisted on unconditional obedience, and the accompanying heightened morality that shifted general judicial practice from compensating victims to punishing the guilty.

Henry VI’s cruel punishments were not a personal quirk, but a consequence of this longer-term trend that inhibited the earlier acts of clemency. Faced with widespread opposition soon after his arrival in Sicily in 1194, Henry had his opponents tortured and executed, or deported to Germany. His rival, William III, was blinded and castrated, ritually rendering him unfit to be king. After a rebellion in the Norman mainland in 1197, Henry had prisoners sawn in half or drowned at sea. Frederick II employed similar methods to reassert authority after the civil war of 1198–1214, and again after the Apulian revolt of 1230. His assizes court convened at Capua in 1220 banned feuds, requiring all disputes to be adjudicated by royal judges. The 219-paragraph Constitution of Melfi, promulgated in August 1231, was Europe’s first comprehensive secular law code. Based on Roman law, it applied only to Sicily and Naples. While aspects of Staufer practice appear modern relative to the Empire, they also reflect the particular circumstances of their rule over the former Norman kingdom. Norman rule was itself only a few generations old, while that of the Staufer rested on a conquest that remained contested into the mid-1230s.
²⁸

The trend to harsher justice was not universally welcomed. Otloh, a Regensburg monk, attributed Henry III’s death to divine punishment for ignoring the petitions of the poor. The poor certainly felt the growing severity, as lords regarded any opposition as an affront to their status. Archbishop Anno II of Cologne provoked a revolt by requisitioning a merchant ship without prior consultation in 1074. He allowed
his soldiers to pillage the merchants’ houses as a reprisal. Anyone resisting was killed or bound in chains. The ringleaders were blinded, while others were whipped and shorn. Finally, the entire population was required to perform ritual penance as an admission of their ‘guilt’.
²⁹

Pacifying the Empire

The Salians’ concept of themselves as Christ’s vicars encouraged an ambitious goal of what commentators in the 1040s already called a ‘general pacification’ (
magna pacificato
) of the Empire. The impulse came from the monarch, unlike the Peace of God (
Pax Dei
) movement that spread through France from Aquitaine after 975 as bishops responded to increasing violence. Having tried to persuade secular lords to renounce force, the bishops switched after 1027 to a more pragmatic Truce of God (
Treuga Dei
), requiring participants to forswear violence from Thursdays to Monday mornings.
³⁰
These ideas only reached the Empire in the 1080s when they were largely rejected by bishops along the western frontier who refused to participate in regional truces organized by their French counterparts.