Heart of Europe: A History of the Roman Empire (110 page)

Henry III’s project appears to have been entirely independent, even if some of its methods were similar to the Truce of God. Henry’s peace was royal and central, not episcopal and local. Embracing sacral kingship, Henry demonstrated his commitment to peace as a good Christian by praying and admonishing his subjects to live in harmony. However, this was backed by royal power through harsher, exemplary punishments for those breaching the peace. Pardons were still possible, for example for Gottfried ‘the Bearded’ during the 1040s, but his partial restoration as duke of Lorraine after a rebellion was as a special indulgence issued by Henry on his exclusive authority as king, and not through a symbolic submission brokered by other lords. This explains why some clergy accused Henry of vanity on the grounds that true peace was only obtainable in heaven, while others condemned the royal peace as a
pax perniciosa
, because it had not been arranged with the bishops.
³¹

Henry’s initiative stalled, since his death in 1056 was followed by his son’s long minority and subsequent problems. Henry IV did use his authority to broker regional, temporary peace pacts in Saxony (1084), Bavaria and Swabia (both 1093), while bishops made similar
arrangements through synods in their diocese: Liège (1082), Cologne (1083) and Mainz (1095). None of these measures was particularly effective given the cycle of civil wars throughout the later stages of Henry’s reign. Lack of success fuelled the anti-Henrician propaganda of royal failure.

The Public Peace

Henry responded by promulgating the first ‘public peace’ (
Landfrieden
) at Mainz in 1103 with the backing of the dukes of Bavaria, Zähringen and Swabia. Intended to last four years, this was already broken by renewed rebellion early in 1105. However, it would be wrong to dismiss it as a failure. Henry had resumed his father’s peace policy, but adapted it to the Empire’s new political balance, initiating a form of peace-keeping that would shape imperial political and judicial practice until 1806. His successors promulgated similar measures, though no copies survive before Barbarossa’s public peace of 1152. The preservation of this text was due to a major effort to disseminate its terms in writing to all bishops, counts and margraves. It was renewed in 1179, and followed by further, more restricted versions in 1186 and 1223, before Frederick II issued another general peace in 1235.
³²

All these measures intended a general pacification of the Empire rather than the local truces attempted in France. Each measure was agreed by the king at a general assembly of major lords who swore to uphold it. The impulse was the widespread desire to surmount the cycle of civil wars between 1073 and 1106 by replacing violence with more peaceful arbitration. Crucially, the king now submitted to the peace himself, rather than trying to stand above it like Henry III. Henry IV’s experience demonstrated that reliance on force merely lent credence to his opponents’ charges of royal tyranny. The last two Salians and their Staufer successors wanted to place opponents in the wrong as potential peace-breakers. Meanwhile, promulgation through an assembly obliged those present to assist in upholding it. Crusading ideology preached since 1095 also played a part for both Conrad III and Barbarossa, who embraced the pope’s call for peace amongst Christians to enable warriors to go to the Holy Land. Finally, the measures reflected new concepts of peace itself. In the early Middle Ages, it was believed that peace was best established by allowing each social group and
community to be left undisturbed in possession of its rights. This legitimated the feud that was intended to assert rights against those who ignored or usurped such rights. By the twelfth century, peace was understood more in terms of right and wrong, with all violence perceived as a direct threat to tranquillity.
³³

However, this development did not mitigate the trend towards harsher justice. The 1103 public peace incorporated bloody punishments, including blinding or amputation of a hand for theft, robbery and extortion, while those directly breaching the peace were to be maimed and deprived of their property and fief. These penalties were not simply for deterrent effect; they were considered fairer than the earlier system of fines, which the poor found harder to pay.
³⁴
While the public-peace legislation reinforced the emperor as supreme judge, this was not a role he was either willing or able to perform often. The emperor was involved in settling at least 150 cases in royal towns across 1101–1254, including 80 in the last 30 years of that period.
³⁵
This gives a small indication of the potential total volume of business across the Empire, which was clearly beyond the capacity of any medieval king to handle. The public peace was intended to free the king from the burden of lesser cases, whilst reserving to him those involving princes and other immediate lords.

Worldly imperfections were fully recognized in the temporary nature of each public peace. A king was not expected to enforce verdicts, leaving those involved free to accept his judgement or find their own settlement. For this reason, the public peace retained the option to feud. This approach was pragmatic, encouraging peaceful resolution, whilst recognizing this was not always possible given that disputes involved not just the pride and ‘face’ of those immediately concerned, but that of their clients and supporters.
³⁶
Violence was permitted, but contained and channelled through measures intended to ensure that those using ‘excessive’ force forfeited the legitimacy of their case. For example, the 1235 peace contained clauses to protect economic activity by guaranteeing the safety of royal highways even during a feud.

The idea of the public peace survived the Staufers’ demise, because it represented a practical way to confront violence whilst protecting the interests of those charged with enforcing it. King William issued one in 1255 as part of his alliance with the Rhenish Civic League, while Richard of Cornwall promulgated another in 1268.
³⁷
Rudolf I and his
successors renewed these measures, either for the entire Empire (1287, 1290, 1298), or for specific regions (1276, 1281, 1289). Renewed conflict after 1298 interrupted these developments, which resumed under Charles IV, who renewed the general peace in 1354 prior to his Roman coronation journey. The Golden Bull consolidated existing practice by charging the electors with upholding the peace and making peace maintenance the primary task of future leagues and unions in the Empire.
³⁸

The Emergence of a Judicial Hierarchy

Royal peace initiatives helped realign judicial practices with the emerging status hierarchy and the needs of a society structured more obviously into corporate Estates. The 1231 charter to princes gave dukes, bishops, counts and margraves expanded magisterial powers, not only over their own vassals and servants, but over virtually all the inhabitants in their jurisdiction. In the longer term, this represented an important step in territorializing princely power. More immediately, it adjusted conflict management and resolution to the new division of labour, since the princes were now charged with judging infractions according to the definition of crimes and scale of punishments agreed in the public peace. This change clearly identified princes as exercising powers of corporal punishment (
Blutsgerichtsbarkeit
), and helped identify their courts as superior, since such cases had to be referred to them from the localities. Combined with mint, toll, tax and other rights, these new powers were important elements in marking the princes as a distinct status group. Concern for status helped make the system work, because the desire to deny outsiders excuses to intervene was a powerful incentive for princes to keep their own jurisdictions in order.
³⁹

Generally, a two-tier judicial hierarchy developed within these princely jurisdictions by 1300. The lowest tier emerged as lords retreated from direct management of towns and villages, which established local courts chaired by mayors. These usually met four times a year to judge a broad range of disputes and crimes punishable mainly by fines.
⁴⁰
A second, higher tier emerged with the development of districts as administrative subdivisions within princely fiefs. District courts were chaired by officials representing the prince, and usually had a circuit (
Gericht-sprengel
) of up to ten villages that they toured to hear more serious
cases. A third tier appeared around 1500 as superior territorial courts were established, either as a
Hofgericht
chaired by the prince, or as a ‘territorial court’ (
Landgericht
) under an appointed judge. These central courts institutionalized the central exercise of ‘bloody jurisdiction’ across an entire territory, regardless of its formal division into different fiefs. The establishment of these superior courts was usually underpinned by additional imperial privileges, such as those granted to Trier in 1458. The hierarchical structure was mirrored in the imperial and free cities where a lesser magistrates’ court (
Ratsgericht
) handled minor transgressions like breaches of civic ordinances or building regulations, while a superior ‘city court’ (
Stadtgericht
) judged serious crimes like murder, arson, theft or rape, and could impose corporal punishment.
⁴¹

While varying considerably in detail, all courts adhered to broadly similar norms and procedures. Judgement by peers had already been part of Ottonian practice and continued as trial by 7 to 12 jurors selected from upstanding members of the community. The judge was assisted by a clerk, while by the fifteenth century cases could be brought by an official prosecutor as well as by a plaintiff. Despite the trend to more formalized, written procedures, the emphasis remained more on mediation than determining guilt and punishment. In some regions, jurors were required to seek an amicable settlement prior to a case coming to court. Cases involving insult or slander used a process called ‘sending’ (
Beschickung
) in which a third party was delegated to ask what the offender had really intended. Neighbours were expected to engage in ‘saving’ (
Retten
), intervening to break up fights and prevent serious harm.
⁴²

Appellate Justice

The development of a longer judicial hierarchy extended the open-ended character of justice by enabling cases to be appealed against or referred to superior courts for additional adjudication. Already from the twelfth century, the new towns founded east of the Elbe would call on their ‘mother cities’ for legal advice, while the spread of universities after 1348 led to difficult cases being referred to law faculties, which functioned by 1530 as a kind of appeals court.
⁴³
These practices evolved in consequence of the division of judicial labour intended to free the emperor to concentrate on disputes among the princely elite. Appeals to
the emperor became a special, restricted privilege already in the Staufer era. Frederick II appointed a royal
Justiciar
in 1235 to relieve him of the burden of judging cases himself. Although this post lapsed during the 1250s, it was revived in February 1274 as permanent, yet with a more restricted remit for cities and counts but no longer princes, whose disputes were still judged by the monarch.
⁴⁴
The advisory council developed into the
Kammergericht
(cameral court), which accompanied the king on his royal progress and had its own chancellery (
Kanzlei
) to record proceedings.

The limited remit of royal justice encouraged additional local initiatives, particularly in response to the greater social unrest and political disorder of the fourteenth and fifteenth centuries. The most notorious were the freelance courts called
Veme
operating between 1300 and 1450 in Westphalia and sometimes beyond in areas rarely visited by the king. These were largely self-appointed courts, but were protected by the archbishop of Cologne and sometimes enjoyed royal sanction to uphold the public peace. They met openly if the accused appeared voluntarily, but otherwise convened in secret and in practice served as vehicles for Westphalia’s nobles to consolidate their local and regional power. Their potential was limited and they disappeared once open opposition from Frederick III dissuaded local princes from allowing them to hear further cases.
⁴⁵

The public-peace measures of 1383 and 1389 adjusted to the development of more clearly delineated territorial judicial systems by grouping these on a regional basis prefiguring the Kreis structure adopted after 1500. In contrast to thirteenth-century practice binding princes to uphold the peace through their feudal obligations, the 1383 measures envisaged associations of all immediate lords acting more autonomously to maintain order in their own region. This development was backed by the princes, because they, rather than the knights and towns, were primarily responsible for judging serious cases in their region. These measures could be effective: Count Dietrich von Wernigerode was executed by his peers in 1386 for breaking the peace.
⁴⁶
After the efforts at a general peace in the 1380s, similar measures continued to be made on a regional basis after 1400, but were hindered by princes’ growing reluctance to submit their disputes to arbitration. As we have seen (
pp. 398–9
), the result was an escalation in violent feuding that spread from the elite to other sections of society.

However, all late medieval associations continued the culture of collective conflict resolution and peace enforcement. The Swabian League’s court handled 250 cases across 1488–1534, three-quarters of which involved disputes between different status groups, like towns and princes.
⁴⁷
Cases involving disputes with non-members often proved difficult if these refused to acknowledge the court’s jurisdiction. Consequently, demands for more effective royal justice became a central element in imperial reform. Initial efforts in 1442 faltered, but Frederick III secured successive extensions of a new general public peace after 1465. Following 1467, breaches of the peace were treated as
crimen laesae maiestatis
, effectively stigmatizing them as rebellion and allowing those responsible to be placed under the imperial ban. The Turkish menace was invoked to enjoin Christians to stop fighting each other and combine against the infidel.