Making Manslaughter: Process, Punishment and Restitution in Württemberg and Zurich, 1376-1700 [1 ed.] 9789004344716, 9789004218215

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Making Manslaughter

Medieval Law and Its Practice Edited by John Hudson (St. Andrews) Editorial Board Paul Brand (All Souls College, Oxford) Emanuele Conte (Università Roma Tre/ehess, Paris) Dirk Heirbaut (University of Ghent) Richard Helmholz (University of Chicago) Caroline Humfress (Birkbeck, London) Magnus Ryan (Peterhouse, Cambridge) Robin Chapman Stacey (University of Washington)

Volume 22

The titles published in this series are listed at brill.com/mlip

Making Manslaughter Process, Punishment and Restitution in Württemberg and Zurich, 1376–1700

By

Susanne Pohl-Zucker

LEIDEN | BOSTON

Cover illustration: Fol. 75v. from the Bambergische Peinliche Halsgerichtsordnung (Staatsarchiv Bamberg, Hochstift Bamberg, Vogt- und Steueramt Burgkunstadt 14). This judicial code was published in 1507 and regulated criminal jurisdiction in the city of Bamberg. The Bambergische Peinliche Halsgerichtsordnung served as a model for the Constitutio Criminalis Carolina, the imperial criminal code from 1532. The image depicts a manslayer receiving a letter promising him safe passage to his trial. Reproduced with the kind permission of the Staatsarchiv Bamberg. Library of Congress Cataloging-in-Publication Data Names: Pohl-Zucker, Susanne, author. Title: Making manslaughter : process, punishment, and restitution in Württemberg and Zurich,  1376–1700 / by Susanne Pohl-Zucker. Description: Leiden ; Boston : Brill, [2017] | Series: Medieval law and its practice ; volume 22 |  Based on author’s thesis (doctoral—University of Michigan, 1997), issued under title:  Negotiating honor and state authority : the prosecution and punishment of manslaughter in  Zurich and Southwest Germany, 1350–1600. | Discusses “duchy of Württemberg and the imperial  city of Zurich”—ECIP data view. | Includes bibliographical references and index. Identifiers: LCCN 2017010574 (print) | LCCN 2017023734 (ebook) | ISBN 9789004344716  (E-book) | ISBN 9789004218215 (hardback : alk. paper) Subjects: LCSH: Manslaughter—Law and legislation—Germany—Württemberg—History. |  Manslaughter—Law and legislation—Switzerland—Zurich—History. | Reparation (Criminal justice)—  Germany-Württemberg—History. | Reparation (Criminal justice)—Switzerland—Zurich—History. Classification: LCC KK785.M35 (ebook) | LCC KK785.M35 P64 2017 (print) | DDC  345.43/4702525—dc23 LC record available at https://lccn.loc.gov/2017010574 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1873-8176 isbn 978-90-04-21821-5 (hardback) isbn 978-90-04-34471-6 (e-book) Copyright 2017 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

For Lisa-Jane and Tim

∵

Contents Acknowledgments ix Introduction 1 1 Restitution: Strategies of Compensation and Resolution in Early Modern Württemberg 43 2 Prosecution: Manslaughter and the superfacto Procedure 93 3 Legitimation: Legal Parameters and Expert Knowledge in Württemberg Homicide Trials 137 4 Accusations and Mediations: The Prosecution of Manslaughter in Zurich 195 5 Justification: Defensive Strategies in Zurich 260 Bibliography 309 Index of Names and Subjects 330

Acknowledgments Many people have contributed to the growth and final realization of this work. It grew out of and developed from my dissertation, and I am grateful to my advisors for their guidance and support throughout my graduate studies and beyond. Diane Hughes has stimulated an early interest in cultural history, and Thomas Green has taught me to think and rethink my approaches towards historical perceptions of criminal responsibility. Their work has influenced my own in most important ways. I have profited from many exchanges with Thomas Tentler, and I want to thank Bill Miller for discussions that have inspired my research and enriched my perspectives on a variety of topics, as well as practices of dispute settlement in medieval Europe. I also owe a strong gratitude to former colleagues at the history department of Cornell University for helpful exchanges on diverse aspects of my work. I especially want to thank Rachel Weil, Vicki Caron, Sandra Green, Tamara Loos and Eric Tagliacozzo. In particular, I am grateful to Isabel Hull, who has read and commented on two chapter drafts and given encouragement when it was most needed. I have repeatedly profited from discussions at annual meetings of the Arbeitskreis Kriminalitätsgeschichte in Stuttgart-Hohenheim, especially from insights provided by Gerd Schwerhoff, Ulrike Ludwig and Karl Härter. I want to thank Tom Cohen and Sarah Jefferis for thoughtful comments and editing help at an early stage of the project. Martin Illi and Christian Casanova have provided important advice in Zurich. I am especially grateful to Dana Rabin, who was there with inspiring guidance and perceptive advice during every step of the writing process and to whose work my analysis is greatly indebted. Her constant encouragement has meant much. I want to express special gratitude to Craig Koslofsky who read the entire manuscript, provided invaluable insights and helped me find a title. His advice has been inspiring throughout this process. Jamie Page has edited and proofread the manuscript, and I am most grateful for his suggestions, advice and competent help with English language issues. His work has made the completion of this project possible. I have also strongly profited from his work on late medieval Zurich and many conversations about legal history. I would like to express my special thanks to John Hudson for his generous advice and support throughout the various stages of this project, as well as his forbearance and patience during a process that was much more lengthy than originally expected. I want to thank Marcella Mulder and Jarno Florusse at Brill for generous help and advice. Archival research has been

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greatly facilitated by the uncomplicated help and guidance that I have received from the staff at the Hauptstaatsarchiv Stuttgart and the Staatsarchiv Zurich. I am grateful for last-minute copyediting help from Sara Elin Roberts. Support and encouragement also came from Carolin Runge, Sari Feldman, Bettina Körner-Mohr, Christiane Pyka, Angela Nitschke, Katharina Hadding, Monika Kultschak-Etges, Inge Henrich and Daniela Huber, along with other friends and neighbours who cannot all be named. Thank you all. My greatest debt is owed to my family. My parents, Irmtrud and Karl Pohl, have been unfailing with their emotional and material support and their belief in me has been a constant source of encouragement. My gratitude to them is not easily expressed in words. I also want to thank my brother and his family, Daniela, Stefan, Fabia and Chiara Pohl as well as Brigitte Reske and her family for their support and help with child care. Special thanks also go to my husband, Michael Zucker, for making it possible for me to write this book. He tirelessly rearranged his work schedule around my writing needs and did not give up believing that I could finish this book despite appearances that often suggested otherwise. I thank my twins, Lisa-Jane and Tim, for their patience with an often absent-minded mother. They are my source of inspiration.

Introduction In 1447, Hans Merckh killed Georg Halder, the son of the constable in the southern German village Michelwinnaden. Merckh initially fled from the village, but returned after an extrajudicial agreement was mediated with Halder’s family. According to this agreement, Merck offered Halder’s widow financial compensation and promised yearly services for the welfare of the dead man’s soul. He also had to perform a public penance: he was required to purchase 250 candles which community members carried during a procession to the grave of the victim, an action which preceded reconciliation between the parties.1 Extrajudicial agreements in homicide cases, the so-called Totschlagssühne, were a typical feature of late medieval German legal culture. They were always a matter of negotiation, and depended on the status and social position of both slayer and victim. The negotiation of such agreements was mostly restricted to killings which occurred during a quarrel and in response to some provocation, such as physical or verbal assault, sometimes called schlechter/ehrlicher todslag (“simple/honorable manslaughter”).2 Historians of crime have charted changes in criminal procedure during the early modern period which resulted in stricter definitions and harsher punishments of manslaughter and served to bring private agreements into the orbit of official justice.3 In the Germanspeaking lands, the increasing reliance on the ius commune, the emergence 1  See Hans Jänichen, “Schwäbische Totschlagssühnen im 15. und 16. Jahrhundert,” Zeitschrift für Württembergische Landesgeschichte, XIX. Jahrgang, 2. Heft (1960), pp. 132 and 136–139. 2  Although laws enacted during the medieval period rarely contained a definition of manslaughter, court records and literary sources make clear that an honorable slaying was one that was committed in response to a provocation. The law of the city Brünn from 1343, for example, was one of the few statutes that did give a definition of manslaughter. According to this law, a slaying committed in reaction to a provocation “out of anger for the sake of vengeance,” [… ex ira ratione vindictae …] was manslaughter, not murder; see Philipp Allfeld, Die Entwicklung des Begriffes Mord bis zur Carolina. Ein rechtsgeschichtlicher Versuch (Erlangen, 1877), p. 70. Social tolerance of killings which occurred in reaction to provocation was a widespread European phenomenon; see Claude Gauvard, “De Grace especial.” Crime, État et Société en France a la fin du Moyen Age. 2 vols. (Paris, 1991). For a discussion of communal resistance in late medieval England to the imposition of the death penalty on slayings considered “emendable” by the community, see Thomas A. Green, Verdict According To Conscience: Perspectives on the English Criminal Jury 1200–1800 (Chicago and London, 1985), pp. 28–64, for example, at pp. 50–52. 3  See, for example, Xavier Rousseaux, “From Case to Crime. Homicide Regulation in Medieval and Modern Europe,” in Die Entstehung des öffentlichen Strafrechts. Bestandsaufnahme eines europäischen Forschungsproblems, ed. Dietmar Willoweit (Cologne, 1999), pp. 143–175.

© koninklijke brill nv, leiden, ���7 | doi ��.��63/9789004344716_002

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of centralized legal systems and the spread of Roman-canonical inquisition procedure tightened governmental supervision of the settlement of homicide. This development may be viewed as part of a wider process of growing state control, a process increasingly justified by a religious and civic code of morality which praised modesty and peaceful conflict avoidance. Yet this process was not straightforward, nor can it be exhaustively described from a top-down perspective. Through two expansive case studies that trace the settlement of manslaughter in the duchy of Württemberg and the imperial city of Zurich between 1400 and 1700, this book presents a series of revealing twists and turns in the narrative of the development of criminal justice in late medieval and early modern Central Europe. The regulation of manslaughter occurred as part of an ongoing negotiation with customary forms of justice. Although the stakes rose for slayers during the early modern period and the settlement of manslaughter increasingly served governmental needs, an analysis of the trial records illustrates the strategies and positions still available to disputants in this changed setting. The analysis that follows here confirms recent findings that the prosecution of interpersonal violence in early modern Europe continued to be influenced by “traditional patterns of private retaliation, compensation and negotiation.”4 This study traces both the course and the legitimation of these negotiations. The focus is on the legal and extralegal strategies that were activated from the moment that participants realized that a homicide had been committed. This includes measures such as flight, petitions, negotiations between slayers and families of victims as well as pretrial investigations, the inclusion of experts and the various stages of a trial. These discussions do not search for an imagined consistent process, but focus instead on the unpredictability and the dynamic quality of legal practice and on the various ways in which slayers, victims’ kin, government officials and lawyers contributed to the “making” of judicial categories of manslaughter. The choice of Württemberg and Zurich allows for an exploration of the settlement of manslaughter in distinct legal and political contexts. In Württemberg, a sovereign ruler ordered that manslaughter be judged according to norms and procedure based on the ius commune. In Zurich, a city council dominated by 4  Karl Härter, “Violent Crimes and Retaliation in the European Criminal Justice System between the Seventeenth and Nineteenth Century,” Max Planck Institute for European Legal History research paper series No 2013–01, http://ssrn.com/abstract=2218350, p. 7. See his accompanying references to works corroborating these findings. See also the contributions in a recent volume edited by Stephen Cummins and Laura Kounine, Cultures of Conflict Resolution in early modern Europe (Ashgate, 2016).

Introduction

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local guilds held Roman law at bay, but continuously changed and redefined customary traditions. In both places, government authorities sought stricter control over the settlement of homicide, but the degree to which custom was modified or changed differed starkly. For example, in Zurich, arbitration procedures remained an official part of justice for longer than in Württemberg, although there, too, private agreements between slayers and the families of their victims continued to be negotiated throughout the seventeenth century. While Württemberg and Zurich shared a common legal tradition, these case studies are not intended to form a direct comparison, nor do they pretend to be exemplary analyses for the prosecution of homicide in either the imperial territories or an imperial city.5 Both Württemberg and Zurich occupy a special place within the Empire. Whereas in most territories, governments had to share the administration of criminal justice with competing intermediate local jurisdictions, Württemberg’s duke stood at the head of a centralized criminal justice system.6 Zurich, situated on the fringes of the Empire, from which the Swiss Confederacy seceded in 1648, remained aloof from imperial legislation which constituted a model for the legal initiatives in other cities and territories in the Empire. This study thus illustrates the multi-faceted nature of the Empire’s institutional and political culture, and demonstrates how, depending on context, the building blocks that constituted the legal culture surrounding violent death could be assembled in distinct ways.

5  These regions originally formed a part of the early medieval “alemannische Dukat” [“alamannic duchy”] which was reduced to a Merovingian province by Charles Martel after a series of unsuccessful revolts against Franconian authority in 730, but which was revived as the Duchy of Swabia during the tenth century. The duchy of Swabia began to disintegrate in the thirteenth century into numerous different rulerships. One of these was the duchy of Württemberg; see E. Reiling, “Schwaben,” Handwörterbuch zur Deutschen Rechtsgeschichte, vol. 4, eds. Adalbert Erler and Ekkehard Kaufmann (Berlin, 1990), ibid., cols. 1541–1546. The Lex Alamannorum, the Alamannic law, which had been codified between the seventh and eighth century, constituted the customary law for the entire region. See Claus-Dieter Schott, “Lex Alamannorum,” Handwörterbuch zur Deutschen Rechtsgeschichte, vol. 2, eds. Adalbert Erler and Ekkehard Kaufmann (Berlin, 1978), cols. 1880–1886. Zurich became an imperial city in 1218 and joined the Swiss Confederacy in 1351. 6  See Ulrike Ludwig, Das Herz der Justitia. Gestaltungspotentiale territorialer Herrschaft in der Strafrechts- und Gnadenpraxis am Beispiel Kursachsens 1548–1648 (Constance, 2008), p. 10 and Johannes Dillinger (ed), Zauberer-Selbstmörder-Schatzsucher. Magische Kultur und behördliche Kontrolle im frühneuzeitlichen Württemberg (Trier, 2003), p. 9.

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Introduction

Leading Themes and Historiographical Context

This study contributes to a growing German historiography of crime and delinquency—Kriminalitätsgeschichte—which since the 1980s has moved beyond an earlier focus on the development of prescriptive law. This body of work was originally conceived as an opposition to traditional legal history (“Rechtsgeschichte”), which in a German academic setting is pursued by lawyers rather than by historians, and was frequently faulted by Kriminalitätshistoriker (“historians of crime”) for adopting a modernist or teleological perspective.7 Kriminalitätshistoriker have approached legal sources from a social and a cultural perspective, often influenced by sociological and anthropological theory, and analysed subjects hitherto neglected by legal historians—for example, how legal practice was shaped by the social context of disputants or by cultural conceptions of gender, morality or honor.8 Recently, however, studies 7  See also Gerd Schwerhoff’s characterization of Rechtsgeschichte and Kriminalitätsgeschichte in Aktenkundig und gerichtsnotorisch. Einführung in die historische Kriminalitätsforschung (Tübingen, 1999), p. 15. Publications belonging to the field of Kriminalitätsgeschichte are numerous. For an introduction, see Gerd Schwerhoff, Aktenkundig und gerichtsnotorisch, Joachim Eibach, “Kriminalitätsgeschichte zwischen Sozialgeschichte und Historischer Kulturforschung,” Historische Zeitschrift 263 (1996), 681–715 or Gerd Schwerhoff, “Kriminalitätsgeschichte im deutschen Sprachraum. Zum Profil eines “verspäteten” Forschungszweiges,” in Kriminalitätsgeschichte. Beiträge zur Sozial und Kulturgeschichte der Vormoderne, eds. Andreas Blauert and Gerd Schwerhoff (Constance, 2000), pp. 21–68. For a succinct, more recent summary, see Ludwig, Das Herz der Justitia, pp. 12–21. 8  For discussions of cultural concepts of honor informed by anthropological theories, see Klaus Schreiner and Gerd Schwerhoff (eds), Verletzte Ehre. Ehrkonflikte in Gesellschaften des Mittelalters und der Frühen Neuzeit (Cologne, Weimar, Vienna, 1995), especially the contributions by Martin Dinges, “Die Ehre als Thema der historischen Anthropologie. Bemerkungen zur Wissenschaftsgeschichte und zur Konzeptualisierung,” pp. 29–62, and Hans de Waardt, “Ehrenhändel, Gewalt und Liminalität: ein Konzeptualisierungsvorschlag,” pp. 303–319. Several articles regarding “Delinquenz und Geschlecht” (“delinquency and gender”) can be found in Andreas Blauert and Gerd Schwerhoff, eds. Kriminalitätsgeschichte, pp. 649–706. Karl Härter’s description of labelling processes illustrates the influence of sociological approaches on Kriminalitätsgeschichte; see, for example, his article “Social control and the Enforcement of Police-Ordinances in Early Modern Criminal Procedure of criminal justice in early modern Criminal Procedure,” in Institutions, Instruments and Agents of Social Control and Discipline in Early Modern Europe, eds. Heinz Schilling and Lars Behrisch (Frankfurt am Main, 1999), pp. 39–63, at p. 52. The volume Wahrheit, Wissen, Erinnerung. Zeugenverhörprotokolle als Quelle für soziale Wissensbestände in der frühen Neuzeit, eds. Ralf-Peter Fuchs and Winfried Schulze (Münster, 2002) collects analyses of witness testimony regarding local legal knowledge or communal evaluations and approaches towards governmental norms and practices. For a recent discussion of the influence of legal anthropology on the historiography of crime

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belonging to the historiography of Kriminalitätsgeschichte have analyzed themes which have traditionally been the domain of Rechtsgeschichte, such as procedure or jurisprudence.9 This study seeks to contribute to this growing literature, and focuses both on the development of criminal procedure in homicide cases as well as the emerging judicial parameters based on the evaluation of a slayer’s intent. Following the discussions of recent cultural history, “culture” is understood in this study as constituted by “historically constructed and transformed systems of meaning and distinction that interpret the world.”10 The present discussion of legal culture seeks firstly to uncover assumptions and concepts behind the definition, prosecution and punishment of non–capital versus capital homicide, and secondly to analyze the dynamics influencing the application of these definitions and assumptions in legal practice.11 These analyses are influenced by a practice-oriented approach which asserts that culture or

and society in early modern Europe, see John Jordan, “Rethinking Disputes and Settlements: How Historians Can Use Legal Anthropology”, in Cultures of Conflict Resolution in Early Modern Europe,” eds. Cummins and Kounine, pp. 17–50. 9  Significant contributions include Helga Schnabel-Schüle’s study of the institutional and procedural framework conditions of criminal justice in Württemberg; see Überwachen und Strafen im Territorialstaat (Cologne, Weimar, Vienna 1997) and Karl Härter’s work on the administration of criminal justice in Mainz; see Policey and Strafjustiz in Kurmainz. Gesetzgebung. Normdurchsetzung und Sozialkontrolle im frühneuzeitlichen Territorialstaat, 2 vols. (Frankfurt am Main, 2005), as well as two studies on the impact of practices of mercy on governmental approaches towards criminal justice; see Harriet Rudolph, “Eine gelinde Regierungsart”. Peinliche Strafjustiz im geistlichen Territorium. Das Hochstift Osnabrück (1716–1803) (Constance, 2001), Ulrike Ludwig, Das Herz der Justitia. Ulrich Falk has made an important contribution to the study of jurisprudence with his work on judicial evaluations or “consilia“; see Consilia. Studien zur Praxis der Rechtsgutachten in der frühen Neuzeit (Frankfurt am Main, 2006). Ulrich Falk’s study illustrates a rappochement between legal historians and Kriminalitätshistoriker in recent years. See also the contributions to several conference proceedings, for example, Hans Schlosser and Dietmar Willoweit, eds., Die Entstehung des öffentlichen Strafrechts (Cologne, Weimar, Wien, 1999) or by the same editors, Neue Wege strafrechtrechtsgeschichtlicher Forschung (Cologne, Weimar, Wien, 1999). 10  “… Sinn- und Unterscheidungssysteme, die als spezifische Formen der Weltinterpretationen dienen und im historischen Verlauf hervorgebracht und verändert werden …” Achim Landwehr, “Kulturgeschichte, Version 1.0,”, in Docupedia-Zeitgeschichte (14.5.2013), URL: http://docupedia.de/zg/Kulturgeschichte?oldid=106445. 11  For further reference, see Harriet Rudolph’s lucid discussion of the concept of “legal culture” and its use in recent historiography in “Rechtskultur in der Frühen Neuzeit. Perspektiven und Erkenntnispotentiale eines modischen Begriffs,” in Historische Zeitschrift 278 (2004), 347–376.

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“structure” only exists if it is practiced and produced by social actors: structure is thus “lived, it is enacted, but it is also challenged, renewed, changed.”12 Practice theorists thus argue that the interaction between actors and structure can result in transformation and change. Anthropologist Sherry Ortner, in particular, stresses the dynamic quality of this interaction. Her notion of structure emphasizes its internal contradictions and tensions. These can act as catalysts for differences or changes in social activity because actors are forced again and again to find solutions to these contradictions. Where manslaughter is concerned, its legal treatment was influenced by specific cultural concepts that could come into conflict: on the one hand, a cultural code that validated the use of violence in the defense of honor, and on the other a code that emphasized peaceful conflict avoidance, promoted by religious and political norms.13 This tension produced a variety of compromises and solutions which were constitutive of the legal culture in Württemberg and Zurich, such as the flexible use of rules of evidence, the emergence of procedures situated between civil and criminal action, and jurists’ use of a category of homicide that permitted a range of sanctions but saved slayers from the death penalty. These legal parameters did not determine the prosecution of manslaughter in a set and predictable manner, however. Legal norms had an important legitimating function, but their use and implementation in a particular case depended heavily upon context.14 A chief characteristic of the legal 12  Sherry Ortner, High Religion (Princeton, 1989), p. 196. 13  This analysis is inspired by Susanna Burghartz’ important study of justice in late medieval Zurich, where she analyses how the jurisdiction of the council court was propelled by a cultural tension between the demands of the city peace and a communal code of honor, see Ehre, Leib und Gut. Delinquenz in Zürich Ende des 14. Jahrhunderts (Zurich, 1992). 14  The relationship between legal norms and their implementation has been widely discussed in the literature of Kriminalitätsgeschichte; see, for, example, Achim Landwehr’s discussion of Württemberg territorial ordinances. He demonstrates that the implementation of these norms depended on a variety of cultural and social factors that governed the communal microcosmos: Achim Landwehr, Policey im Alltag. Die Implementation frühneuzeitlicher Policeyordnungen in Leonberg (Frankfurt am Main, 1999), and by the same author: “Normendurchsetzung” in der Frühen Neuzeit? Kritik eines Begriffs,” Zeitschrift für Geschichte 48 (2000), 146–162. See also Ulinka Rublack, “Frühneuzeitliche Staatlichkeit und lokale Herrschaftspraxis in Württemberg,” Zeitschrift für historische Forschung 24 (1997), 347–376, who describes the implementation of norms in early modern Württemberg as the result of processes of negotiation between state officials and subjects (e.g. ibid., p. 349). For a related analysis, see Markus Meumann and Ralf Pröve, “Die Faszination des Staates und die historische Praxis,” in Herrschaft in der Frühen Neuzeit. Umrisse eines dynamisch-kommunikativen Prozesses, eds. Markus Meumann and Ralf Pröve (Münster, 2004), pp. 11–49 and the other contributions in this volume. For further discussion of the

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culture surrounding the settlement of manslaughter was its indeterminacy and openness: categories of homicide, procedural forms and rules of evidence proved flexible, and definitions could be stretched and applied to a variety of circumstances. This study analyses how legal meanings were produced, reproduced or subject to situational adjustment in each legal interaction, a process constituted by a complex interplay between the individual agency of disputants and their respective support groups, including lawyers and government officials, and social, cultural and normative constraints.15 Despite a variety of approaches and differing foci, broad consensus can be found among Kriminalitätshistoriker on a number of assumptions regarding the dynamics which created this early modern German legal culture. The discussions in this study intersect with several of these premises concerning the development of procedure and the application of norms in legal practice. There is, for example, widespread agreement that early modern criminal procedure developed in interaction with coexisting systems of out-of-court settlement. Francisca Loetz has argued that extra-judicial strategies of dispute resolution belonging to what she calls, in reference to French historiography, “l’infrajudiciaire,” were frequently encouraged by government officials.16 This contrast between norms and practice, see in particular Martin Dinges, “Normsetzung als Praxis? Oder: Warum werden die Normen zur Sachkultur und zum Verhalten so häufig wiederholt und was bedeutet dies für den Prozeß der ‘Sozialdisziplinierung’?,” in Norm und Praxis im Alltag des Mittelalters und der Frühen Neuzeit. Internationales RoundTable-Gespräch Krems an der Donau 7. Oktober 1996 (Vienna 1997), pp. 39–53; Jürgen Schlumbohm, “Gesetze, die nicht durchgesetzt werden—ein Strukturmerkmal des frühmodernen Staates?,” Geschichte und Gesellschaft 23 (1997), 647–663. 15  The term “situational adjustment” is borrowed from legal anthropologist Sally Falk Moore, who uses it in connection with her concept of legal change. Falk Moore argues that cultural norms and patterns of behavior in a legal setting are resistant to legal change and will survive within revised settings, albeit transformed, and can be situationally adjusted; see Sally Falk Moore, “Law and Social Change: The semi-autonomous social field as an appropriate subject of study,” Law and Society Review (Summer 1973), 719–746. 16  See Francisca Loetz, “L’infrajudiciaire. Facetten und Bedeutung eines Konzepts,” in Blauert and Schwerhoff, eds. Kriminalitätsgeschichte, pp. 545–562. For discussions of extrajudicial agreements in late medieval and early modern Germany, see also Carl A. Hoffmann, “Außergerichtliche Einigungen bei Straftaten als vertikale und horizontale soziale Kontrolle im 16. Jahrhundert,” in Blauert and Schwerhoff, eds., Kriminalitätsgeschichte, pp. 563–579; Valentin Gröbner, “Der verletzte Körper und die Stadt,” in Physische Gewalt, eds. Thomas Lindenberger and Alf Lüdtke (Frankfurt am Main, 1995), pp. 162–189; Heiner Lück, “Sühne und Strafgerichtsbarkeit im Kursachen des 15. und 16. Jahrhunderts,” in Neue Wege strafrechtsgeschichtlicher Forschung, eds. Hans Schlosser and Dietmar Willoweit (Cologne, Weimar and Vienna, 1999), pp. 83–99; and Andreas Blauert, “Sühnen und Strafen

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is because restitution and reconciliation were just as important within early modern justice as the punishment of an offense. State authorities were often content to allow disputants to settle their differences according to traditional norms and rules governing social interaction in late medieval and early modern communities. The persistence of extrajudicial solutions into the early modern period should thus not be considered as a sign of governmental weakness, but rather as constitutive of early modern legal culture.17 This study of the settlement of manslaughter in Württemberg and Zurich illustrates changing parameters for the negotiation between punitive and restitutive justice during the early modern period.18 In both Württemberg and Zurich, reconciliations between disputing parties in homicide cases were encouraged and integrated into the legal system during the sixteenth century. Although Württemberg’s dukes ordered the prosecution of manslaughter through criminal trials from the sixteenth century, the negotiation of private agreements continued alongside these trials and could influence practices of punishment throughout the 1600s. In Zurich, even though arbitration was drawn into the official orbit of justice during the sixteenth

im sächsischen Freiberg vom 15. bis 17. Jahrhundert,” in Rudolf Schlögl (ed.), Interaktion und Herrschaft. Die Politik der frühneuzeitlichen Stadt (Constance, 2004), pp. 163–179. For a European comparison, see Claude Gauvard’s examination of late medieval French settlements ‘De Grace especial’, for discussions of the relationship between royal justice and extrajudicial settlement in late medieval England see Edward Powell, Kingship, Law and Society. Criminal Justice in the Reign of Henry V (Oxford, 1989). 17   See Cummins and Kounine, “Introduction. Confronting Conflict in Early Modern Europe,” in Cultures of Conflict Resolution, eds. Cummins and Kounine and the literature cited there. See also Ulrike Ludwig, Das Herz der Justitia, p. 16, who describes the conscious reliance on communal institutions and solutions as an important aspect of early modern government practices. See also her references to similar discussions, especially Stefan Brakensiek’s concept of “akzeptanzorientierte Herrschaft” (“government based on acceptance”) in his article “Herrschaftsvermittlung im alten Europa. Praktiken lokaler Justiz, Politik und Verwaltung im internationalen Vergleich,” in Stefan Brakensiek and Heide Wunder, eds., Ergebene Diener ihrer Herren? Herrschaftsvermittlung im alten Europa (Cologne, Weimar and Vienna, 2005), pp. 1–22, in which he describes the purposeful use of local structures by early modern German government authorities in their attempts to centralize administrative systems. 18  See Bruce Lenman and Geoffrey Parker, “The State, the Community and the Criminal Law in Early Modern Europe,” in Crime and the Law. The Social History of Crime in Western Europe since 1500, eds. V.A.C. Gatrell, Bruce Lenman and Geoffrey Parker (London, 1980), pp. 11–48 for a discussion of the relationship between punitive and restitutive justice in early modern Europe.

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century, the prosecution of manslaughter required both a trial and the city council’s supervision of an agreement between slayer and the victim’s family. Extrajudicial and judicial solutions were not separate, but constituted overlapping spheres of activity. While government officials frequently promoted extra-judicial solutions, legal actors also embraced the court system as a convenient forum for the settlement of their disputes. Martin Dinges coined the term “Justiznutzung” (“use of justice” or “forum shopping”) to draw attention to the fact that the extension of early modern court systems occurred not only through government initiatives but also in response to local demands.19 In late medieval Zurich, for example, victims’ families increasingly initiated accusations against slayers in front of the court, and thus simultaneously endorsed and contributed to the growth of centralized criminal justice. An analysis of procedure in manslaughter cases illustrates a number of interesting twists and turns in the development of the criminal, or “peinliche” procedure. Recently, historians have challenged assumptions about the spread of the Roman-canon inquisition procedure which was endorsed by imperial legislation during the sixteenth century. Ulrike Ludwig has argued in her study of early modern Saxon criminal justice that government officials did not rely exclusively on the inquisition procedure, but resorted to both civil and criminal procedure in the prosecution of serious offenses.20 In Zurich, proceedings in manslaughter cases continued to be initiated by private parties throughout the early modern period. The city council ordered a trial ex officio only if no such party came forward. In seventeenth-century Württemberg, a special procedure developed for the prosecution of manslaughter that displayed 19  See Martin Dinges, “Michael Foucault, Justizphantasien und die Macht,” in Mit den Waffen der Justiz. Zur Kriminalitätsgeschichte des späten Mittelalters und der Frühen Neuzeit, eds. Andreas Blauert and Gerd Schwerhoff (Frankfurt am Main, 1993), pp. 189–212, and by the same author “Justiznutzungen als soziale Kontrolle in der Frühen Neuzeit,” in Kriminalitätsgeschichte, eds. Blauert and Schwerhoff, pp. 503–544. The translation of Justiznutzung as “forum shopping” is borrowed from Karl Härter, see Karl Härter, “Das Heilige Römische Reich deutscher Nation als mehrschichtiges Rechtssystem,” in Die Anatomie frühneuzeitlicher Imperien. Herrschaftsmanagement jenseits von Staat und Nation: Institutionen, Personal und Techniken, ed. Stephan Wendehorst (Oldenbourg, 2015), p. 332. For an example of a case study of Justiznutzung, see Stefan Breit, “Das peinliche Verhör der Katharina Widmann,” in Prozesspraxis im Alten Reich: Annäherungen— Fallstudien—Statistiken, eds. Annette Baumann, Peter Oestmann and Stephen Wendehorst et al. (Cologne, Weimar, Wien, 2005), pp. 137–180. See also Daniel Smail’s analysis of legal actors as “consumers of justice”: Daniel L. Smail, The Consumption of Justice. Emotions, Publicity, and Legal Culture in Marseille, 1264–1423 (Ithaca, 2013). 20  See Ludwig, Das Herz der Justitia, p. 14 and p. 56.

10

Introduction

elements of both the criminal and the civil procedure. Before the initiation of a trial, government officials had to decide whether this special procedure, called superfacto, or the regular criminal procedure should be used. As Karl Härter has recently argued, the use of criminal procedure may be regarded as an important instrument of social control that allowed legal officials to differentiate between perpetrators even before the imposition of punishments.21 In Württemberg, however, defendants could sometimes influence the choice of procedure themselves by escaping to a nearby asylum, allowing them to create a bargaining position from which they could ask for lenient procedural terms as a prerequisite for their return. Various studies have explored the scope of disputants’ agency within the context of legal procedure, drawing particular attention to the importance of letters of supplication written by defendants and their friends.22 In Württemberg and Zurich, networks of support were regularly activated after a homicide: friends and families of slayers and victims addressed government authorities to plead for their relatives. Ludwig underscores a recent historiographic focus on the importance for the administration of criminal justice of such “processes of negotiations”, carried out between disputants and their support groups versus legal officials and representatives.23 Analyses of disputants’ attempts to influence the outcome of criminal proceedings are characteristic of the historiography of Kriminalitätsgeschichte, which has abandoned an earlier focus on Sozialdisziplinierung (social discipline).24 As Karl Härter has argued, social 21  See Härter, “Social Control” and “Strafverfahren im frühneuzeitlichen Territorialstaat: Inquisition, Entscheidungsfindung, Supplikation” in Kriminalitätsgeschichte, eds. Blauert and Schwerhoff, pp. 459–480. 22  The historiography concerned with analyses of the legal function of letters of supplication is large; see, for example, the contributions in Cecilia Nubola and Andreas Würgler, eds., Bittschriften und Gravamina. Politik, Verwaltung und Justiz in Europa (14.-18. Jahrhundert) (Berlin, 2005) or André Holenstein: “Klagen, anzeigen und supplizieren. Kommunikative Praktiken und Konfliktlösungsverfahren in der Markgrafschaft Baden im 18. Jahrhundert,” in Streitkulturen. Gewalt, Konflikt und Kommunikation in der ländlichen Gesellschaft (16.-19. Jahrhundert), eds. Magnus Eriksson and Barbara Krug-Richter (Cologne, 2003), as well as Rudolph, Eine gelinde Regierungsart and Gerd Schwerhoff, “Das Kölner Supplikenwesen in der Frühen Neuzeit. Annäherungen an ein Kommunikationsmedium zwischen Untertanen und Obrigkeit,” in Köln als Kommunikationszentrum. Studien zur frühneuzeitlichen Stadtgeschichte (Cologne, 2000), pp. 473–497. 23  Ludwig, Das Herz der Justitia, p. 15. 24  The concept of Sozialdisziplinierung was first formulated by Gerhard Oestreich in his study of eighteenth-century Prussia: Geist und Gestalt des frühmodernen Staates (Berlin, 1969). As Heinz Schilling formulated, Sozialdisziplinierung aims to “… designate the incorporation of individuals and social groups into a homogenous association of subjects … in

Introduction

11

control of crime in the early modern period included informal mechanisms of control, or what Helga Schnabel-Schüle has termed “horizontal disciplining.” The communal acceptance or rejection of a defendant, their social status and their position within a community, all exerted a significant influence on their official treatment.25 The restoration and stabilization of communal relations was therefore a central goal of the administration of justice. In recent years, historians have discussed the objectives and goals of practices of punishment in the context of the early modern concept of “gute policey” (“good police”), the latter a concept which has been the focus of extensive scholarly research.26 The origins of this concept can be traced to the late medieval period. During the course of the fifteenth century, government authorities favour of a “common good” defined by the state”; see “Confessional Europe,” in Handbook of European History 1400–1600, eds. Thomas A. Brady, Jr., Heiko A. Oberman and James D. Tracy (Leiden, New York and Cologne, 1995), p. 661. The concept of Sozialdisziplinierung has been used widely; see, for example, Robert Jütte’s analysis of early modern poverty legislation, “ ‘Disziplin zu predigen ist eine Sache, sich ihr zu unterwerfen eine andere’ (Cervantes)—Prolegomena zu einer Sozialgeschichte der Armenfürsorge diesseits und jenseits des Fortschritts,” Geschichte und Gesellschaft 17 (1991), 92–101, as well as Werner Buchholz’s discussion of sumptuary legislation in late medieval cities: “Anfänge der Sozialdisziplinierung im Mittelalter. Die Reichsstadt Nürnberg als Beispiel,” Zeitschrift für historische Forschung 18 (1991), 129–147. Within the field of Kriminalitätsgeschichte, a closer attention to the motives and strategies of social groups and their interactions with the state has replaced this focus on state disciplining mechanisms. As Schwerhoff summarizes, Kriminalitätshistoriker view “the people of the past not only as objects of an authoritative process of disciplining, but as self-willed subjects …” (“… die in den Menschen vergangener Tage nicht allein Objekte obrigkeitlicher Disziplinierung, sondern eigenwillige Subjekte sehen …”), “Devianz in der alteuropäischen Gesellschaft, Umrisse einer historischen Kriminalforschung,” Zeitschrift für historische Forschung 19 (1992), 413. 25  See Härter, “Social Control,” p. 50 and Schnabel-Schüle, Überwachen und Strafen, p. 167. 26   Gute policey was based on Aristotelian political philosophy. The term appeared first in France in the fourteenth century, when a French jurist translated a Latin version of Aristotle’s “politika” and rendered the title with the French term “police.” The translation was made for the king, and Iseli speculates that the term quickly found its way into the language used by royal administrators to refer to the good ordering of a community. Historians agree that the German employment of the term “policey” during the fifteenth century was based on the French utilisation of the term, and that it was widely used in imperial administration after Burgundy became part of the Habsburg empire; see Andrea Iseli, Gute Policey. Öffentliche Ordnung in der Frühen Neuzeit (Stuttgart, 2009), p. 14/15. The German term “Polizei” as referring to a police force, an executive organ of the state, was used in this sense during the course of the eighteenth century, see Hans Maier, “Polizei,” Handwörterbuch zur Deutschen Rechtsgeschichte, vol. 3, eds. Adalbert Erler and Ekkehart Kaufmann (Berlin, 1984), col. 1803.

12

Introduction

throughout the empire increasingly issued laws to implement notions of good government and proper civic conduct. These laws were frequently justified with the aim to promote “gute policey“, a term which referred both to concepts of a well-ordered government and to the various measures employed to implement these ideas. Based on Aristotelian concepts of what constituted a good government, policey measures were intended to guarantee the Gemeinwohl or “common good” through a series of legislative acts, or “police ordinances” (Polizeiordnungen) which contained rules for personal conduct and community life.27 Several Empire-wide Polizeiordnungen were issued over the course of the sixteenth century and formed the frame of reference for territorial and urban ordinances.28 The number of regional Polizeiordnungen increased during the sixteenth and seventeenth centuries, and were used by governments as a means of claiming authority over communicating rules about appropriate behavior. In view of their major importance, Karl Härter defines policey as a “leading category and a central field of administrative action in the early modern territorial state.”29 From the fifteenth century, religious norms were utilised to augment the role of moral guardians claimed by public authorities in their promotion of

27  See Iseli, Gute Policey, p. 18, and Härter, “Social Control,” p. 41. Research on early modern policey has expanded greatly since the mid-1990s; see for example, Michael Stolleis (ed.), Policey im Europa der Frühen Neuzeit (Frankfurt am Main, 1996); Simon Thomas, “Gute Policey”, Ordnungsleitbilder und Zielvorstellungen politischen Handelns in der Frühen Neuzeit (Frankfurt am Main, 2004). In 1996 a research project was initiated by the Max-Planck-Institut für Rechtsgeschichte in Frankfurt with the aim of publishing registers of early modern German police ordinances; see Karl Härter and Michael Stolleis (eds.), Repertorium der Policeyordnungen der Frühen Neuzeit (Frankfurt am Main, 1996). For examples of regional studies of the implementation of policey ordinances, see Peter Kissling, “Gute Policey” im Berchtesgadener Land. Rechtsentwicklung und Verwaltung zwischen Landschaft und Obrigkeit 1377 bis 1803 (Frankfurt am Main, 1999); Härter, Policey und Strafjustiz; Landwehr, Policey im Alltag; André Holenstein, “Gute Policey” und lokale Gesellschaft im Ancien Régime. Das Fallbeispiel Baden(-Durlach), 2 Bde. (Tübingen, 2003); Johannes Staudenmaier, Gute Policey in Hochstift und Stadt Bamberg. Normgebung, Herrschaftspraxis und Machtbeziehungen vor dem Dreißigjährigen Krieg (Frankfurt am Main, 2012), as well as the volumes published since 1996 in the series Studien zu Policey, Kriminalitätsgeschichte und Konfliktregulierung, Frankfurt am Main. For a succinct introduction into the history and historiography of early modern policey, see Iseli, Gute Policey. 28  See Iseli, Gute Policey, p. 86. For further discussion of imperial police ordinances, see Matthias Weber, “Die Reichspolizeiordnungen von 1539, 1548 und 1577. Historische Einführung und Edition,” Ius Commune Sonderheft 146 (Frankfurt am Main, 2002). 29  Härter, “Social Control,” p. 41.

Introduction

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gute policey.30 The Reformation offered additional legitimation by promoting state responsibility for the moral and spiritual wellbeing of its subjects. Reforms of ecclesiastical institutions in the sixteenth century focused on strengthening parish discipline in Protestant as well as Catholic regions, often directly supervised or indirectly employed by secular officials.31 As historians have also observed, over the long term, ideas of gute policey, expanded their focus in the late fifteenth and sixteenth centuries from the maintenance and enforcement of good Christian behavior, to acquire a utilitarian bent as the early modern period wore on. While Polizeiordnungen regulated church-going and sanctioned ungodly or immoral behavior, these edicts also began to be concerned with the maintenance of a well-balanced economy and the enforcement of a good work ethic. Iseli identifies different aspects of communal life and personal conduct regulated by policey ordinances, including norms regarding behavior in public spaces such as taverns, sumptuary legislation, provisions for the poor and regulations concerning vagrancy, but also norms regarding public health, trade and local economy, the organisation of regional food supplies or provisions regarding infrastructure.32 Policey ordinances prescribed sanctions for behavior that deviated from these norms. Such offenses could be judged in the lower courts, but the boundaries between policey and criminal law were fluid. Certain violations of policey norms increasingly fell within the jurisdiction of criminal courts, for instance, regulations concerning vagrants.33 Karl Härter stresses the overall influence of policey regulations on the development of criminal law, which was “supplemented and refined by territorial and imperial police-ordinances”.34 Policey ordinances also extended the late medieval repertoire of sanctions pertaining to crimes and misdemeanors. While during the sixteenth century, “pecuniary or administrative fines and imprisonment in jail prevailed,” forced labor, houses of correction or military service were 30  In his study of the German city of Nördlingen in the sixteenth century, for example, HansChristoph Rublack has shown how the adoption of religious terminology in the ordinances of the city council during the late fifteenth century culminated in the early sixteenth century in the council’s belief that its actions were religiously motivated; see Rublack, Eine bürgerliche Reformation: Nördlingen (Gütersloh, 1982), pp. 26–30. Bernd Moeller has shown that public authorities gradually acquired or claimed ecclesiastical privileges from the fifteenth century and that they increasingly used religious standards to justify their control, see Imperial Cities and the Reformation. Three Essays (Durham, 1982), p. 46. 31  Schilling, “Confessional Europe,” p. 658. 32  See Iseli, pp. 8, 23, 32 and 57. 33  See Karl Härter, “Social Control,” p. 57. 34  See ibid., p. 44.

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Introduction

added to the catalogue of sanctions during the course of the early modern period.35 These sanctions were increasingly adopted in the judgment of criminal offenses, as “aims defined by the notion of policey” came to shape the treatment of crimes in early modern Germany.36 Beyond punishment of transgressions, gute policey aimed at correction and improvement, the reestablishment of communal relations and the maintenance of good economy. Policey thus offers a key to understanding discrepancies between harsh legal prescriptions and milder sanctions noted by historians, which frequently dominated legal practice and the settlement of homicide in particular.37 Concepts of Policey motivated judges to use their discretion and choose sanctions based on an offender’s potential for correction and his future contribution to the common good.38 In Württemberg, these considerations even resulted in a specific law during the seventeenth century that allowed judges to sanction offenders leniently if a more severe punishment would threaten the future conduct of their business or trade. Gute policey thus frequently influenced the punishment of manslaughter: the social and financial circumstances of a slayer, and the potential threat that a sanction would pose to the the economic stability of his social environment, were important considerations in the choice of punishment. At the same time, concepts of policey had to be reconciled with complex legal norms about rules of evidence and the categorization of crime. In 35  Ibid., p. 46. Härter considers the establishment of houses of correction a good example of the influence of policey regulations on criminal law. Houses of correction were originally established for “offenders against policey ordinances,” a measure which subsequently introduced “modern penal bondage” to the administration of criminal justice; see ibid., p. 47. Härter uses the expression “policification of the criminal law” to capture the increasing influence that concepts of gute policey had on practices of punishment. 36  Ibid. 37  See Härter’s discussion and attending references pertaining to oft-noted constrasts between legal norms and judicial practice, ibid., p. 44. 38  Utilitarian considerations often prompted leniency towards defendants who might contribute to communal welfare after their period of punishment as well as in situations where harsh sanctions might leave the perpetrator and his family destitute, and thus a burden on the community. As Härter formulates: “The imposition or the later mitigation of a penalty were not solely influenced by legal but also by social and fiscal criteria as well as those of policey. The “utility” and “industriousness” of a delinquent, his way of life and his social integration or reputation, his readiness for disciplined behaviour and the informal social control exercised by families, relatives, neighbours and social élites (as demonstrated in the petitions), could considerably influence the decision on the penalty and effect a mitigation. In this respect the process of decision making mirrored the aims of policey.” Ibid., p. 60.

Introduction

15

Württemberg, as in other territories of the German empire, the punishment of crimes occurred within a legal context characterized by what Karl Härter has called “Normenpluralismus” (“plurality of norms”).39 Judges could base their decisions on the imperial criminal code from 1532, the so-called Carolina, but also on territorial ordinances and the juristic literature of the ius commune, which became increasingly important to the legitimation of sanctions during the early modern period.40 In most territories, as in Württemberg, consultations with legal experts preceded the pronouncement of verdicts. The often heterogenous norms and concepts contained in various legal systems rendered the evaluation of crime complex, but also extremely flexible. This study seeks to bridge a divide between a historiographical focus on the social motives behind sanctions in recent work on crime and a focus on normative evidentiary theory that can be found in studies informed by traditional Rechtsgeschichte. Württemberg manslaughter cases demonstrate the importance both of expert legitimation of verdicts and of concepts of gute policey. Lawyers and ducal officials took advantage of the plurality of norms at their disposal. In particular, the discussion in the chapters that follow of legal evaluations, or “consilia”, illustrates how legal parameters of the ius commune could be adapted to principles of gute policey. This analysis adds to recent studies on consilia which emphasize the pragmatism that often characterized these academic evaluations.41 In Zurich, the situation differed, since judges neither used the Carolina nor regularly requested consilia, but based their decisions instead on the city statutes concerning homicide. Yet these legal norms were not only modified several times during the fifteenth and sixteenth centuries, but were also negotiated with pragmatic considerations concerning the promotion of peaceful and economically stable social relations. As a result of these negotiations, manslaughter continued to be punished leniently in both Württemberg and Zurich throughout the sixteenth and seventeenth centuries. Slayers who stood trial in the early modern period nevertheless faced tougher odds than during the late Middle Ages, when monetary sanctions had constituted the standard form of punishment. Legal authorities made subtle differentiations between various forms of manslaughter and imposed a wider range of sanctions. As a consequence, slayers adopted rhetorical strategies that downplayed their responsibility in court. Surviving records from sixteenth- and 39   Karl Härter, “Das Heilige Römische Reich deutscher Nation als mehrschichtiges Rechtssystem,” p. 328. 40  See Härter, “Social Control,” p. 59. 41  See Falk, Consilia.

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Introduction

seventeenth-century Zurich allow for an in-depth analysis of changes in the defense strategies of slayers. Arguments based on a cultural validity of slayings in the defense of honor formed a part of these pleas, but slayers also tried to conform to the civic virtues promoted by state authorities during the confessional age. Policey ordinances promoted norms of civic behavior that idealized quiet, orderly and peaceful conduct. In Reformed Zurich and Lutheran Württemberg, such civic behavior was seen as pleasing to God. In their petitions and pleas, slayers presented themselves as good citizens who had been surprised by unprovoked attacks of their less civically-minded opponents. In return for a consideration of their pleas, they often promised the further faithful execution of their civic duties to please God and the authorities. This analysis contributes to the historiography of the “Cultural Reformation” initiated by historians Craig Koslofsky and Bernhard Jussen. The approach conceives of the Reformation as an ongoing comprehensive cultural and social reordering, and traces religious phenomena in areas which have not traditionally been a part of Reformation history.42 My study traces such phenomena in the speeches and pleas of slayers who tried to conform to governmental norms of virtuous civic behaviour. The subsequent discussions of legal culture and violent death are based on a case-by-case analysis. These case studies demonstrate how the various strategies and goals of all participants in a trial contributed to its outcome. The protagonists in these records are men. Women mostly appear as murderesses in homicide records; manslaughter was a legal concept that presupposed a male slayer, as I will explain below. The sources on which this study of manslaughter are based vary in length and detail, ranging from records covering only half a page in a court book to trial records spanning up to 200 manuscript pages. Differing legal frames of reference influence the language and format of these sources. Zurich’s records are composed in the vernacular and make reference almost exclusively to the city statutes, whereas Württemberg sources alternate between Latin and the vernacular and contain extensive references to the literature of the ius commune. Zurich’s records span a wider time frame, in which the survival of fourteenth- and fifteenth-century cases allow discussions of the late medieval context. The source material chosen for this study cannot claim comprehensiveness: frequent gaps in the Zurich records indicate a loss of source material, while in Württemberg, archivists’ attempts to save space during the eighteenth and nineteenth centuries had resulted in the systematic destruction of sources, so that the manslaughter trial records are incomplete for the early modern period. Yet while these losses render quantitative analyses 42  See Craig Koslofsky and Bernhard Jussen, Kulturelle Reformation. Sinnformationen im Umbruch 1400–1600 (Göttingen, 1999).

Introduction

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difficult, the 896 records which form the basis for this study still provide unique opportunities for thick descriptions. The chapter outline follows both a chronological and a topical order. The first three chapters focus on Württemberg, with the remaining two dedicated to Zurich. The first two chapters on Württemberg explain the development of procedure in manslaughter cases. During the sixteenth century, slayers were allowed to settle homicides with extrajudicial agreements if they could prove that they had lacked intent when they killed their opponent. The first chapter describes the parameters used by government officials when they distinguished between intentional and unintentional slayings, and analyses how slayers and victims’ families participated in this process of decision-making. Although manslaughter was generally prosecuted by means of a trial during the seventeenth century, the chapter discusses the ways in which agreements negotiated alongside trials could influence verdicts. Chapter 2 describes how legal officials chose between a dishonorable and an honorable legal procedure to categorize offenses before the beginning of a trial. Chapter 3 focuses on legal discourses of legitimation: although social concerns often influenced verdicts, evaluations of lawyers and medical experts constituted a crucial part of verdict-finding. Selected case studies illustrate how this expert discourse could be adapted to support considerations of gute policey. Chapter 4 moves the focus of the analysis to the imperial city of Zurich, and traces the influence of customary practices of arbitration on the development of a special trial procedure reserved for the prosecution of manslaughter cases. The concluding chapter concentrates on changes in the rhetoric used by Zurcher slayers in court who by the seventeenth century were increasingly distancing themselves from their deed. Whereas slayers in Zurich had not claimed self-defense during the fourteenth and fifteenth century, but had referred instead to the provocation of their opponent, claims of self-defense or even of diminished intent increased during the early modern period. At the same time, slayers tried to present themselves in accordance with rules of conduct promoted in Reformed Zurich. This discussion of an emerging rhetoric of distancing and reduced responsibility recalls Natalie Zemon Davis’ work on sixteenth-century French pardon tales. Davis relates that slayers could escape the death penalty with the help of a letter of remission, but that they had to adopt a tone in their stories which validated contemporary religious and civic values.43 To set the stage for these succeeding chapters, the remainder of this introduction describes late medieval cultural distinctions and legal developments which constituted important parameters for the early modern judgment of manslaughter. 43  Natalie Zemon Davis, Fiction in the Archives. Pardon Tales and their Tellers in SixteenthCentury France (Stanford, 1987).

18

Introduction

Late Medieval Legal Culture and Violent Death: Parameters of Evaluation

Judicial evaluations of manslaughter during the early modern period resulted from the negotiation of a variety of concepts: legal categories based on customary law and the ius commune, developing governmental notions of civic morality, but also cultural norms regarding honorable and dishonorable behaviour. Honorable violence was a fundamental sign or form of communication in premodern German dispute culture, a means of defending and maintaining identity, especially male identity.44 Honor was thus continuously contested and reclaimed; challenges had to be answered and disputes were fuelled by an ongoing dynamic of “challenge and riposte.”45 Individual status was measured by the amount of “honor” conferred from the outside; and “honor,” as William Ian Miller put it, is “in the eye of the beholder.”46 Disputants tended to act as if honor were a limited resource—one’s gain was another’s loss.47 44  See, for example, Hans de Waardt, “Ehrenhändel, Gewalt und Limininalität,” Michael Frank, “Ehre und Gewalt im Dorf der Frühen Neuzeit: Das Beispiel Heiden (Grafschaft Lippe) im 17. Und 18. Jahrhundert,” in Verletzte Ehre. Ehrkonflikte in Gesellschaften des Mittelalters und der Frühen Neuzeit (Cologne, Weimar, Wien, 1995), pp. 320–338, Burghartz, Ehre, Leib und Gut, p. 153, Katharina Simon-Muscheid, “Gewalt und Ehre im spätmittelalterlichen Handwerk am Beispiel Basels,” Zeitschrift für historische Forschung 18 (1991), 1–32 or Julius Ruff, Violence in early modern Europe, 1500–1800 (Cambridge, 2001), for example, pp. 122–124. 45  See Martin Dinges, “Die Ehre als Thema der Stadtgeschichte. Eine Semantik im Übergang vom Ancien Régime zur Moderne,” Zeitschrift für historische Forschung 16 (1989), 412– 424. For discussions of the dynamics of “challenge and riposte” influencing disputes in honor-based societies, see also Julian Pitt-Rivers, “Honour and social status” in Honour and Shame. The Values of Mediterranean Society, ed. J.G. Peristiany (London, 1966), pp. 19–77, Pierre Bourdieu, “The Sentiment of Honor in Kabyle Society,” ibid., pp. 141–241; Pierre Bourdieu, Outline of a Theory of Practice (Cambridge, 1977), pp. 15–32. The literature focusing on the function of honor in late medieval and early modern European dispute culture is extensive; see, for example, the contributions in Schreiner and Schwerhoff, eds., Verletzte Ehre or in Sylvia Kesper-Biermann, Ulrike Ludwig and Alexandra Ortmann, eds., Ehre und Recht. Ehrkonzepte, Ehrverletzungen und Ehrverteidigungen vom späten Mittelalter bis zur Moderne (Magdeburg, 2011). 46  Miller, Bloodtaking and Peacemaking, p. 31. 47  See ibid. The notion of honor as a zero-sum game has been criticized by Jon Elster, see “Norms of Revenge,” Ethics 100 (1990), 868. Arguments have been made that situations were possible where the honor of both disputants was enhanced. Yet even if we assume that both possibilities can coexist, disputants in medieval and early modern German records tended to be motivated by the fear of losing and the desire to gain honor.

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A late medieval witness statement from Zurich is an example of the cultural script that guided the dynamics of fights centered on the defense of honor. A witness named Valkenstein told the council that “Heini Brügglin said to Neisideller, “you fucking bastard, you won’t deny what you said,’ ” and that Neisideller then answered with a challenge: “if you have a problem, just do something about it”, whence “Brügglin drew his sword and stabbed Neisideller.”48 It was important not only to requite, but to top the opponent’s insult so that the use of violence was often a matter of course. Contestants frequently exhausted their verbal weapons quickly and preceded to the stage of physical violence.49 A Württemberg housewife’s description of her husband’s fight with the village mayor illustrates an equally short road from insults to violence. In her 1495 letter of supplication to the duke on her husband’s behalf, she merely stated that the bailiff insulted her husband, who got angry in turn whence the dispute become violent.50 According to Southern German and Swiss medieval laws, it was important to prove that the Anlass (“cause”) lay with the opponent.51 Although descriptions of fights in legal records often contain little detail, they centered on this point and conveyed that a slayer had reacted to a verbal or physical provocation. Judges distributed fines according to their evaluation as to whose actions had provided the Anlass. Only violence that was a response to an Anlass could be considered honorable. Such violence was usually punished leniently, i.e. with monetary fines rather than corporal sanctions. Sanctions were not always bestowed equally on disputants, but also depended on the disputant’s sex. Honorable violence was the prerogative of men. This does not mean that women did not use violence to defend their honor. In her study of delinquency in late medieval Zurich, Susanna Burghartz has shown that both women and men were active guardians of their honor. Women fought other men and women or insulted them to defend or maintain 48  StaZH B VI 191, fol. 141v, 1381, According to the witness Valkenstein, Bruegglin said: “du verhitter lotter, du solt die red nit lögnen, die du gerett hast,” and Neisideller retorted: “gebrist du ützit, so tůst es d dazů. Des zuckt H. Brüggeli sin swert und stechet gegen dem Neisideller …” 49  As Susanna Burghartz highlights, disputants also made use of a “restricted code” of gestures and insults; see Ehre, Leib und Gut, p. 125. See also Hans-Jörg Gilomen, “Soziale Beziehungen im spätmittelalterlichen Zürich: neue Forschungen,” Traverse: Zeitschrift für Geschichte = Revue d’histoire Band 9, Heft 2 (2002), 15. 50  See HstA A 602, WR 14962. 51  Christoph Riggenbach, “Die Tötung und ihre Folgen: Ein Beitrag zur alamannischschweizerischen Rechtsgeschichte im Mittelalter,” Zeitschrift der Savigny Stiftung für Rechtsgeschichte Germ. Abt. 49, Heft 1 (1929), 139.

20

Introduction

their honor and also appeared in front of the courts to sue for such insults.52 Yet women are generally missing from the ranks of slayers convicted of manslaughter. There are numerous cases of disputes among women which turned into fistfights, often resulting in heavy injuries, but if such fights ever resulted in deaths they generally went unrecorded and were probably settled between the responsible males of the families. It is important to note, however, that these cultural distinctions were not absolute, but could be deconstructed. I have found one case from late sixteenth century Zurich of a female slayer, a woman who was punished like her male counterparts who had committed a manslaughter, with the result that she had to pay a monetary fine and negotiated a settlement with the victim’s family.53 Although this evidence is singular, as far as the Zurich material is concerned, the case at least suggests that the category of manslaughter could be applied to female slayers, and that such slayings might have been settled extra-judicially, even if they were not usually officially noted. Unfortunately, the lack of detail in the source makes it impossible to speculate about the reasons why this case was brought before the court, and thus set down in record. More often, however, women might appear as protagonists in murder cases. The case of Elfy Gugerin illustrates that a woman who participated in a homicide had to pay a high price. Elfy had conspired with her lover in the slaying of her husband. Her crime was doubly dubious. Women’s honor was closely bound up with how well they were able to keep their sexual purity intact. An adulterous wife who killed her husband was a monstrosity, and equally monstruous was the punishment dealt out to her. In Elfy Gugerin’s case, she had counseled her lover to kill her husband, and was sentenced to be buried alive. A hole was first dug in the ground and covered with foot-long thorns. Elfy was placed on the thorns, another layer of thorns was put on her, and then she 52  For a discussion of this matter, see Susanna Burghartz, Leib, Ehre und Gut, pp. 142–146, 153 and Sibylle Malamud, Die Ächtung des Bösen. Frauen vor dem Zürcher Ratsgericht im späten Mittelalter (1400–1500) (Zurich, 2003). For an early modern example of a discussion of women’s defenses against insults to their honor see Scott Taylor’s study on early modern Spain, in which he modifies Pitt-Rivers’s study on female honor in the Mediterranean. Pitt-Rivers has argued that female honor was passive, bound up with a woman’s sexuality, whereby its violation constituted an insult to her whole family. It was the task of men to avenge this insult. Taylor shows, however, that female honor was more widely defined even in the Mediterranean, and that women could actively engage in defending their honor through insults and slanderous gossip; see Scott Taylor, “Credit, Debt, and Honor in Castile, 1600–1650”, Journal of Early Modern History 7, 1–2 (2003), 1–27. 53  See StaZH A 17.1, May 18, 1569.

Introduction

21

was crushed with stones, the thorns penetrating her body.54 Men who violated women’s bodies could expect relative leniency. Judges did not claim the same prerogative to judge the injured bodies of women as they did those of men, and took little initiative to investigate such cases on their own. For example, Burghartz cites a case from 1385, in which a woman accused a man for beating her in her own house even though she had done nothing to provoke him, ended without a conviction.55 One explanation might lie in the fact that the judges did not consider it their responsibility to pursue violence against women to the fullest, because the bodies of women were primarily the responsibility of their male relatives. Men were ceded a large amount of control over their wives, sisters, and daughters, and had the legal right to use violence to punish them.56 A telling example of this right is the legal regulation of adultery in Zurich, which stated that a husband could kill his wife and/or her lover with impunity if he came across them in flagranti.57 Besides masculinity, there were other prerequisites of the honorable slayer. His violence had to conform to cultural distinctions between secret and open deeds; secrecy was associated with dishonorable behaviour and openness with honorable.58 Since honor was conferred on individuals by others, it was only possible to escape the damaging effect of an insult if vengeance was taken openly or at least made publicly known afterwards.59 To escape being named a murderer, a slayer had to publicize his deed by announcing it to the family of the victim, thereby allowing the opportunity for vengeance. During the early Middle Ages, the Lex Salica required the slayer either to put the corpse on a scaffold, hang it on a gallows, throw the mutilated body on the ground near a cross-roads, or cut off and display its head on a pole near a thoroughfare. The 54  See StaZH, B VI, 198, fol. 40v. 55  See Burghartz, Leib, Ehre und Gut, p. 144. 56  See ibid., p. 142. 57  See, for example, StaZH VI 244, fol. 111r and Eduard Osenbrüggen, Das alamannische Strafrecht im deutschen Mittelalter (Schaffhausen, 1860), p. 72. 58  The distinction between secrecy and openness marked a divide between dishonor and honor in different medieval European cultures. For example, in his article on theft in early medieval society, Theodore Andersson demonstrated how shame and dishonor were attached to secret thefts, whereas the robber who committed his crime openly was not stigmatized, “The Thief in Beowulf,” Speculum 59 (1984), 493–508. 59  See William Ian Miller, “Dreams, Prophecy and Sorcery: Blaming the Secret Offender in Medieval Iceland,” Scandinavian Studies 60 (1988), 101: “After all, how was the community to know a person had avenged the smears on his name unless he let others know he had done so?”.

22

Introduction

law imposed penalties on anyone who interfered with this process by removing the body or head.60 Early medieval laws even called a homicide a murder if the slayer had hid the corpse by submerging it or covering it with foliage.61 The importance of publicity endured, even after the legal definition of murder was no longer limited to the hiding of the body. A good example is a case from Zurich from 1383, where the slayer Chuni Torman announced his unwitnessed slaying of Jo. Graf. As a witness testified, Chuni Torman had told him on the day of Graf’s death that “someone was lying on the mountain, whom he had killed. What had happened to him [the dead man] had been done by him and no one else.”62 In later legal compilations, the emphasis is mostly no longer on the actual hiding of the body, but rather on the secretive—and therefore reprehensible—disposition that accompanied murder, such as denial and treachery. 60  See Friedrich Mezger, “The Publication of Slaying in the Saga and in the Nibelungenlied,” Arkiv för Nordisk Filologi 61 (1946), 221. The Old Saxon version of the story of Cain and Abel likewise emphasizes the secrecy as the reprehensible aspect of the fratricide, evident in the fact that the author embellishes Cain’s denial of his deed. He also describes how Cain left Abel in a deep valley on the seashore, a possible allusion to the two ways murder is defined in the Lex Salica, hiding of the body in the earth or in water; see Ute Schwab, Die Bruchstücke der altsächsischen Genesis und ihrer altenglischen Übertragung: Einführung, Texte, Wiedergabe und Übersetzung. Abbildung der gesamten Überlieferungen (Göppingen, 1991), p. 59. A famous example of a literary rendering of the equation between honorable violence and openness is a scene from the Nibelungenlied. In this scene, Hagen announced the slaying of the hero Siegfried by depositing the corpse in front of the chamber of his victim’s wife. 61  See Heinrich Brunner, Deutsche Rechtsgeschichte, vol. 2, (Leipzig, 1892), p. 628. As he explains, in some of these these codes death actually preceded murder, see ibid. Brunner refers here to a clause in an emendation to the salic law, which refers to an offender who “… occiserit et in mordrem miserit.” See K.A. Eckhardt, Pactus legis Salicae, MGH LL. Nat. Germ 4, 1, (Hannover, 1962), p. 273. 62  StaZH B VI 192, 1383: “… dz einer an dem berg leg, den hetti er geslagen und wz dem beschechen wer, dz hett er getan und nieman anderen.” Another example of the killer announcing his deed, although more indirectly, is a Zurich case from 1376, in which Claus Oeninger killed Claus Boescher. The witness Jo. Kung told the council that Oeninger, after a tavern dispute with Boescher which spilled into the street, “re-entered the house with a drawn sword that was bloody, and the said Claus Oeninger said, go down the street, Claus Boescher is lying there stabbed” (“… do kam Claus Oeninger wider in die stuben mit bloessem swert, und wz dz bluotig, und sprach der selb Claus Oeninger, gand abhin, Claus Boescher lit da nidnan und ist erstochen”) (StaZH B VI 190, fol. 85r). The verdict suggests that Oeninger fled immediately afterwards. Even though Oeninger did not directly admit to having killed Boescher, his reappearance in the tavern with a bloody sword to alert the company to the dying man may be considered tantamount to an announcement of the killing.

Introduction

23

The Schwabenspiegel, a widely-circulated southern German private compilation of laws from the late thirteenth century, offers the following definition of murder: “A murderer is someone who denies that he killed a man … We also call those murderers who eat and drink with someone and greet him and then kill him without a cause.”63 According to late medieval laws of cities in Southern Germany, homicides also qualified as murder because they indicated a treacherous disposition of the slayer: killings that violated the house peace or a sworn peace between opponents, or the killing of a guest.64 A mercenary motive was likewise considered reprehensible and could lead to a slaying being classed as murder in the high and late Middle Ages.65 These distinctions between honorable and dishonorable violence coexisted with legal norms and prescriptions that aimed to guard the peace. Late medieval government authorities issued norms and measures to stem the tide of violence. There was a legal norm that required disputants to heed demands for peace, and which was enshrined in territorial and urban laws throughout the empire.66 In Zurich this legal custom was called “Stallung.”67 By law, every Zurich citizen who witnessed a fight was obliged to intervene and ask the opponents to promise Frieden (“peace”) or Stallung (“to still or quiet a fight”; the Swiss sources use both terms interchangeably). Stallung was a unique legal state. It was a truce, a state of suspended hostile animation, comprising neither war nor final settlement. Any further hostilities, whether verbal or physical, would break the Stallung. And breaking Stallung was expensive. Wounds and insults given “over the Stallung,” as the sources refer to it, were punished 63  Karl August Eckhardt, ed., Studia Iuris Suevici I. Urschwabenspiegel (Aalen, 1975), p. 459: “Morder haissent wir die swer ain mensche toedet und des lŏgent … wir haizent ŏch daz morder swer mit dem andern isset und trinket und in guetlich gruezet schleht er in ane schulde daz ist ain mort …” The Schwabenspiegel (“Swabian mirror”) was a thirteenth-century Southern German adaptation of the Sachsenspiegel, the most influential vernacular law manual in medieval Germany. 64  See Allfeld, Die Entwicklung des Begriffes Mord, pp. 77–82. 65  A gloss of the Sachsenspiegel defined a murderer as someone who killed another to acquire his goods; see ibid, p. 66. A murderer was also someone who did not follow the rules of an open fight, for example, by using unusual or forbidden weapons such as a dagger or a mace; see Rudolf His, Das Strafrecht des deutschen Mittelalters. Zweiter Teil. Die einzelnen Verbrechen (Weimar, 1935), p. 89/90. 66  See Joachim Eibach, “Institutionalisierte Gewalt im urbanen Raum: “Stadtfrieden” in Deutschland und der Schweiz zwischen bürgerlicher und obrigkeitlicher Regelung (15.–18. Jh.),” in Gewalt in der frühen Neuzeit, ed. Claudia Ulbrich (Berlin, 2005), p. 189. 67  See Susanne Pohl, “Uneasy Peace. The Practice of the Stallung Ritual in Zurich, 1400– 1525,” Journal of Early Modern History 7 (2003), 28–54.

24

Introduction

with a higher fine than those given outside the Stallung state. A killing that violated a Stallung was treated as murder and punished with the death penalty. The state of truce officially ended only when the disputants “drank it off”: after a formal toast the Stallung state was suspended. It is important not to imagine the legal requirement of Stallung in necessary opposition to the requirements of a code of honor which demanded retaliation rather than peacemaking. In legal practice, these behavioral guidelines were often intertwined; the course of a Stallung ritual could, for example, become subordinated to the rules governing the dynamics of challenge and riposte. A Zurich case from 1410 illustrates that a demand for Stallung could actually be considered an insult and a challenge. When Cuni Snider felt threatened by Hensli Snider, his acquaintance Hans Nuessboem acted as a peacemaker. Consequently, Nuessboem demanded Stallung from Hensli Snider on Cueni’s behalt. Hensli, however, did not take this interference kindly: he had, he said, no quarrel with Cueni. Nuessboem persisted. After he had demanded Stallung for the third time, Hensli Snider lost his patience and cursed “samer box zers,” he did not want to give him Stallung.68 Enraged by this insult, Nuessboem attacked and a fight ensued. The course of a Stallung ritual could also be influenced by a peacemaker’s ties of loyalty and friendship. If he was friends with one of the contestants, he could escape this dilemma and subvert the Stallung rule by playing on the factor of time and waiting until his friend had the upper hand. In 1451, a peacemaker was accused for taking Stallung unfairly because he did not demand the peace from all contestants. When a bystander called him on this, he retorted: “If you think that we are taking Stallung unfairly, then why don’t you do it yourself!”69 In consequence of this heated exchange, both abandoned any effort at peacemaking, and began to hit each other until Stallung had to be taken from them. Although the city council condemned such manipulations of the Stallung ritual, offenders were often punished leniently. The balance between an official tolerance towards honorable violence and governmental efforts to protect the peace was adjusted in each legal interaction according to the context. The development of the prosecution of manslaughter was constituted by similar negotiations.

68  StaZH BV VI 200, fol. 95r, 1410. Box (God’s) zers was a strong insult. Zers referred to a man’s genitals. 69  StaZH B VI 217, 190v, 1451. “Bedunket dich das wir nit recht gescheiden habind, warum bluff du nit selb hinzu und scheidt selb.”

Introduction



25

Prosecution and Punishment

Early medieval laws allowed the relatives of victims to claim monetary payments indicated by exact wergild tariffs.70 From the early Middle Ages, rulers had also claimed a share in the atonement of homicide by means of a monetary fine.71 However, imperial land-laws in the high and late Middle Ages frequently punished homicide harshly, with exile or the death penalty, thus robbing private parties of their customary right to exact retribution from the slayer.72 Nonetheless, the implementation of such regulations depended on regional laws and customs. The imperial estates, nobles, prelates and imperial cities possessed significant legal privileges, which allowed them to issue 70  See Brunner, Deutsche Rechtsgeschichte, vol. 2, pp. 612–623 or W. Schild, “Wergeld,” Handwörterbuch zur Deutschen Rechtsgeschichte, vol. 5, eds. Adalbert Erler and Ekkehart Kaufmann (Berlin, 1998), cols. 1268–1271. For a discussion of both tolerance and partial restriction of blood vengeance in early medieval legislation, see Frauenstädt, Blutrache, pp. 7–14, Brunner, Deutsche Rechtsgeschichte, vol. 2, pp. 527–531, W. Preiser, “Blutrache,” Handwörterbuch zur Deutschen Rechtsgeschichte, eds. Adalbert Erler and Ekkehart Kaufmann, vol. 1 (Berlin, 1971), cols. 459–461 or Christine Reinle, “Fehde,” Handwörterbuch zur Deutschen Rechtsgeschichte, 2nd. Edition, vol. 1, eds. Albrecht Cordes, Heiner Lück, Dieter Werkmüller and Ruth Schmidt-Wiegand (Berlin 2008), col. 1516. For a discussion of feud in relation to vengeance killing, see Albrecht Cordes, “Blutrache,” Handwörterbuch zur Deutschen Rechtsgeschichte, 2nd edition, vol. 1, eds. Albrecht Cordes, Heiner Lück, Dieter Werkmüller and Ruth Schmidt-Wiegand (Berlin 2008), col. 623 and Miller, Bloodtaking and Peacemaking, p. 179, who analyses these terms in the context of anthropological literature. The term feud usually refers to the noble feud which developed during the High Middle Ages. The feud followed certain formal rules (i.e. it had to be announced and acknowledged), could ignite over almost any disagreement and could include killing but also other drastic measures, such as arson or robbery. It was restricted to the class of knights, although as entities, cities engaged in feuds as well, and non-nobles, e.g. peasants, also practiced the feud without legal legitimation. See e.g. Christine Reinle, “Fehdewesen,” http://www.historisches-lexikon-bayerns.de/artikel/artikel_45339, by the same author: Bauernfehden. Studien zur Fehdeführung Nichtadeliger im spätmittelalterlichen römischdeutschen Reich, besonders in den bayerischen Herzogtümern. Vierteljahresschrift für Sozial- und Wirtschaftsgeschichte. Beiheft 170 (Stuttgart, 2003), Herbert Obenaus, Recht und Verfassung der Gesellschaften mit St. Jörgenschild in Schwaben. Untersuchung über Adel, Einung, Schiedsgericht und Fehde im fünfzehnten Jahrhundert (Göttingen 1961). 71  See Brunner, Deutsche Rechtsgeschichte, vol. 2, p. 631 and p. 621 for a general discussion of fines in early medieval laws. 72  See Allfeld, Die Entwicklung des Begriffes Mord, p. 63/64 and His, Das Strafrecht des deutschen Mittelalters. Zweiter Teil, p. 80.

26

Introduction

their own laws and develop their own legal systems.73 Most regions tolerated a non-capital manslaughter and allowed the kin of the deceased a right to private compensation with local governments often requiring the slayer to pay a fine.74 In some areas, laws prescribed the death penalty only for slayers who were apprehended on the spot and “red-handed” (handhafte Tat).75 Those who escaped could generally avoid the death penalty. Asylum aided the strategy of flight. Churches, but also various secular spaces granted safety to slayers for a time.76 Slayers could use this time to apply for a safe conduct to their trial or negotiate an agreement with the victim’s kin.77 The escape of a slayer was often anticipated in medieval German law. The city law of Bamberg, for example, even advised citizens to flee immediately to an asylum after a slaying.78 Trials were traditionally initiated by private parties, on whom also fell the burden of proof. In the traditional accusation procedure, the slayer was allowed to clear himself with oath helpers, and under certain circumstances a duel was permitted.79 With the increasing influence of canon law, authorities gradually began to initiate proceedings ex officio, and other methods of proof, such as witness testimony and confession, came to coexist with more traditional

73  During the course of the Middle Ages, German kings ceded many privileges and grants of immunity to German nobles, prelates and imperial cities in order to gain their support in their struggle to maintain and strengthen their position within Europe, see Malte Prietzel, Das Heilige Römische Reich im Spätmittelalter (Darmstadt, 2004), p. 1. By the early modern period, the imperial estates possesed independent powers of jurisdiction; see, for example, Härter, “Das Heilige Römische Reich deutscher Nation als mehrschichtiges Rechtssystem,” p. 328. 74  See His, Das Strafrecht des deutschen Mittelalters, Zweiter Teil, pp. 81–85. 75  See ibid. 76  See Paul Frauenstädt, Blutrache und Totschlagssühne im Mittelalter. Studien zur Deutschen Kultur- und Rechtsgeschichte, (Leipzig, 1881), p. 51. Among such asylums were farmhouses or squares within a city, whilst even a particular bench in a tavern might have the power to give asylum; see ibid., p. 58. 77  See His, Das Strafrecht des deutschen Mittelalters, Zweiter Teil, pp. 81–82. A safe conduct protected the slayer from the vengeance of the injured family, as well as from arrest prior to and during the trial and frequently also from corporal punishment. Safe conducts will be discussed in further detail in both Chapters 1 and 2. 78  See ibid., p. 76, fn. 84. 79   See Winfried Trusen, “Strafprozeß und Rezeption. Zu den Entwicklungen im Spätmittelalter und den Grundlagen der Carolina,” in Strafrecht, Strafprozess und Rezeption. Grundlagen, Entwicklung und Wirkung der Constitutio Criminalis Carolina, eds. Peter Landau and Friedrich-Christian Schroeder (Frankfurt am Main, 1984), p. 54.

Introduction

27

methods.80 Whether initiated ex officio or by private accusation, injured parties in manslaughter cases could usually expect financial compensation which was frequently negotiated extrajudicially.81 The boundaries between legal and arbitration proceedings were often quite fluid. At times, trial proceedings could, for example, be interrupted if the parties had reached an agreement.82 The extrajudicial atonement for homicide often followed a set protocol, although details could vary according to region. Despite the Christian condemnation of violence, ecclesiastics contributed greatly to the development of certain ritualized forms which the negotiated settlement of homicide acquired in the course of the late Middle Ages. Although the Christian recognition of such settlements indirectly validated the customary leniency toward honorable slayers, the Church gained the chance to help in shaping customs of pacification. The Totschlagssühne, or manslaughter penance, combined secular and ecclesiastical strategies of conflict resolution. Its arbitrators were often priests, frequently joined by a secular member of good social standing within the community.83 The Totschlagssühne usually involved a monetary 80  The origins of the ex officio-initiated Inquisitionsprozess have been subject to a long and heated debate among German historians who disagree whether it was introduced as a result of the reception of Roman law in the sixteenth century or whether it was an indigenous German development, a thesis advanced by Eberhard Schmidt in his work Einführung in die Geschichte der deutschen Strafrechtspflege (Göttingen, 1951). Historians nevertheless agree that both ex officio proceedings and changes in methods of proof (including the use of torture) appeared in Germany long before the sixteenth century. John Langbein suggested that this development was promoted by the influence of canon law in medieval Germany, and this theory has found widespread acceptance; see his Prosecuting Crime in the Renaissance. England, Germany, France (Cambridge, 1974). See also Winfried Trusen, “Der Inquisitionsprozeß. Seine historischen Grundlagen und frühen Formen,” Zeitschrift für Rechtsgeschichte Kanonistische Abteilung 74 (1988), 168–230, and by the same author, “Strafprozeß und Rezeption,” pp. 29–118. 81  See Frauenstädt, Blutrache, pp. 93–102 and p. 125, for a discussion of procedure in medieval manslaughter cases. 82  See Frauenstädt, Blutrache, pp. 102–102. 83   See also Bernhard Losch, Sühne und Gedenken. Steinkreuze in Baden-Württemberg (Stuttgart, 1981), p. XII. The role of priests in this matter was part of a wider influence of the medieval Church on extra-judicial processes of peacemaking. For example, Bader has demonstrated that arbitrated settlements modelled on canon law arbitration procedure were widely used to resolve civil disputes in late medieval southern Germany and the Swiss Confederacy. This specific arbitration procedure was only used to resolve civil conflicts. Bader attributes the increase of arbitrated settlements to an influence from Italy, where canon law procedure was in use

28

Introduction

compensation and provisions by the slayer for the soul of the deceased. At the core of the Totschlagssühne was the formal ritual of reconciliation between the parties which issued from public ecclesiastical penances.84 These negotiated settlements usually bound slayers to a number of conditions. The aforementioned slayer Hans Merckh, for instance, was made to pay for a stone cross in memory of the deceased. In addition to a substantial sum to be paid to the victim’s kin, he also had to pay for an annual mass for the spiritual welfare of the deceased and to honor the funeral of the victim with solemn ceremonies.85 When the time for the funeral came, Hans Merckh and his four brothers (who were also implicated in the homicide) had supplied 250 candles which they and the members of the community who followed the processions carried.86 Merckh led the procession, walking barefoot up to the victim’s grave.87 When the procession arrived at the burial place, the slayers were required to lie cross-wise on the open grave until the father of the victim gave them a sign to stand up and formally reconcile with them. Victims’ relatives were apparently occasionally prone to lengthen this episode by playing on the factor of time, perhaps when sentiments of vengeance dominated over those favoring reconciliation: the agreement stipulated that in case the victim’s father took too long to give this sign, a priest was allowed to give it and thus hasten this by the middle of the twelfth century; see Karl Siegfried Bader, “Arbiter arbitrator seu amicabilis compositor,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, vol. 46, Heft 1 (1960), 239–276. 84  According to Frauenstädt, the ritual was influenced by the development of public ecclesiastical penance and dishonorable punishments in the early Middle Ages; see Blutrache, p. 118. 85  See Jänichen, “Schwäbische Totschlagssühnen,” pp. 136–139. 86  Their candles were not lit, which constituted a sign of contrition; in other cases, the slayer’s candle might be broken or carried upside down. In addition to the candle, slayers could also be required to carry the murder weapon during the penance procession; see ibid., p. 137. Stipulations varied according to status. The number of persons who participated in the burial ceremonies could vary considerably. Frauenstädt reports that in an agreement from 1383, the slayer of a noble victim had to kneel at the bier with 200 noble knights and their servants; see Blutrache, p. 122. By contrast, Frauenstädt argues that there were commonly no more than 30 participants when the victim was not of noble status; see ibid., p. 152. For a general discussion of the variety of possible stipulations in agreements, see ibid., pp. 105–173. 87  He and his brothers were also required to wear a “Klagkappe,” a black hood that was drawn over the face to indicate grief. Other agreements might stipulate that the slayer walk half-naked or wear garments symbolizing penance; see Jänichen, “Schwäbische Totschlagssühnen,” p. 137.

Introduction

29

reconciliation.88 During the ritual of the Totschlagssühne, the balance between the desire for the restoration of peace and the desire for blood vengeance was often likely to be a fragile one.89 Agreements also aimed at forestalling further hostilities by specifying public spaces where the slayer had to get out of the way of the victims’ family if he met them there. Hans Merckh was required to avoid the relatives in taverns, in church and on the road.90 During the course of the late medieval period, agreements in manslaughter cases were affected by a process of governmental “centralization of judicial and punitive powers.”91 The line between extrajudicial and judicial justice increasingly blurred, as city councils or territorial rulers began to insert themselves into the process of arbitration, for example, by officially recording these settlements. In Merckh’s agreement and others from the fifteenth century, the fine that the slayer had to pay to the court was recorded next to the other stipulations.92 The growing centralization of criminal justice was accompanied and supported by the gradual influence of the ius commune, which had consequences not only for the customary prosecution of manslaughter, but also impacted traditional parameters of evaluation.

88  See ibid., p. 138. 89  We have little historical evidence to indicate how such rituals affected the social status and position of the slayer. It is possible that these rituals could work to his advantage. A public demonstration of penitence might, for example, shame a reluctant relative into forgiveness. Nevertheless, the Church had succeeded in developing rituals in which a honorable slayer had to publicly abase himself. See Mary C. Mansfield, The Humiliation of Sinners. Public Penances in Thirteenth-Century France (Ithaca and London, 1995), for a discussion of the humiliating aspect of public penances. However, not all aspects of the Totschlagssühne were equally humiliating. For example, pilgrimages—which were also often required from slayers, must, for example, be exempted from such a characterization as slayers were not always required to undertake them themselves, but could rather send a substitute; see Frauenstädt, Blutrache, p. 164. 90  See ibid., p. 139. Such stipulations were especially frequent and detailed in late medieval agreements from northern Germany and the Swiss Confederacy. See Frauenstädt, Blutrache, p. 130 and Osenbrüggen, Das alamannische Strafrecht, p. 28. 91  See Karl Härter, “Social Control”, p. 49. 92  See Jänichen, p. 139. For futher discussion of the growing governmental control of the Totschlagssühne, see, for example, J. Friedrich Battenberg, “Seelenheil, gewaltsamer Tod und herrschaftliches Friedensinteresse. Zur Auswirkung eines kulturellen Codes auf die Sühne- und Strafpraxis der vormodernen Gesellschaft,” in du guoter tôt. Sterben im Mittelalter—Ideal und Realität, ed. Markus J. Wenninger (Klagenfurt, 1998), p. 361.

30

Introduction

The Ius Commune: Honorable Manslaughter as Excess The gradual insertion of the ius commune into late medieval German jurisprudence is referred to as the Rezeption des römischen Rechts (“reception of Roman law”).93 The ius commune that influenced German legal practice was mostly based on the interpretation of Roman and canon law as it was taught at Italian universities. Italian jurists had studied and interpreted Justinian’s Corpus Juris Civilis since the eleventh century. This early interpretation of Roman law by the so-called “Glossators” was succeeded in the fourteenth century by a new school, the so-called “Commentators” (or “Post-glossators”) whose approach to Roman law was more practice-oriented.94 These Commentators, who themselves often represented clients or advised judges, discussed the relationship of Roman law “to the informally gathered statutes of Italian city-states” and developed legal concepts based on both Roman and canon law, which could be applied to specific cases in Italian courts.95 The German process of Rezeption is commonly divided into two principal stages: the Frührezeption (“early reception”), from the thirteenth to the fifteenth century, and the Vollrezeption (“full reception”), from the late fifteenth to the sixteenth century.96 The Frührezeption began when German students, initially mostly clerics, traveled to Italy to study canon law and to profit from the revival of systematic Roman law studies at Italian universities. As a consequence of this development, the Italian approach to Roman and canon law became increasingly influential within German law faculties.97 Roman civil 93  See Schnabel-Schüle, Überwachen und Strafen im Territorialstaat, p. 216. For an introduction to the extensive historiography of the Rezeption, see her accompanying references, e.g. Winfried Trusen, Anfäge des gelehrten Rechts in Deutschland. Ein Beitrag zur Geschichte der Frührezeption (Wiesbaden, 1962) or Helmut Coing, Die Rezeption des römischen Rechts in Frankfurt am Main (Frankfurt am Main, 1962). 94  See Peter Apathy, Georg Klingenberg and Martin Pennitz, Einführung in das römische Recht (Cologne, Weimar, Vienna, 2016), p. 26 and Gerald Strauss, Law, Resistance and the State. The Opposition to Roman Law in Reformation Germany (Princeton, 1986), p. 66. Influential Italian Commentators included Bartolus de Sassoferrato (1313–1357) and Baldus de Ubaldis (1327–1400). The writings of Italian Commentators were adapted and interpreted by lawyers in other countries including Spain, the Netherlands, France and, starting in the sixteenth century, by German jurists. 95  Strauss, Law, Resistance, and the State, p. 66. 96  See Schnabel-Schüle, Überwachen und Strafen im Territorialstaat, p. 40. 97  See Strauss, Law, Resistance and the State, p. 67. This Italian approach held Roman law (along with Church law) as the “common system of justice for all countries formerly part of the Roman empire. When local statutes gave no basis for judgment, this law was to

Introduction

31

law was studied alongside canon law, since a fully trained jurist was increasingly expected “to have degrees in both kinds of law.”98 Clerical and—from the fifteenth century—increasingly non-clerical jurists promoted the influence of the ius commune beyond the universities and carried this approach into legal practice.99 Jurists worked as notaries or clerks for “bishops, monasteries or cathedral chapters,” and were employed by city councils or German princes.100 As Strauss highlights, the ius commune appealed to local rulers as well as German emperors looking for ideological justification for their claims to jurisdictional authority from the late medieval period.101 An important milestone of the Vollrezeption occured in 1495 when the Imperial Chamber Court [Reichskammergericht] was founded. As the empire’s highest court of appeal, its judges were ordered to make their decisions in accordance with the ius commune.102 be called on as subsidiary or underlying” (ibid., p. 66). Opposed to this mos italicus, was another approach to Roman law, referred to as the “French manner,” the mos gallicus. It was mainly espoused by humanists who regarded Roman law primarily as a subject of scholarly interest, to be viewed in the context of the study of antiquity rather than as a living law with practical application, see ibid. 98  Strauss, Law, Resistance, and the State, p. 68. 99  See ibid., p. 67. 100  Ibid. and p. 68. 101  See ibid., p. 71. Strauss translates a quote from the legal historian Helmut Coing who argued that the ius commune “reflected the legal system of an absolute though not arbitrary monarchy, which was also autonomous, not to say dominating, vis-a-vis the Church. Moreover, it containted the principles of a tightly centralized bureaucratic state …”; see ibid. 102  See Karl Härter, “Das Heilige Römische Reich deutscher Nation als mehrschichtiges Rechtssystem,” p. 329 or Strauss, Law, Resistance and the State, p. 65. The imperial chamber court was established in the context of the so-called Reichsreform (“imperial reform”) between ca.1410 and 1555, a term referring to ongoing negotiations between the German emperors and the imperial estates over the constitutional order of the German empire. For further reading, see Heinz Angermeier, Die Reichsreform 1410–1555. Die Staatsproblematik in Deutschland zwischen Mittelalter und Gegenwart (München, 1984). Extensive literature has been published in recent years on the Reichskammergericht and its judicial practice. See, for example, Annette Baumann, Peter Oestmann, Stephen Wendehorst et al., eds., Prozesspraxis im Alten Reich. Annäherungen—Fallstudien—Statistiken (Cologne, Weimar, Vienna, 2005), Sigrid Jahns, Das Reichskammergericht und seine Richter. Verfassung und Sozialstruktur eines höchsten Gerichts im Alten Reich (Cologne, Weimar, Vienna, 2003), Bernhard Diestelkamp, Vom einstufigen Gericht zur obersten Rechtsmittelinstanz (Cologne, Weimar, Vienna, 2013) and the remaining volumes in the extensive series Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reich, published by böhlau Verlag since 1983.

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The initial emphasis on civil law was gradually complemented by an increasing influence of Italian lawyers’ interpretations of criminal law based on parts of Justinian’s Corpus Iuris Civilis, mainly the Digest, and on canon law. During the fourteenth century, ius commune-based criminal law was made available to the larger public through vernacular law manuals.103 During the process of the Vollrezeption, criminal law based on the ius commune was promoted on the imperial level. In response to a call for legal reform from the judges of the Reichskammergericht, the imperial diet decided upon the creation of a new, more comprehensive imperial criminal legislation based on Roman law.104 By 1532, these calls for reform had produced the Constitutio Criminalis Carolina, commonly referred to in the historiography as Carolina, which became a model for future German territorial criminal legislation.105 The Carolina contained 103  One such manual was the Rechtssumme of Brother Berthold of Freiburg, a vernacular, fourteenth-century translation of excerpts from canon law passages on crimes which had been strongly influenced by Roman law. (For a modern edition, see Georg Steer, ed., Die ‚Rechtssumme‘ Bruder Bertholds. Eine deutsche abecedarische Bearbeitung der ‚Summa confessorum‘ des Johannes von Freiburg. Synoptische Edition der Fassungen B, A und C (Tübingen, 1987). Through numerous, widely circulating manuscript copies, the Rechtssumme became one of the most widely-used vernacular law books in the late Middle Ages; see Daniel Schäfer, Texte vom Tod. Zur Darstellung und Sinngebung des Todes im Spätmittelalter (Göppingen, 1995), p. 337. See ibid., p. 336, for a discussion of the treatment of homicide in the Rechtssumme. Other manuals were the Klagspiegel and the Layenspiegel, both from the fifteenth century, which consisted of a translation of passages from Canon law and Roman law. For a discussion of the Klagspiegel, see Andreas Deutsch, “Klagspiegel (Conrad Heyden)”, in Lexikon zur Geschichte der Hexenverfolgung, eds, Gudrun Gersmann, Katrin Moeller und Jürgen-Michael Schmidt, in: https://www.historicum.net/purl/44zrm/(21.5.2016); of the Layenspiegel, see Andreas Deutsch, “Laienspiegel”, in Historisches Lexikon Bayerns, http://www.historisches-lexikon-bayerns.de/Lexikon/ Laienspiegel> (30.10.2016). 104  See Friedrich-Christian Schroeder, ed., Die Peinliche Gerichtsordnung Kaiser Karls V. und des Heiligen Römischen Reichs von 1532 (Carolina) (Stuttgart, 2000), p. 131. 105  The work was named Carolina after the ruling emperor, Charles V. The Carolina was modeled on an earlier work, the so-called Constitutio Criminalis Bambergensis, an extensive work on criminal law commissioned by the bishop of Bamberg and written by several authors. The most important and well known of this group was Johann Freiherr von Schwarzenberg, who was perhaps also a member of the planning committee of the Carolina, see Schnabel-Schüle, Überwachen und Strafen im Territorialstaat, p. 29. The literature on the Carolina is extensive. For an introduction, see Friedrich-Christian Schroeder, Die Carolina. Die peinliche Gerichtsordnung Kaiser Karls V. von 1532 (Darmstadt 1986) or Peter Landauer, Friedrich-Christian Schroeder, eds., Strafrecht, Strafprozeß und Rezeption. Grundlagen, Entwicklung und Wirkung der Constitutio Criminalis Carolina (Frankfurt am Main, 1984).

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passages on substantive criminal law and dealt with criminal procedure, incorporating the Roman ex officio principle and the Roman theory of circumstantial evidence, which replaced the traditional rules of proof based on oaths or duels. It is also important to note, however, that although the imperial estates, cities and both secular and ecclesiastical territories had supported the idea of an imperial criminal code, plans to publish the Carolina were initially met with resistance. When the Carolina was finally sanctioned by the Imperial Diet at Augsburg in 1530, it included a concession won by the estates. This was the so-called Salvatorische Klausel, which gave the Carolina only subsidiary legal force. Judges were thus free to follow the customary laws of their territories if they conflicted with the Carolina. Territorial rulers could not enact new laws that contradicted the Carolina, but they could find ways to use this imperial code in conjunction with customary legislation to underscore and enhance their power and authority.106 The influence of the ius commune on criminal jurisdiction was extended not just by legislation but also by German jurists through the custom of Aktenversendung.107 Aktenversendung referred to a process by which local judges sent trial records to the law faculty of a university or to independent lawyers and requested a legal evaluation, a consilium, which contained a suggestion for a verdict. Aktenversendung became more and more widespread during the course of the early modern period, since local judges were mostly untrained and often overwhelmed with the regulations of the Carolina. The jurists who wrote the consilia based their evaluation to a great extent on the juristic literature of the ius commune. The growing acceptance of the ius commune as a major frame of reference for the administration of criminal justice brought additional parameters to customary medieval evaluations of violent death. One example is the increasing importance of a subcategory of homicide developed by Italian Commentators, often referred to by German jurists as excessus defensionis, defensus excessus or with the German term Excess. For an explanation of this concept we have to start with the Digest‘s treatment of homicide.

106  See Schnabel-Schüle, Überwachen und Strafen, p. 30 or Marianne Sauter, “Aktenversendung,” in Lexikon zur Geschichte der Hexenverfolgung, hrsg. v. Gudrun Gersmann, Katrin Moeller und Jürgen-Michael Schmidt, in: historicum.net, URL: https://www.historicum.net/purl/ jfzmq/(21.5.2016). 107  For a discussion of Aktenversendung, see ibid. or for further reading, see Sönke Lorenz, Aktenversendung und Hexenprozeß. Dargestellt am Beispiel der Juristenfakultäten Rostock und Greifswald (1570/82–1630) (Frankfurt am Main, 1982).

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Introduction

In Roman law, intent was the crucial factor which determined criminal responsibility. It was the malicious intention, the so-called dolus malus, which was punishable rather than the success of the deed.108 The law of the Digest, therefore, recognized a theory of diminished responsibility according to which those who were drunk, insane, or minors at the time of the offense were acquitted or punished more leniently. This focus on intentionality influenced the categorization of homicide. Homicides committed with malicious intent were punished with deportation or the death penalty according to the lex Cornelia de sicariis et veneficis.109 The Roman law emphasis on intention meant that the lex Cornelia also applied to situations in which an offender wounded his victim with the intention to kill [animus occidendi]. In order to determine whether a wound had been given with such an intention, the lex Cornelia asserted that the intention of an offender was indicated by his outward behavior: “guilty intention is presumed from the deed.”110 The kind of weapon used in a fight was one indication of the offender’s intentions. According to Emperor Hadrian, who added an explanation to the lex Cornelia, those who drew swords or struck with a weapon intended to kill their opponents, whereas those who “struck someone with a key or a saucepan in the course of a brawl” did not intend to kill and were punished more leniently.111 108  Theodor Mommsen, Paul Krueger und Alan Watson, The Digest of Justinian, vol. 4 (Philadelphia, 1985), p. 821: “… in maleficiis voluntas spectatur, non exitus …” (“… In crimes it is the intention, not the issue, to which regard is paid” …). This sentence stems from a section in the Digest concerning the lex Cornelia de sicariis et veneficis (Book 48, Title 8, Note 14). 109  According to the Digest, the lex Cornelia had originally prescribed deportation and forfeiture of property as a punishment for intentional homicide, but “nowadays” (“hodie”), this sanction was restricted to persons of higher status. Other offenders were punished with the death penalty, see ibid., p. 820. The lex Cornelia thus did not distinguish between categories such as manslaughter or murder, classifying all such slayings as intentional homicides. The lex Cornelia was originally aimed primarily at the pacification of Roman territory, seeking, for example, to forestall brigands and highway robbers, in other words those who walked “about with a weapon for the purpose of homicide or a theft”; ibid., p. 818. Although, as O.F. Robinson points out, “public order was the background of the lex Cornelia, it did (or very soon came to) cover ordinary murder, not only murder on the public highway but also in private houses, as well as death inflicted in a brawl or arising from going about armed with murder in mind.” The Criminal Law of Ancient Rome (Baltimore, 1995), p. 43. 110  Mommsen et al., The Digest, vol. 4, p. 820: “In lege Cornelia dolus pro facto accipitur …”. 111  Ibid., p. 819: “sed si clavi percussit aut cucuma in rixa …”.

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Unintentional slayings, such as slayings committed in negligence, were exempt from the lex Cornelia. The following example was used to clarify the distinction. If a tree pruner neglected to shout a warning about a falling limb that nevertheless killed a passerby, “punishment under this statute [i.e. the lex Cornelia] was not applicable.”112 The pruner had killed the victim in culpa.113 The term culpa (“fault”) indicated wrongful behavior, including negligent or careless actions. Such acts were actionable at civil law according to the lex Aquilia.114 Self-defense was exempt from punishment, which was also treated in the lex Aquilia.115 According to the Digest, the lex Aquilia distinguished between necessary self-defense and forbidden vengeance.116 While self-defense was considered an unintentional slaying, vengeance was considered intentional.117 Yet there was one exception: adultery. Adultery was the concern of the lex Julia de adulteriis coercendis, legislated under Augustus. Punishment for adultery had previously been a domestic prerogative, but as Robinson argues, Augustus might have wished to restrict “the potential exercise of domestic jurisdiction,” and he therefore restricted to some extent the father’s or husband’s right to

112  Ibid., p. 820: “… ad huius legis coercitionem non pertinet”. 113  The Digest stated that “… under this law [i.e. the lex Cornelia] gross negligence is not interpreted as guilty intention.” Gross negligence was translated as culpa lata: “neque in hac lege culpa lata pro dolo accipitur” (ibid.). 114  For an introduction to the historiographical discussion of the complex meaning of culpa in Roman law, see Geoffrey MacCormack, “Aquilian Culpa,” in Daube Noster. Essays in Legal History for David Daube, ed. Alan Watson (Edingburgh and London, 1974), pp. 201–219. See also Adolf Berger, Encyclopedic Dictionary of Roman Law (Transactions of the American Philosophical Society, New Series, vol. 43, Part 2, 1953) (Reprinted by the Lawbook Exchange, 2004), p. 419. Early modern German jurists generally used the term culpa to characterize slayings committed in negligence. 115  See Mommsen et al., The Digest, vol. 1, p. 271: “If someone kills anyone else who is trying to go for him with a sword, he will not be deemed to have killed unlawfully …” (“Sed et si quemcumque alium ferro se petentem quis occiderit, non videbitur iniuria occidisse …”) or p. 291: “… for all laws and all legal systems allow one to use force to defend onself against violence (“… vim enim vi defendere omnes leges omniaque iure permittunt”). Robinson points out that self-defense was permissible “if and only if the killer could not have spared the man’s life without risk to his own” (The Criminal Law of Ancient Rome, p. 45). 116  See Mommsen et al., The Digest, vol. 1, p. 291. Violent self-defense was permitted “… only so far as is necessary for self-defense and not for revenge” (“… si tuendi dumtaxat, non etiam ulciscendi causa factum sit”). 117  Robinson writes that vengeance “was murder from early in Roman law, vendettas seem never to have been approved.” (The Criminal Law of Ancient Rome, p. 45).

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kill adulterers.118 He did not, however, encroach wholly on this domestic right. The father was allowed to kill his daughter when he surprised her in the act of adultery in his own house or in that of his son-in-law.119 The husband was not allowed to kill his wife, but he was allowed to kill her lover if he caught them in the act in his own house and if the social status of the lover was beneath his own. The law justified the father’s more extended ius occidendi by reference to his calmer spirit. Concerned with family duty, he was more likely to make a correct judgment than a jealous husband, whose “heat and impetuosity” should be restrained.120 This acknowledgment of the husband’s “heat and impetuosity” led to the development of a case of diminished responsibility in the lex Julia. If the husband happened to overstep his ius occidendi, killing his wife or her lover of high social status, the slaying would be considered homicide but not be punished according to the lex Cornelia.121 His punishment would be less severe because “it is extremely difficult to temper one’s just grief.”122 The husband’s passion was thus considered a mitigating circumstance. Yet extreme emotions, such as anger, pain, or fear were not in general a part of the Digest‘s list of mitigating circumstances. Circumstances such as drunkenness, insanity, or minority were considered exculpating, but emotional impulse was only a mitigating circumstance if it was justified by a provocation. Yet even this was not a general rule, but one tied to specific cases, such as adultery.123 The Italian Commentators, however, were inspired by the use of impulse in the lex Julia. In addition to accepting the mitigating circumstances such 118  Ibid., p. 58. 119  See Mommsen et al., The Digest, vol. 4, p. 810. He was only allowed to kill the lover if he also killed his daughter, and he had to kill them “on the spot, almost with one blow” (“uno ictu et uno impetu”); see ibid. However, if the daughter fled while he was killing the paramour, and the father took some hours to catch up with her, then the pair were considered to be together if killed; see ibid., pp. 810–811. 120  Ibid., p. 810: “calor et impetus”. The lex Julia was cited in legal consilia well into the early modern period. In 1653, a Württemberg jurist suggested a mitigated punishment for a man who had killed the lover of his wife, but objected to the mildest possible sanction (a monetary fine) because the lover was not of a lower social status than the slayer (see Tü 84/10, p. 158). This was a prerequisite for a mild punishment according to the lex Julia. The Württemberg jurist justified his argument with a reference to the lex Julia. 121  See Robinson, The Criminal Law of Ancient Rome, p. 61. 122  Mommsen et al., The Digest, vol. 4, p. 814: “… cum sit difficillimum iustum dolorem temperare …”. 123  For further discussion of impulse as a mitigating circumstance in Roman law, see Anette Grünewald, Das vorsätzliche Tötungsdelikt (Tübingen, 2010), pp. 58–65.

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as drunkenness, insanity, or minority from the law of the Digest, they further developed the connection between impulse and provocation.124 Almost all Commentators considered impulse due to hot anger a mitigating circumstance when it was a reaction to a provocation. They typically gave two examples of the mitigating force of anger. The first was the case of the jealous husband taken from the lex Julia, whilst second concerned the case of a slayer who in anger exceeded the bounds of self-defense. In order to understand this case, it is important first to see how self-defense was defined by the Commentators. The Commentators were influenced by medieval canonists and Glossators, who had been eager to distinguish between self-defense and vengeance. In order to determine whether a slaying was committed in self-defense or in vengeance, the Commentators, following the Digest, held that intention could be presumed from external circumstances.125 Self-defense had to be moderate in order to be lawful; cum moderamine inculpatae tutelae [“blameless defense through control”] was the standard definition of self-defense.126 Medieval jurists argued that the requirement of the moderamen was threefold, comprising circa modum, circa tempus, and circa causam.127 Circa modum referred to the nature of the attack. The weapons used by the one attacked could not therefore be greater than those of the attacker. Using weapons to defend oneself against

124  Just as in medieval German law, the victim’s provocation was generally a mitigating or even exculpating circumstance in customary Italian law. In many cities a person provoked or insulted was allowed to respond physically without risking a penalty, see Georg Dahm, Das Strafrecht der Italiener im Mittelalter (2nd ed., Berlin, 1954), p. 109. 125  See Dahm, Das Strafrecht der Italiener, p. 127. 126  As Kenneth Pennington points out, the term was first used in a rescript of the emperors Diocletian and Maximinian in 290. This rescript regulated the lawful defense of property, see “Moderamen inculpatae tutelae: The Jurisprudence of a Justifiable Defense,” Rivista internazionale di diritto commune 24 (2014), 27. Canonists began to connect this “Roman law concept of a measured defense with a person’s right of self-defense” during the twelfth century, see ibid., p. 29. 127  See, for example, the discussion of self-defense by the fourteenth-century jurist Bartolus of Sassoferrato which can be found in his commentary on the eighth book of Justinian’s Codex (Unde vi, I, n. 7): “Quero in quo consistat illud moderamen. Gl. Hic dicit, circa tria. Primo circa modum. Secundo circa tempus. Tertio circa causam.” This quote stems from a sixteenth-century edition: Bartolus de Saxoferrato, Bartoli Commentaria in secundum Codicis partem (Lugduni, 1550), urn:nbn:de:hbz:061:1–76050, fol. 106r. For further discussion of the requirements of the moderamen, see Pennington’s succinct and informative analysis of the medieval development of this doctrine (“Moderamen inculpatae tutelae”, 27–55).

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someone unarmed was also not allowed.128 Circa tempus referred to the timing of the defense—it had to be immediate, incontinenti. It was within the rules of the moderamen, however, to strike first when confronted with a charging and armed aggressor.129 Circa causam referred to the motivation of the slayer. For a slaying to qualify as self-defense it should be motivated by the desire to defend one’s life, rather than by vengeance.130 The use of force was permitted only if the attacked could not protect himself in any other way.131 Yet the Commentators were ready to mitigate the punishment for those who exceeded the bounds of the moderamen if they had been moved to just anger by the provocation of a victim. In such cases, the judge could apply a poena extraordinaria rather than a poena ordinaria. The term poena ordinaria referred to the standard punishment assigned in the laws to specific offenses, whereas the poena extraordinaria was applied in cases which did not fit the description of the statutes. Punishment was then left to the discretion of the judge.132 By thus extending the definition of self-defense to include the concept of an “excessive” response, a language of honor and provocation could be used to defend slayers who, in medieval German law, would be called “honorable.” It is important to keep in mind, however, that there was a subtle difference between this concept and, for example, the honorable manslaughter described above. The use of the Latin noun “excessus” or of the corresponding verb 128  The jurist Baldus de Ubaldis (1327–1400) argued in his commentary on the Corpus Iuris Civilis that this rule did not apply when the attacker was a strong man using his fists to attack a weaker, more timid man: the latter was therefore allowed to use his sword, see C VIII Unde vi Repetitio l. prima, n. 13 in Baldus de Ubaldis, Commentaria omnia (Venice, 1599; repr. Goldbach: Keip, 2004), fol. 134v. Another indication of intention besides the timing and mode of attack were the victim’s wounds, see Woldemar Engelmann, Die Schuldlehre der Postglossatoren (Leipzig, 1895), p. 132/133 and p. 134, fn. 16. 129  See ibid., p. 127. A few commentators qualified this rule as well. Iacobus de Belvisio, for example, argued that one should only be permitted to strike first if the aggressor was a notorious fighter, but if he was known for making empty boasts, then the first strike was not permitted; see ibid., p. 128. 130  See, for example, Bartolus de Saxoferrato, Bartoli Commentaria, fol. 106v. 131  See Dahm, Das Strafrecht der Italiener, p. 131. However, the Commentators did not generally require that the person attacked attempt to escape before striking back. Angelus de Clavisio even considered flight a concession towards the attacker, tantamount to proving him right. For other Commentators, it depended on the circumstances whether flight was required. Baldus de Ubaldis contended, for example, that flight was not necessary if it were dangerous or if it would threaten the honor of the attacked. This last consideration might not, therefore, apply to persons of lower status. In contrast, Canonists, in a concession to Christian humility, often insisted on an effort to escape, see ibid., pp. 132–134. 132  See F. Neef, “Poena arbitraria,” Handwörterbuch zur Deutschen Rechtsgeschichte, vol. 3, eds. Adalbert Erler and Ekkehart Kaufmann (Berlin, 1984), cols. 1781–1785.

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“excedere” in reference to such slayings indicates that the response was a “slip” from the expected moderate response.133 Precisely how these ius commune distinctions influenced late medieval German homicide regulations is difficult to assess, as the use of the concept of self-defense illustrates. Although German law had distinguished at an early point between various motivations in judging the honor or dishonor of a crime, the principle of reciprocity was strongly ingrained in this culture, impeding the easy acceptance of a category of slayings that did not require the slayer to pay compensation to the injured relatives.134 Even though the growing influence of canon and Roman law helped self-defense to become an established category within medieval German law, traditional notions were hard to uproot, and many laws initially required the slayer to pay for compensation regardless.135 In most laws, however, a slayer who killed in self-defense was in theory free from any claims of the relatives of the deceased.136 Yet many urban laws did not define self-defense at all, although some contained definitions that were stricter than those of the Commentators. While the Commentators argued that it was not necessary to wait until struck to defend oneself, for example, German laws were often less accommodating. According to Bamberg’s statutes, a party who was attacked had to be wounded before he could strike back in self-defense.137 The Schwabenspiegel, an influential Southern German law book from the thirteenth century, and the city law of Memmingen even required that the slayer retreat and attempt flight before striking back.138 These regulations were perhaps more strict than the Commentators with regard to self-defense because many German regions 133  There was no standardized term to refer to a slaying that did not quite fit the definition of self-defense. For example, Baldus de Ubaldis described the concept with the phrase “… si quis excessit modum licitae defensionis” (C VIII Unde vi Repetitio l. prima, n. 23 in Baldus de Ubaldis, Commentaria, fol. 134v), or referred to it as “defensionis licitae modum excedens” (ibid., fol. 133v) or used the expression “excedere modum” (ibid., C VIII Unde vi lex prima, n. 8, fol. 133v). Württemberg jurists frequently employed the term Excess in early modern homicide records; see, for example, Universitätsarchiv Tübingen 84/6 (1624), p. 615. This term will be used throughout the book. 134  Self-defense was only mentioned in those early law codes which were very strongly influenced by Roman law, such as the Lex Burgundionum, or the Formulae Turonenses 30 from the eighth century; see E. Kaufmann, “Notwehr,” Handwörterbuch zur Deutschen Rechtsgeschichte, vol. 3, eds. Adalbert Erler and Ekkehart Kaufmann (Berlin, 1984), col. 1097. 135  This was true for the Sachsenspiegel and other laws from northern Germany; see ibid., col. 1098. 136  See His, Das Strafrecht des deutschen Mittelalters, vol. 1, p. 200. 137  See ibid., p. 198. 138  See ibid., p. 199.

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tolerated a non-capital manslaughter which could be atoned for with a fine, an extrajudicial agreement or both. Perhaps because the Commentators did not define a legal category for a non-capital manslaugher, their concept of self-defense adopted traits characteristic of an “honorable manslaughter”: the slayer did not have to wait before his victim struck, and he also did not have to attempt escape if it conflicted with the demands of honor. The first popular German vernacular law manual to assimilate passages of ius commune-based criminal law was the Klagspiegel [“accusation mirror”], a Southern German law book written in the late fifteenth century.139 The author of the Klagspiegel assimilated the distinction between intentional and unintentional deeds as the crucial factor in determining criminal acts. He distinguished between slayings committed with malicious intent and those committed in negligence or drunkenness, where a poena extraordinaria should be applied.140 The discussion of self-defense in the Klagspiegel is partially influenced by the Italian teachings. Defense should be moderate: it had to be immediate, commensurate with the attack and could not be motivated by vengeance.141 Yet while the author distinguished ‚true‘ cases of self-defense from those which did not meet the requirements of his definition, he did not assimilate the concept of the non-capital category of Excess comitted in sudden and just anger.142 The Klagspiegel was used by Johann von Schwarzenberg and the other compilers of the criminal code called Bambergensis, a work which in turn became the immediate model for the Carolina.143 Influenced by the Klagspiegel and the 139  Wolfgang Sellert and Hinrich Rüping, Studien- und Quellenbuch zur Geschichte der deutschen Strafrechtspflege, Bd.1. Von den Anfängen bis zur Aufklärung (Aalen, 1989), p. 194. The Klagspiegel was probably first printed in the last decade of the fifteenth century, possibly in Straßburg or Augsburg, and later reprinted by Sebastian Brant in 1516, see Roderich Stintzing, Geschichte der populären Literatur des römisch-kanonischen Rechts in Deutschland am Ende des fünfzehnten und im Anfang des sechzehnten Jahrhunderts (Aalen, 1959), p. 338. See also Deutsch, “Klagspiegel (Conrad Heyden)” and B. Koehler, “Klagspiegel,” Handwörterbuch zur Deutschen Rechtsgeschichte, vol. 2, eds. Adalbert Erler and Ekkehart Kaufmann (Berlin, 1978), cols. 855–857. 140  Sebastian Brandt, Der Richterlich Clagspiegel. Ein nutzbarlicher begriff: wie man setzen und formiern sol nach ordenung der rechten ein yede clag, antwurt u.s.w. Durch Doctoren Sebastianum Brandt wider durchsichtiget und zum teyl gebessert (Straßburg, 1516), fol. 131r. See also Brunnenmeister, Die Quellen der Bambergensis, p. 172. 141  See Brandt, Der Richterlich Clagspiegel, fol. 120r and fol. 121r–121v. 142  See ibid., fol. 121v. 143   Emil Brunnenmeister has demonstrated, for example, that the passages in the Bambergensis on negligence were influenced by those in the Klagspiegel on the same subject matter; see Die Quellen der Bambergensis (Leipzig, 1879), p. 248.

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writings of Italian jurists, Schwarzenberg and his co-authors assumed that the intention of the slayer, which could be presumed from the external facts, determined the nature of his punishment.144 According to both the Bambergensis and the Carolina, unintentional homicides committed by accident were unpunished whereas those committed through negligence could be punished with a poena extraordinaria.145 Self-defense was exempt from punishment.146 Article 143 of the Bambergensis and Art. 137 of the Carolina distinguished between intentional murder and manslaughter committed in sudden anger.147 Murder was punished with the wheel and manslaughter with the sword.148 The ius commune requirements of a moderate self-defense or the concept of Excess were not explicitly mentioned. Nonetheless, an indirect reference to these concepts can be found in article 142 of the Carolina (or Article 148 of the Bambergensis). This article referred to cases in which a slayer defended himself against an armed attack, which was the definition of self-defense according 144  Where no one had seen the homicide and the slayer claimed self-defense, the slayer’s intention was to be determined through analysis of the wounds, the weapons involved, the prehistory of the fight, and the reputation of slayer and victim. These provisions can be found in article 149 of the Bambergensis and in article 143 of the Carolina. See Heinrich Zöpfl, ed., Die peinliche Gerichtsordnung Kaiser Karl’s V. nebst der Bamberger und der Brandenburger Halsgerichtsordnung sämmtlich nach den ältesten Drucken und mit den Projecten der peinlichen Gerichtsordnung Kaiser Karl’s V. von den Jahren 1521 und 1529. Dritte (synoptische) Ausgabe (Leipzig und Heidelberg, 1883), p. 121 and Arthur Kaufmann, ed., Die Peinliche Gerichtsordnung Kaiser Karls V. von 1532 (Carolina) (Stuttgart, 1975), p. 94. For a discussion of the influence of the writings of Italian jurists on Schwarzenberg, see Brunnenmeister, Die Quellen, p. 239. 145  See Zöpfl, Die peinliche Gerichtsordnung, p. 123. 146  Self-defense is covered in Art. 146 of the Bambergensis and in Art. 140 of the Carolina, see ibid., p. 117. Slayers who were insane and thus incable of forming an intention could be punished with a poena extraordinaria according to Art 156 of the Bambergensis or Art. 150 of the Carolina, see Zoepfl, Die peinliche Gerichtsordnung Kaiser Karl’s V., p. 129. In contrast to the writings of the Italian jurists, neither the Bambergensis nor the Carolina mentions drunkenness as a mitigating circumstance. 147  See Zöpfl, Die peinliche Gerichtsordnung, p. 115. The terms used for “sudden anger” were “gecheyt” and “zorn,” see ibid. The term fürsetzlich which characterized murder in both articles, was the focus of an extensive debate among legal historians in the early part of the century. The term could mean both deliberate and premeditated. The historian Philipp Allfeld asserted that Art. 137 of the Carolina or Art. 157 of the Bambergensis did not restrict the definition of murder to premeditated slayings, although his views have been widely disputed; see Allfeld, Die Entwicklung des Begriffes Mord bis zur Carolina, p. 92. See Brunnenmeister, Die Quellen, p. 249, fn. 4., for a brief summary of the debate and Grünewald, Das vorsätzliche Tötungsdelikt, pp. 65–69. 148  See Zöpfl, Die peinliche Gerichtsordnung Kaiser Karl’s V., p. 115.

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to Art. 140 (or Art. 146 of the Bambergensis).149 If the slayer did not “observe all circumstances” (“alle umbstende”) which belonged “to a fully excused selfdefense” (“zu eyner gantzen entschuldigten notweer”), the judge was allowed to use his discretion and apply a milder punishment.150 German jurists frequently used this article as a justification for their employment of the ius commune concept of Excess in their judgment of manslaughter. They also regularly employed the ius commune definition of a moderate defense alongside with references to the regulations of the Carolina. Since the late medieval period, ius commune distinctions between intentional and unintentional homicides had thus begun to influence the evaluation of homicide, first through vernacular law manuals, and later through the requirements of the Carolina on which regional codes were modelled. The search for the slayer’s intent determined the assessment of evidence in early modern homicide trials. At the same time, traditional distinctions between honorable and dishonorable violence continued to influence the evaluation of violent death. Through the category of Excess, these traditional distinctions concerning the slayer’s motivation remained important factors in the process of evaluating intent. The development of the prosecution of manslaughter was thus influenced by the negotiation between customary and ius commune parameters of evaluation, although the parameters of this negotiation differed according to region. In Württemberg, the influence of ius commune evidentiary theory regarding the concept of Excess can be traced only indirectly during the sixteenth century, but became the dominant evaluation matrix in seventeenth-century manslaughter cases. In Zurich, we can only find traces of it in seventeenth-century prosecutions of homicide. Yet in both places, the ius commune emphasis on the slayer’s intent eventually became intertwined with customary concepts of justified motivation, and legal traditions of extrajudicial dispute settlement increasingly intersected with ex officio procedures. The manner in which these elements influenced legal practice was shaped by both the social contexts of disputants, and governmental concepts of gute policey. 149  See ibid., p. 117. Both articles required that the slayer was attacked with a lethal weapon. 150  See ibid., p. 119. Although the ius commune distinctions between the different requirements of modus, tempus, or causa were not mentioned, both the Bambergensis and the Carolina provided the following examples of possible violations of the requirements of a lawful self-defense. These were cases in which the slayer killed his attacker after having gained the advantage during the fight and thus no longer being in mortal danger, if he had pursued a fleeing attacker without need or if he could have fled without danger to himself or loss of honor; see ibid.

CHAPTER 1

Restitution: Strategies of Compensation and Resolution in Early Modern Württemberg In 1459, Bartolome of Bretheim, a subject of the Count of the Palatinate, killed a Württemberg subject and negotiated an agreement with the family of the deceased to satisfy their claims to restitution. No trial occurred: the negotiated agreement sufficed as atonement for his homicide.1 Legal culture recognized injured families’ claims to restitution; as in most areas of south-west Germany in the late Middle Ages, arbitration was entrenched in Württemberg legal practice.2 This chapter examines modes and strategies of private restitution in homicide cases in relation to changes in the administration of criminal justice. The focus is on two developments that were especially significant for the families of victims. First, the chapter analyses homicide cases from the sixteenth century. Around 1500, arbitration was integrated into an increasingly centralized legal system. Ducal permission was needed for an agreement, which could take the place of a trial verdict. Ius commune influenced the evaluation of evidence and the ducal decision between negotiable and non-negotiable slayings, but Württemberg’s laws obligated the duke to take the wishes of injured parties into account. Concepts and considerations of gute policey influenced the outcome of homicide cases and the use of Roman rules of evidence. In a second step, the chapter describes changes in the modalities of restitution. During the seventeenth century, the parameters of the negotiations between parties in homicide cases shifted, as the ducal administration no longer accepted agreements in lieu of a trial. Private restitution occurred alongside criminal trials, however, and comprised both arbitration and civil suits. At the same time, the evidence illustrates that formal and informal justice continued to intersect. Although the influence of private parties lessened, their claims 1  HstA A 602 WR 14954. In this letter to the local magistrate, the earl of Württemberg accepted that Bartolome had settled “gütlich” (i.e. “amicably,” a term often used in reference to an agreement) with the family of the victim. The earl promised that Bartolome should be left “usser sorgen,” i.e. that he would not be further tried or punished; see Hoch oder gemainer Teütscher Nation Formular (Frankfurt am Main, 1562), p. 26 for a similar use of this expression in a standard formula for agreements in manslaughter cases.). 2   See Helga Schnabel-Schüle, Überwachen und Strafen im Territorialstaat, p. 247, and H. Jänichen, “Schwäbische Totschlagssühnen.”

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and strategies could still affect the considerations of the ducal administration and their verdicts. The analysis of restitution in Württemberg homicide cases of the early modern period demonstrates that the evolution of legal practice should not be understood as a story of successive supersession of private modes of conflict resolution with forms of public justice.3 It is more accurate to speak of shifts in emphasis; private restitution remained part of the legal package of homicide resolution, even if the extant sources often privilege judicial justice during the seventeenth century.4 Consequently, the number of sources used in this chapter is relatively small. Of 41 homicide records from the sixteenth century, 15 were resolved by arbitration. Of 264 seventeenth-century cases, 17 can be used to throw light on the claims and strategies of injured families. Incomplete as the picture is, this chapter seeks to show that attempting to draw it is important. The search for other stories next to those privileged in official documents helps to draw attention to arbitration in the context of the law, and contributes to an understanding of the twists, turns, and detours that marked the development of judicial procedures during the early modern period. The arguments presented in this chapter rely on a growing historiographical consensus that state-building took place on various levels through the integration and adaptation of existing local methods of interaction and conflict resolution.5 In the absence of a regular police force or civil servant machinery, the administration of justice was conceived of from the outset as a process of cooperation between administration and local communities. The Württemberg sources show that arbitration could serve the goals of gute policey, which aimed at pragmatic solutions in order to stabilize communal finances and social peace. The reintegration of offenders was dependent not just on the evaluation of evidence, but also on its value for the common good. The chapter thus concentrates first on an analysis of the relationship between arbitration and judicial proceedings in the sixteenth century and discusses parameters of ducal decision making as well as strategies available to disputing parties. A brief introduction to the political and legal context provides historical background for the analysis of the resolution of homicide in Württemberg. 3  For further discussion of the enduring importance of extrajudicial forms of conflict resolution, see Ludwig’s references to the literature, Das Herz der Justitia, p. 15, fn. 29 or Stephen Cummins, “Forgiving Crimes in Early Modern Naples,” in Cultures of Conflict Resolution, eds. Cummins and Kounine, pp. 255–279 and the literature cited there. 4  Ulrike Ludwig discusses the problem briefly in her work on judicial processes in Saxony; see Ludwig, Das Herz der Justitia, p. 15. 5  See Ludwig, Das Herz der Justitia, p. 17 and the literature cited there.

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Württemberg: Overview of the Political and Legal Structure Wedged between the territories of Baden-Durlach and Bavaria, early modern Württemberg was a semi-prosperous territory with ca. 400,000 inhabitants, of whom roughly 9000 belonged to the capital, Stuttgart.6 In historical records, the earls of Württemberg first appear in the eleventh century, settled in a “fortified structure” near Stuttgart “that they called the Wirtemberg.”7 Over the centuries, as Vann wrote, through inheritance, force, settlements and marriage, they extended their territory.8 As they expanded, the Württembergers clashed repeatedly with the imperial cities within and around their domain: Esslingen, Reutlingen, Weil der Stadt (all within their territory) and Heilbronn, Rottweil, Augsburg and Ulm (which lay on their borders). These urban powers had emerged from the long struggle to obtain rights of commercial access into Württemberg, and Württemberg’s cities could not compete with them. The imperial cities were a dominant factor of the region’s economic life, they sold manufactured goods to Württemberg inhabitants and traded with the produce bought from Württemberg farmers. Württemberg’s economy remained dominated by agriculture.9 In 1495, in return for loyal services, the emperor raised Württemberg’s earls to the high rank of dukes. The only interruption in the rule of the House of Württemberg came between 1519 and 1534 when the Swabian League expelled Duke Ulrich, and the Habsburgs ruled the duchy. According to Scribner, the Habsburg rulers did not change the administrative or the legal system of the duchy, meaning that daily life was little affected by this brief change in rulership.10 Religious change came to the duchy in 1525.

6  See Robert W. Scribner, “Police and the Territorial State in Sixteenth-century Württemberg,” in Politics and Society in Reformation Europe. Essays for Sir Geoffrey Elton on his Sixty-Fifth Birthday, eds. E.I. Kouri and Tom Scott (Hong Kong, 1987), p. 106. 7  James Allen Vann, The Making of a State. Württemberg 1593–1793 (Ithaca, 1984), p. 35. 8  See Vann, The Making of a State. Württemberg’s territory also increased beyond the borders. Through marriage ties, the French earldom of Mömpelgard belonged to Württemberg from 1444. Mömpelgard was governed by a collateral line and had its own political and legal administration. For further reading, see See Sönke Lorenz and Peter Rückert, eds., Württemberg und Mömpelgard. 600 Jahre Begegnung. = Montbéliard—Wurtemberg, 600 ans de relations (= Schriften zur südwestdeutschen Landeskunde 26) (Leinfelden-Echterdingen 1999). 9  See Scribner, “Police and the Territorial State,” p. 106 and Vann, The Making of a State, pp. 30–38. During the fifteenth century, the earldom was partitioned into WürttembergUrach and Württemberg-Stuttgart, see Vann, The Making of a State, p. 44 or Dieter Mertens, “Württemberg,” in Handbuch der Baden-Württembergischen Geschichte. Band 2, Die Territorien im Alten Reich (Stuttgart, 1995), p. 48. The two earldoms were reunited in 1482. 10  See Scribner, “Police and the Territorial State,” p. 106.

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The Dukes were among the earliest German territorial rulers to accept the Lutheran Reformation.11 This conversion put Württemberg at odds with the Habsburgs during the religious wars of the sixteenth century.12 Württemberg’s economic developement was halted by warfare during the seventeenth century. During the Thirty Years War, the population declined by 75 percent. Due to near continous involvement in subsequent wars during the second half of the seventeenth century, it took almost a hundred years before the population returned to prewar levels.13 Württemberg’s political history was shaped by constitutional struggles between the dukes and the assembly of the estates, the Landschaft, in which local notables, the so-called Ehrbarkeit (“honorables”) were represented.14 The territorial assemblies became the principal counterweight to ducal power.15 At these assemblies, grievances were voiced, solutions to administrative problems proposed, and taxation negotiated. The constitution of Württemberg was worked out between Duke Ulrich and the territorial assembly in the so-called Tübinger Vertrag (“Tübinger settlement”) of 1514. In return for agreeing to cover governmental debts, the estates received the right to levy taxes and to take part in supervising the territorial administration. Ulrich also promised to consult the estates prior to any declaration of war. Finally, the estates acknowledged 11  See Vann, The Making of a State, p. 18 and Johannes Dillinger, ed., Zauberer— Selbstmörder—Schatzsucher. Magische Kultur und behördliche Kontrolle im frühneuzeitlichen Württemberg (Trier, 2003), p. 10. 12  See Mertens, “Württemberg,” p. 107. 13  See Dillinger, Zauberer—Selbstmörder—Schatzsucher, p. 8 or Schnabel-Schüle, Überwachen und Strafen, p. 157 and Wolfgang von Hippel, Das Herzogtum Württemberg zur Zeit des Dreißigjährigen Krieges im Spiegel von Steuer- und Kriegsschauberichten 1629–1655. Materialien zur Historischen Statistik Südwestdeutschlands (Stuttgart, 2009) and by the same author, “Bevölkerung und Wirtschaft im Zeitalter des Dreißigjährigen Krieges. Das Beispiel Württembergs,” Zeitschrift für historische Forschung 5 (1978), 413–448. The resulting economic decline and recurring periods of political instability are also reflected in frequent gaps in the legal records of the seventeenth century. 14  See Vann, The Making of a State, p. 38. For a discussion of the social and political position of the Ehrbarkeit in early modern Württemberg, see Gabriele Haug-Moritz, Die württembergische Ehrbarkeit. Annäherungen an eine bürgerliche Machtelite der Frühen Neuzeit (Sigmaringen, 2009). 15  For an overview of the development of these Württemberg assemblies, see Walter Grube, Der Stuttgarter Landtag 1457–1957 (Stuttgart, 1957). Each district sent two representatives to these assemblies. The interest of the local urban elite often dominated district representation in the Landtag, see Vann, The Making of a State, p. 46. During the sixteenth century, the countryside struggled to enhance their position versus the Ehrbarkeit, see Scribner, “Police and the Territorial State,” p. 107.

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the sole right of the duke to summon the Landtag, though he in turn agreed to let the representatives of Stuttgart and Tübingen, the duchy’s university town, propose meetings.16 The Tübinger Vertrag was a landmark in the constitutional history of Württemberg because it marked the exclusion of the imperial knights from the Landtag. The duchy was scattered with castles and villages of nobles who were, like the imperial cities, free subjects of the empire. During the fifteenth century, these knights became involved in the administration of the duchy as ducal advisors and military allies and sent representatives to the territorial assemblies. But when the subject of these diets shifted gradually to the question of taxation and the payment of ducal debts, the knights began to withdraw from these diets, denying that they had any financial obligation toward the dukes. They fought for their position so strongly that they were not invited to the 1514 Landtag at which the Tübinger Vertrag was drafted. During the fifteen years of Habsburg rule, the position of the imperial knights as direct subjects of the emperor and their freedom from any claims of Württemberg was confirmed. Even though individual knights continued to take positions within the administration of the duchy, they had given up “their position in the estates.”17 Since they were exempt from ducal criminal administration, they hardly enter our story. During the course of the sixteenth century, the dukes sought to centralize the duchy’s administrative and bureaucratic structures. Local justice was in several hands at once. Württemberg was divided into administrative districts called Ämter, with the number of Ämter varying between forty-five and fifty-eight.18 Dukes appointed district governors called Vögte who came mostly 16  See Vann, The Making of a State, p. 45. For further discussion of Württemberg’s political history, see Vann’s poignant discussions in The Making of a State. He describes the government of the duchy during the early modern period as a negotiation between a “fluctuating coalition of bargaining units”: duke, estates, and high officials of the privy council (ibid., p. 20). 17  See Vann, The Making of a State, pp. 47–50. Knights traditionally quarrelled in the form of feuds; reconciliation took place through arbitrated agreements, see Herbert Obenaus, Recht und Verfassung der Gesellschaften mit St. Jörgenschild in Schwaben. Untersuchung über Adel, Einzug, Schiedsgericht und Fehde im fünfzehnten Jahrhundert. Göttingen, 1961, p. 55. Around the mid-sixteenth century, the Swabian knights drew together to form the organisation known as the Schwäbische Reichsritter, the ‘swabian Imperial knights.’ This group regulated conflicts among themselves with an internal jurisdiction, see Volker Press, “Reichsritterschaft,” in Handbuch der Baden-Württembergischen Geschichte. Band 2, Die Territorien im Alten Reich (Stuttgart, 1995), p. 794. 18  See Scribner, “Police and the Territorial State,” p. 106.

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from the groups of local honorables, although some Ämter had a Vogt who was a member of the nobility and who lived in a castle and commanded a small garrison.19 Such individuals were known as Obervogt (“higher Vogt”), while a non-noble Untervogt (“lower Vogt”) was responsible for the actual supervision of the administration.20 The Vogt was seated in the largest town or village of each Amt, the Amtstadt. The villages or smaller towns within the district were run by the village mayor, the so-called Schultheiss or bailiff, and a village council, “with a village court responsible for civil litigation and as a court of first instance in minor criminal matters. These bodies were made responsible to the Vogt through an annual accounting.”21 During the course of the early modern period, other levels of jurisdiction emerged that involved members of the local communities. In 1559, a Württemberg ordinance regulated the procedure for an additional court, the “Rügegericht.” Together with other members of the district court, the Vogt elected five men of a local community to act as Rüger (“admonishers”) to pursue rumors concerning a variety of offenses. In 1642, the Kirchenkonvente (“morals court”) were instituted, which sanctioned offenses such as blasphemy, drunkenness or household quarrels. The village pastors presided alongside the bailiff over the Kirchenkonvente. The deliberations of both the Rügegerichte and the Kirchenkonvente could lead to a criminal process.22 As Vann pointed out, “town and village operated thus independently of each other, each with its own cadre of officials and hierarchy of administrative and judicial offices,” but linked by the figure of the Vogt.23 The Vogt was also the link between the district and the duchy administration, reporting to Stuttgart about the political, financial, and legal affairs of his district. The Vogt proclaimed governmental regulations, the policey ordinances, in his district, which came in the form of police ordinances. Throughout the sixteenth century these emerged in a steady flow. They covered subjects ranging from road repair to social discipline and regulated drunkenness, gambling, swearing, as 19  See ibid., p. 107. Until 1629, the Vogt was frequently one of the two district representatives sent to the Landtag, see Achim Landwehr and Thomas Simon, Repertorium der Policeyordnungen der Frühen Neuzeit, vol. 4: Baden-Württemberg [Ius Commune Sonderheft 139] (Frankfurt a.M, 2001), p. 565. 20  See Friedrich Wintterlin, Geschichte der Behördenorganisation in Württemberg, vol. 1 (Stuttgart, 1904), p. 6 and Achim Landwehr and Thomas Simon, Repertorium der Policeyordnungen der Frühen Neuzeit, p. 565. 21  See Scribner, “Police and the Territorial State,” p. 107. 22  See Dillinger, Zauberer—Selbstmörder—Schatzsucher, p. 11 and Schnabel-Schüle, Überwachen und Strafen, p. 18, p. 46 and p. 111. 23  Vann, The Making of a State, p. 42.

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well as serious crimes like homicide.24 To aid their enforcement, officials could demand that inhabitants of villages or towns swear an oath (“Gebot”) to obey a specific command; a breach of such an oath was severely punished.25 The Urfehde was another form of social control. This was originally a document issued when a person was released from custody, in which he or she swore to accept “any penalty imposed, and would not seek further redress.”26 The policing of subjects required their participation.27 The arm of the law was short; a Vogt usually had only one or two constables.28 Officials consequently often had difficulties apprehending delinquents. Escape was easy; the ways were many. The duchy contained “an array of sovereign enclaves— properties variously of city-states, imperial knights, crusading orders, Catholic monasteries, and Habsburg archdukes.”29 In the midst of Württemberg also lay the imperial city of Reutlingen which by imperial privilege offered life-long asylum to slayers. As Schnabel-Schüle has demonstrated, local courts relied on what she termed “horizontal disciplining,” on denunciations and watchful neighbors, to bring delinquents to justice.30 This meant that law enforcement could be influenced by communal sympathies and values.31 The resolution of homicide was a result both of negotiation between ducal administration and communal interests, and integrated traditional patterns of conflict resolution.

Part One: Arbitration and Legal Practice in Sixteenth-Century Württemberg

Agreements and Ducal Authority In 1496, Barbara Reuter from Tusslingen turned to the newly-made Duke of Württemberg for help. In her letter of supplication to Duke Eberhard, she explained that her husband and son had quarrelled with the village bailiff while 24  Scribner, “Police and the Territorial State,” pp. 107–108. 25  See ibid., p. 109. 26  See Scribner, “Police and the Territorial State,” p. 109 and Andreas Blauert, Das Urfehdewesen im deutschen Südwesten im Spätmittelalter und in der frühen Neuzeit (Tübingen, 2000). 27  A cooperation which, as Scribner demonstrates, was not always given, “Police and the Territorial State,” p. 112. 28  See Scribner, “Police and the Territorial State,” p. 109. 29  See Vann, The Making of a State, p. 30. 30  See Schnabel-Schüle, Überwachen und Strafen, p. 167. 31  See also Bruce Tolley, Pastors and Parishioners in Württemberg during the late Reformation 1581–1621 (Stanford, 1995), pp. 87–112, who discusses the influence of communal values on the implementation of moral and religious prescriptions.

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drinking in a local tavern. Insults had turned into violence, and in the end her husband had killed the bailiff. Husband and son fled the duchy and, as Barbara Reuter complained, local officials had confiscated her husband’s goods and house before a trial had even been held.32 She asked that the duke at least allow her the use of her dowry so that she did not have to become a beggar during her husband’s absence. But her complaint went beyond anger at the irregular trial proceedings, as she in fact asked the duke to forego a trial altogether. Instead, she wished for ducal permission to negotiate an extrajudicial agreement with the family of the deceased and offered payment of a fine to the ducal government. This, she wrote, would be of greater advantage to the duke and to the deceased’s soul than leaving the matter unsettled, given her husband’s absence. In answer to her supplication, the duke declined to act. He delegated to the Vogt the decision of returning or withholding Reuter’s possession and, more importantly for our purposes, the question of whether Reuter was allowed to settle out of court. The Vogt decided instead to base his decision on a thorough investigation of the case.33 62 years after Barbara Reuter’s letter, Duke Christoph showed a more handson approach than his grandfather in resolving the homicide of Michel Felix, who had been killed by Sonder Gonzenhauser in 1558. A fight in a tavern had turned violent, and Sonder fled the duchy after his victim died from his wounds a few days later. The local Vogt took control of the case, but acted on the instructions of the ducal councillors, the Oberräte. They ordered the Vogt to make an inventory of the possessions of the slayer and to investigate the circumstances of the slaying. In the midst of these investigations, Gunzenhauser wrote a letter to the duke from his hiding place, which was later summarized and forwarded to the duke by the Oberräte. In his letter, the slayer explained his escape with his “fear and terror of prison,” and begged the duke to show him mercy and to permit an extrajudicial settlement for his homicide.34 In response to this letter, the duke and his Oberräte instructed the Vogt to allow Gunzenhauser to settle his homicide by agreement. The Oberräte also requested the Vogt to report how much Gunzenhauser had paid the injured family and what his 32  See HStA A 602 WR 14962. According to late medieval Württemberg procedure, inventory and confiscation took place once a slayer had not appeared at his trial day. There is no extant medieval statute describing this procedure; we learn about it from a survey of legal customs in homicide cases conducted by a professor of law from the University of Tübingen on ducal orders in 1535. See HStA A 43 Bü 7. 33  See HstA A 602 WR 14962. 34  See A 209 B 244, letter of supplication from June 1559: “… us forcht und schrecken der gefengnus …”

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financial situation was. Based on this information, the Oberräte imposed an additional ex officio fine on Gunzenhauser.35 Both slayings fell into the broad spectrum of simple manslaughter. In each case, men had quarrelled with each other in a tavern setting, with lethal consequences. Both Barbara Reuter and Sonder Gunzenhauser expected that the case could be settled extrajudicially. But while the duke declined to make a decision in Barbara’s case, he and his Oberräte supervised proceedings in Sonder Gunzenhauser’s case. In Württemberg, arbitration proceedings were officially integrated into the legal system in the early sixteenth century. In 1515, Duke Ulrich issued a police ordinance containing a crucial clause on homicide: There are…. unfortunately many evil rebellious and intentional homicides…. we have made this law to honor God…. Whoever commits such an evil homicide, and the slayer is arrested (and each honorable man who is there shall help to catch the slayer), the slayer and he shall be brought to the law [i.e. stand trial] and this law shall be executed. But if the slayer has escaped and cannot be caught, he shall never have mercy nor be allowed to return; even if he has negotiated an agreement with the family of the deceased. This is in order to avoid such evilness and manslaughter. But if someone has committed an unintentional homicide in self-defense or for other reasons, then we will decide between mercy or the harshness of the law, though in consideration with the wishes of the family of the deceased. But the slayer should do something for the soul of the deceased and compensate the family of the deceased financially and pay us a fine as well.36 35  See ibid., order to the local Vogt, September 6, 1559, attached to the Vogt‘s letter from August 31, 1559. 36  August Ludwig Reyscher, ed., Vollständige, historisch und kritisch bearbeitete Sammlung der württembergischen Gesetze, vol. 12 (Stuttgart and Tübingen, 1828–1851), p. 20: “Item nach dem mann erfindt das laider vil boeser uffsetzlicher und fürtrachtlicher Todschleg begangen werden, darumb got dem almechtigen zu lob und eern haben wir dis satzung geordnet und fuergenomen. Welcher ain sollichen und dergleichen boesen todschlag thon, und der theater betretten wurde, (darob dann ainjeder bidermann, so zugegen ist mit allem flyß sein sol die theter mit gewarsami zu handen zu bringen) so soll demselben oder denselben thethern fuerderlich recht ergeen, unnd dasselbig volnstreckt werden. So aber der thetter entlauffen und nit betreten wurde, so sol doch derselbig nimmer mer begnadet noch yngelassen werden, ob er sich schon mit des entlypten freuntschafft vertragen woelt, damit sollich boeß uebelntatten und todschlag destee vermitten plyben. So aber ainer ain ungeverlichen todschlag user gegenwere, oder andern merklichen verursachen begienge, so sol die begnadung oder strenckait des rechten by uns sten, doch das zuvorderst des entlyppten seel ain

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The clause distinguished between negotiable and non-negotiable homicides on the basis of Roman law. Legal reform was propelled by the spread of ius commune in the sixteenth century: the Roman law made intentionality the decisive factor. At the same time, the statute explicitly acknowledged the claims of private parties; the duke promised in this legislation to consider the wishes of the victim’s family. How he and his councillors juggled both considerations in their decisions about trials is the subject of the following section. This examines how trials and agreements intersected to create a legal practice that both served gute policey and underscored ducal authority. In the Tusslingen homicide case of 1496, the duke had left the decision about whether the slayer should be allowed to forego a trial with the Vogt. In 1515, his successor claimed this decision as his prerogative. He justified this claim with religious language: such deeds offended the Lord, and it was thus the duke’s responsibility to punish them. This first legal codification, which makes agreements a matter of the ducal administration, may in part have been a response to the strategies of disputants.37 Barbara Reuter’s letter suggests that disputing parties might have been in a habit of appealing to the duke in the hope of circumventing unattractive decisions by local officials. The police ordinance can also be understood within a general context of increasing ducal involvement in the administration of criminal justice after Württemberg’s earls had become dukes. According to Achim Landwehr, lawmaking and the extension of jurisdiction were crucial strategies of asserting ducal power.38 The decision to opt between agreement and trial occurred during legal proceedings that had become somewhat centralized by the midsixteenth century. The “upper council,” the Oberrat, assured ducal supervision in the resolution of manslaughter cases from the beginning of legal investigations. The Oberrat was established as a “court of first instance for all civil cases in which one or both parties were exempt from local justice,” and its members included trained lawyers.39 During the course of the sixteenth century, its tasks expanded to include a crucial position in the administration of criminal justice.40 Although this upper council was officially entrusted with the besserung, auch uns unnd der freuntschaft ain abtrag nach zimlichen unnd billichen Dingen geschehe.” 37  For a discussion of the influence of disputing parties and their strategies on the evolution of substantive and procedural law, see Dinges, “Justiznutzungen als soziale Kontrolle”. 38  See Landwehr and Simon, Repertorium der Policeyordnungen der Frühen Neuzeit, p. 556. 39  See Vann, The Making of a State, p. 63. For a detailed overview of Württemberg’s administrative system, see Wintterlin, Geschichte der Behördenorganisation in Württemberg. 40  See Schnabel-Schüle, p. 72.

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supervision of criminal cases only in 1572, the records show that the council was already guiding local officials through legal investigations before that date. The early stage of proceedings came to be called the processus informativus, a term for the first stage of the Roman inquisition procedure.41 The sources allow for a reconstruction of the sequence of events during the processus informativus. As a first step, the Vogt collected evidence, such as witness testimony concerning the circumstances of the slaying and the reputation and social standing of victim and slayer, and inquired into the financial situations of both parties. If the slayer had been lucky enough to escape, this latter inquiry was more extensive, and involved the Vogt making an inventory of his goods. In case the slayer was contumacious on the day of the trial, the Vogt would proceed with the confiscation of his goods. The Vogt summarized his findings in a report which he sent to the Oberräte. These reports were not formalized documents. Although they contained notes on the subjects just mentioned, the writing could vary in length, detail and expression. The Oberräte then reviewed this information and sent a summary to the duke with suggestions on how to proceed further, for example, by initiating a trial. Usually, the duke signed off on these suggestions, which could then be transmitted to the Vogt. If a trial occurred, the inquisition procedure that had begun with the processus informativus was replaced by the so-called fiscal accusation procedure, where the Vogt took the part of the fiscal accuser acting as prosecutor for the Duke of Württemberg.42 Local judges did not retain their power of adjudication; their suggestions for verdicts had to be approved by the Oberrat. The Oberräte

41  See Karl Härter, “Strafverfahren im frühneuzeitlichen Territorialstaat” for a discussion of the various stages of the inquisition procedure in use in early modern Germany. 42  See Schnabel-Schüle, Überwachen und Strafen, pp. 108, 118. The fiscal accusation procedure was based on the ex officio principle, namely that all crimes were public matters and must therefore be prosecuted and punished by the state. Proof was based on testimony and the confession of the offender. Torture could be used to force this confession (For a nuanced discussion of the use of torture in early modern Europe, see John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Regime (Chicago, 1977).) Unlike the inquisition procedure, where the investigation and the finding of a verdict were both conducted by a judge, a state official acted as prosecutor and supervisor of the investigation during the fiscal accusation procedure, while the verdict finding was handled by a judge. For further reading, see Härter “Strafverfahren im frühneuzeitlichen Territorialstaat,” p. 462. The term “fiskal” referred to the fact that this official was originally also responsible for the territorial treasury, see Albrecht Cordes, “Fiskal,” in Handwörterbuch zur deutschen Rechtsgeschichte, eds. Albrecht Cordes, Heiner Lück, Dieter Werkmüller and Ruth Schmidt-Wiegand (Berlin 2008), vol. 1, cols. 1584–1585.

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changed or approved verdicts in consultation with the duke. Thus, “without his placet, no verdict was valid.”43 This centralized judicial system based on ius commune intersected flexibly with extrajudicial modes of conflict resolution during the sixteenth century. Since the law on homicide did not necessitate a trial as a matter of course, but left the decision between trial and agreement to ducal discretion, the legal process could be interrupted and turned into an extrajudicial settlement. After a homicide occurred, the processus informativus was initiated as a matter of course, but extrajudicial activities also took place alongside it. During the processus informativus, slayers and injured families might be in contact with each other. Informal support gathering, networking activities, mutual approaches, and exploratory talks, along with the writing of letters of supplication to the ducal administration occurred and could overlap or intersect with official activities during the processus informativus. In the case of Ludwig Heil who killed Hans Wagner in 1552, his mother immediately approached the victim’s family to begin negotiations, while her son composed a letter of supplication to the duke during his arrest.44 Officials such as the Vogt, bailiffs or judges could play a role in these informal networks, too, such as by supporting the parties and by reporting successful negotiations to the Oberräte. In Heil’s case, his relatives were able to win the support of the Obervogt, who wrote a letter of supplication on his behalf.45 While the collection of evidence was in full sway, disputing parties and even ducal officials could be working towards or thinking about a future extrajudicial agreement. These parallel activities meant that a fluid transition from trial to agreement could take place at any stage. If the slayer had escaped after his homicide, like Sonder Gunzenhauser and Barbara Reuter’s husband, it was either during or after the processus informativus that a switch to arbitration took place, usually in response to letters of supplication or as a result of the discovery of evidence uncovered during the primary investigations. Slayers managed to flee in most cases, perhaps helped by friends and neighbours, despite the fact that bystanders were legally obligated to pursue and catch them.46 In the few extant cases 43  Schnabel-Schüle, p. 76: “Kein Urteil konnte ohne sein Placet rechtswirksam werden.” 44  See HstA A 209, Bü 243, letter from Ludwig Heil, 1552 and letter from Barbara Heil, 1552. 45  Ibid., Letter of the Obervogt from August 16, 1552. 46  See Schnabel-Schüle, pp. 167ff. for a discussion of communal resistance against ducal norms. The administration’s dependence on community cooperation meant that subjects could often choose either to conform to the norms set by the duke and denounce other community members, or to exercise solidarity with offenders. In cases of manslaughter, neighbors and bystanders apparently often showed such solidarity. For a similar analysis, see Scribner, “Police and the Territorial State.”

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in which slayers were arrested and a settlement resulted, the trial had already begun. In Heil’s case the trial was concluded, but instead of sending a verdict, the judges asked the duke for mercy.47 Thoman Frytag’s trial began after his arrest in 1562, but was halted when the Oberräte learned that he had negotiated an agreement with the family of the deceased.48 Justice was flexible: the Oberräte could switch between punitive and restitutive justice, making it possible to choose retribution or to give the slayer a chance of restitution. But even if they agreed to such a switch, the negotiation of agreements remained connected to the official judicial domain. Although only a couple of such agreements have survived, that concluded between Ludwig Heil and the family of Hans Wagner illustrates the intersections between extrajudicial and judicial proceedings. When the agreement was reached, both parties swore on the Gerichtsstab (“judgment staff”) to keep its terms.49 This object signified the judge’s jurisdictional authority, and was held by him while a verdict was pronounced.50 Local officials from the home towns of Heil and his victim are named as representatives and negotiators on the parties’ behalf, and other local officials are mentioned who acted as go-betweens when negotiations had reached an impasse.51 Once the agreement was reached, the Vogt sent a copy of the agreement to the Oberräte, who eventually confirmed their promise of mercy and allowed Heil to return to Württemberg.52 The sources suggest that the fine the slayer had to pay to the ducal administration was determined in relation to the sums he agreed to pay to the relatives of the victims. When the Vogt sent the copy of the agreement, he specified that Heil was very poor and 47  See HstA A 209 Bü 243, described in the letter of the captain of Schorndorff (where the homicide had occurred) from August 35, 1552. 48  See HstA A 237a Bü 29, Konzept of the Oberräte from August 11, 1662. The Oberräte suggested that the duke accept the agreement. Unfortunately, this document is the only surviving record of the case. 49  HstA A 209 Bü 243, record of agreement from December 21 (“Thome des hailigen zwelffbotten tag”), 1556: “… jeder insonders an den gerichtsstab glopt.” 50  For more information on the ceremonial uses of the Gerichtsstab in medieval and early modern south-west Germany, see Walter Müller, Fertigung und Gelöbnis mit dem Gerichtsstab nach alemannisch-schweizerischen Quellen (Sigmaringen, 1976). Forms of official supervision and registration of negotiation proceedings and agreements were common in other territories and cities in early modern Germany; see, for example, Otto Rieder, “Totschlagssühnen im Hochstift Eichstätt. Nach Beispielen aus dem 14. und 16. Jahrhundert,” Sammelblatt des Historischen Vereins Eichstätt VI (1891), 1–58, VII (1892), 1–37, VIII (1893), 1–30. 51  See HstA A 209 Bü 243, Agreement from December 21, 1556. The negotiators with official positions were among others the Vögte of Beilstein and Bietigheim and the city scribe of Bietigheim. 52  See ibid. Letter from the Vogt of Beilstein with the Oberräte’s answer from May 17, 1557.

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that his mother had had to vouch for the sum he owed to the injured party. On account of Heil’s poverty, the Oberräte determined that he should pay only a minor fine that was commonly reserved for lesser offenses.53 In other cases, the fine was set at half the sum the slayer owed to the injured party.54 Extrajudicial and judicial justice were thus not separate realms, but remained closely intertwined throughout the settling of a homicide case. This flexible system acknowledged late medieval traditions of private restitution, but also indirectly validated concepts of gute policey and ducal authority. Francisca Loetz’ research indicates that informal communal methods were used to stabilize community and could thus serve governmental goals during the early modern period.55 Governments often preferred agreements to judicial solutions as a means of promoting social peace and communal wellbeing. Compromise, negotiation, and the restoration of social relations was as important in the early modern period as the demonstration of a ruler’s power through the harshness of the law. When negotiations were slow in progressing, in the case of the slayer Jörg Freiberger in 1553, the Oberräte explicitly stressed their preference for an amicable solution in a letter to the Vogt.56 Arbitration also made sense financially, and thus satisfied the fiscal demands of gute policey. On the one hand, monetary compensation for the family of the injured party prevented them from becoming a burden on their community. On the other hand, arbitration saved local officials time-consuming trials and their adherent costs. The Oberräte explicitly promoted arbitration in cases of civil disputes and minor trespasses for such reasons. In several rescripts, for example from 1573 and 1582, the Oberräte commanded the Vögte to discourage people from suing each other, while litigants who initiated proceedings out of malice rather than necessity were to be punished. The decisions of arbitrators were also to be accepted without further appeals.57 In these various ways it thus became the duty of the Vögte to promote extrajudicial arbitration whenever possible. These ordinances also lamented the cost of trials and the length of 53  See ibid. 54  See for example HStA A 209 Bü 651, 1586, note of the Oberräte, March 29, 1586. 55  See Loetz, “L’infrajudiciaire.” 56  See HstA A 209 Bü 1897. The Oberräte asked the Vogt in a letter from November 16 to “order the officials in Tübingen to work towards a reconciliation and to find out if the injured party would agree to settle with “the hunters” (in reference to Jörg Freiberger and his accomplices, all of which were hunters) in an amicable manner” (“… den amptleuten zu Tübingen bevelhen liessen, in der sachen alls fuer sich selbst güetlich zu handeln, ob sie des entleibten freundschafft, mit inen den Jegern, Inn der Güettin vertragen möchten …”). 57  See Reyscher, Vollständige, historisch und kritisch bearbeitete Sammlung. Vol. IV, pp. 427–439.

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trial proceedings.58 When the Oberräte suggested to the duke to stop the trial of the slayer Endris Brunnen, one of their arguments was that the slayer was unlikely to be executed.59 This pragmatic argument points towards a reluctance to proceed with a trial that would end without a harsh corporal sentence. Rather, an agreement would result in a monetary fine for the ducal treasury at the same time avoiding a time-consuming and expensive trial. While agreements were in accordance with gute policey, this flexible system comprising both extrajudicial and judicial solutions also promoted ducal authority. According to the law of 1515, the duke could choose between the “harshness of the law” and “mercy,” where “harshness” refers to trials ending with corporal punishments and “mercy” to agreements. Interestingly, there are no records of homicide trials ending with mild sentences, which could also be a way to symbolize mercy. Loss and destruction of evidence may account for this fact, but it is also possible that ducal authority was suspended between harsh trial verdicts and extrajudicial justice. Both options underscored his function as divinely sanctioned law-maker with power over the life and death of his subjects. He also possessed the authority to stop the legal machinery at any point. Mercy was an important prerogative of the duke, and served to establish the picture of the mild and benevolent Landesvater (“father of the Land”), who was reportedly unable to sign a death sentence “without tears in his eyes.”60 The processus informativus as a prelude to agreements served to heighten the display of his mercy after the initiation of legal proceedings had already indicated his judicial might. Agreements and trials thus worked together to create a fluid legal system, one in which duke and Oberräte could decide from case to case how to weigh the pragmatic and ideological benefits of a trial against those of an agreement. But although no agreement could be made without ducal permission and ducal officials remained involved in the process, they did not orchestrate solutions for disputing parties like puppeteers. The cooperation between ducal 58  See ibid., e.g. p. 427. 59  See HstA A 237a Bü 29, Konzept of the Oberräte from July 2, 1560. The designation HstA A 237 a Bü 29 refers to a file that contains a collection of so-called Konzepte, i.e. draft letters with suggestions of the Oberräte in criminal cases. Such Konzepte were written in an informal hand (for example, words were frequently crossed out) and usually copied in a more formal hand to be included in a case file. Some case files contain both the Konzept and the formal copy of the Oberräte’s letters. In these cases, the Konzept and formal copy do not vary regarding their content; compare, for example, HstA A 209 Bü 1897, draft letter from October 15, 1553, with the formal letter from October 16, 1553 in the same file. 60  Schnabel-Schüle, Überwachen und Strafen, p. 80: “… nur unter Tränen …” For further discussion, see ibid., pp. 76–80.

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administration and local communities shaped legal practice and allowed disputing parties to influence its course. Although the Oberräte took into account Roman rules of evidence, their decisions about which homicides could be settled by agreement might be influenced by their desire to shape peaceful communities and by the claims of private parties to restitution. The following section analyses various circumstances that could sway the Oberräte when deciding on an agreement, and looks at the role of disputing parties in this process. Restitution and Evidence: The Influence of Private Parties The parameters for the decision between trial and agreement in the homicide clause from 1515 were based on the ius commune concept of intentionality and the claims of private parties to restitution. In their deliberations about the settlement of homicide, the Oberräte had to juggle the investigation of a slayer’s intent with the wishes of the victim’s family. Such delicate negotiation was not permitted, however, in cases of “evil” and “intentional” homicides. The Oberräte drew the line when it came to murder: some slayings could immediately be classified as intentional, making the possibility of extra-judicial agreement out of the question. Robbery, murder, or slayings committed in secrecy were considered reprehensible in both customary law and ius commune. In Württemberg they were always considered intentional, and there was little leeway for negotiation.61 At most, mercy might extend to the kind of death a slayer could expect.62 Slayers of low station, such as vagrants or wanted thieves without ties in the local community, likewise had little chance to settle acts of homicide through an agreement. Between slayings like these and more obvious cases of self-defense there existed a wide range of killings resulting from quarrels. The Landesordnung did not refer specifically to such acts; there was no mention of a negotiable manslaughter. There was only the differentiation between evil, intentional homicide, which could not be negotiated out of court, and unintentional homicides, such as “self-defense” and “others,” the latter probably referring to cases of accident and negligence. We might speculate that tradition rendered arbitration culturally acceptable in cases of manslaughter that were not strictly self-defense. At the same time, several of the Oberräte were always trained in ius commune and surely aware of the category of Excess that made allowances 61  Slayers who had committed a robbery or murder routinely stood trial and were executed by beheading, their bodies left to rot on the wheel. See for example a trial for robbery murder in 1535, see HstA 43 Bü 9. 62  See e.g. HstA A 209 Bü 1217, 1582.

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for slayers violating the rules of self-defense in the heat of the moment. From 1532 onwards, art. 142 of the Carolina provided additional legitimation for judicial mildness in such cases.63 It is therefore probable that these legal parameters contributed to the willingness of the Oberräte to stretch the definition of what constituted an unintentional slaying in order to include a broad spectrum of manslaughter cases that could be settled by agreement. The decision about whether a slaying was closer to self-defense or whether it fell in the vicinity of murder was a process that began with the collection and evaluation of circumstantial evidence. Such evidence concerned the immediate context of the slaying, such as the course of events leading to it or information about the weapons used by the disputants, but also included facts about their reputation and social status. The extensive discussions of a slayer’s mental state in ius commune writings made little dent in sixteenth-century Württemberg homicide records. During the processus informativus local officials reconstructed the order of events leading to a slaying, analysing the behaviour, actions, and provocations occurring during a quarrel and investigated the relationship of the disputants prior to the killing. It was likewise important to establish the nature of the wound based on a medical inspection of the corpse, to determine the weapon the slayer had used and to inquire into the reputation and social standing of both slayer and victim. These factors were enumerated in Article 143 in the Carolina and corresponded to so-called praesumptiones (“presumptions”) discussed by law professors trained in ius commune. Together, they constituted circumstantial evidence from which a slayer’s intent might be presumed in the absence of a confession or of conclusive witness testimony.64 Judgments of a slayer’s intent based on praesumptiones could not result in a poena ordinaria. Instead, the judges applied a poena extraordinaria, an arbitrary punishment. This meant that a slayer was saved from the death penalty, though the sanction indicated that unintentionality could not be proven without a doubt. Although the extant Württemberg sources make no references to ius commune authors or to the Carolina before 1573, we may speculate that ius commune theories of evidence and praesumptiones informed the investigation of homicides. Schnabel-Schüle speculates that it is likely that the Carolina was used in Württemberg from the 1530s onwards.65 Circumstantial evidence 63  See Kaufmann, Carolina, p. 92. 64  See ibid., p. 94. For a discussion of the importance of praesumptiones in early modern German trials, see Alexander Jendorff, Der Tod des Tyrannen. Geschichte und Rezeption der Causa Barthold von Wintzingerode (Munich, 2012), p. 134. 65  See Schnabel-Schüle, Überwachen und Strafen, p. 81, who bases her argument on the research of the legal historian Carl Georg von Wächter.

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corresponding to ius commune praesumptiones was, for example, an important factor in the cases of Ludwig Heil and Stoffel Daubennest. When the Oberräte decided about the fate of Ludwig Heil, they took into account the medical evidence. The doctors doubted that the victim’s wound had caused his death and assumed that the victim had simply neglected to care for his wound properly.66 According to ius commune, a wound that was not lethal could indicate that the slayer had not meant to kill his opponent. For the Oberräte, it was an important argument that supported their decision to allow a settlement. In the case of Stoffel Daubennest, who killed Hans Anden during a fight in 1562, other praesumptiones convinced the Oberräte to suggest that the duke allow the negotiation of a settlement. In this case, the processus informativus had yielded uncertain results as far as the respective behaviour of the disputants was concerned. It could not be established “who had been the first to provoke, or how the fight had progressed.”67 Yet the processus informativus produced important evidence about the prior relationship between the disputants and about the reputation of each, constituting important praesumptiones that could indicate a slayer’s intent. This showed that Anden, the victim, had repeatedly provoked and threatened Daubennest and his father prior to the fight, to the extent that the slayer even had to ask the local bailiff for aid.68 In most cases, consideration of circumstantial evidence did not rest on one fact alone. The Oberräte generally enumerated several factors to substantiate their suggestions to the duke. In Daubennest’s case, the Oberräte also considered the respective reputation of the disputants. The victim had been a “useless man,” whereas the slayer came from a respectable family: his father had worked in the service of the duke and “always behaved well and in a law-abiding

66  See HStA A 209 Bü 243, testimony of the attending barber-surgeon Jerg Ferber, undated. Ferber claimed that Wagner “had not been injured in his brain, but God’s hand must have touched him, otherwise he would maybe not have died from this wound” (“… sei auch nit hirnwund gewesen, aber die hannd gotes hab inne den entleipten, angenipft, ehr were sunst villicht der wunden nicht gestorben”). 67  See HstA A 237a, Bü 29, Konzept of the Oberräte from September 14, 1662: “… welcher dem andern ursach gegeben, oder auch wie sich die Handlung verloffen …” Unfortunately, a draft of the suggestions made by the Oberräte to the duke is the only surviving record of the case, but it is likely that he confirmed their suggestion, as he did in all other sixteenth century cases. 68  Ibid.: “… das der entleibt … den baiden Daubennest, Vater und Son stets feind … dz Veit Daubennest den Schultheissen um friden … angeruft” (“… that the victim … had always been the enemy of Veit Daubennesst and his son…. so that Veit Daubenness asked the bailiff to secure the peace …”).

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manner.”69 Reputation was another important praesumptio, but was also especially important to government officials seeking to implement ‘good policy’. Increasingly, authorities were more favourably inclined to grant mercy during the early modern period if they considered the offender a ‘useful subject’ who lived according to the values of government philosophy.70 Gute policey aimed at the production of hard-working and obedient subjects. By contrast, the term “useless subject,” used by the Oberräte for Hans Anden, denoted a subject’s opposition to a lifestyle beneficial to the common good. If the offender’s transgression had interrupted an otherwise blameless lifestyle, a good reputation could tip the balance towards forgiveness. In the case of Hans Igel, who killed Hans Binder in 1562, the investigation indicated that Igel had hit Binder with a pig spear even though bystanders had just made peace between the men. The breach of a peace constituted a grave violation of the land law.71 But the Oberräte permitted Igel to settle the homicide with an agreement, taking into account his faithful service to the duke and that of his late father.72 Yet both Igel and Daubennest could throw even more into the balance than their reputation, as in both cases the Oberräte also took into account that the family of the victim had already agreed to negotiate a settlement.73 While the collection of evidence was a crucial step towards making a decision between intentional and unintentional slayings, the Oberräte took seriously the legal obligation to consider the claims of injured parties. Merciful treatment was tied to the wishes of the deceased’s family. When the Oberräte considered the case of the slayer Joerg Freiberger, they wrote to the duke that they could not suggest mercy at this point because Freiberger had not yet come to terms with the family of his victim, since “according to the Landesordnung,

69  Ibid.: “… ain unuetz mensch”, “… sich je und lang wesentlich und wol gehalten.” 70  For a discussion of utilitarian aspects of policey, see, for example, Härter, “Social Control,” p. 61. 71  See Scribner, “Police and the Territorial State,” p. 112. 72  HstA A 209 Bü 237a Bü 29, draft letter of the Oberräte from April 14, 1562 : “… euer f.g auch derselben vatter … wol immer lang gedienet hatt …” ([The slayer] “had served your ducal Grace and his Grace’s father for a long time.”). 73  Ibid.: “… und dann er Igel sich uf euer efg Begnadigung mit des abgeleibten freund­schaft … vertragen …” (“… and then he, Igel, in expectation of your Grace’s mercy, had reconciled with the family of the deceased”…) and HstA A 237 a Bü 29, Konzept of the Oberräte from September 14, 1662.: “… dieweil sich da er veitt von wegen seines sons mitt sein des leiblosen weib und kindern bis uff euer f.g. bewilligung vertragen …” (“since he, Veitt, had reconciled with the wife and children of the deceased in the matter of his son in expectation of your Grace’s mercy …”).

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only those slayers who had settled with the family, were entitled to mercy.”74 The injured family’s interest was an important factor that could outweigh other pieces of circumstantial evidence, as in the case of Bartlin Geringer in 1562. When Geringer killed Michel Nell and fled to the asylum of Reutlingen, the Oberräte rejected his request for mercy.75 According to the inquisition of the Vogt, Geringer and Nell had quarrelled over a debt. Nell wished to end the quarrel and had left Geringer, but the latter followed him and continued to provoke him until a fight ensued. He struck Nell a fatal blow from behind. Clearly this was not self-defense, and the blow constituted a strong presumption of intentionality. Geringer was not discouraged, however. After some time had passed, his family turned to the Oberräte with another supplication. They had news: Bartlin Geringer had reconciled with the family of the deceased and had negotiated an agreement with them. They asked that the duke recognize the agreement and allow Geringer to return home after the payment of a fine.76 In their report to the duke, the Oberräte also mentioned that the Vogt had informed them of Bartlin’s good reputation: Bartlin was known as a peaceful man, but the victim had been quarrelsome when drunk. The Oberräte reconsidered. Bartlin had committed a suspicious deed, as they wrote to the duke, but he had been in exile for two years, had kept himself well, and had now negotiated an agreement. They suggested that the Vogt accept the settlement and impose a fine of 50 Gulden on Geringer.77 Geringer’s reputation became an important factor once he had negotiated an agreement with the family of the deceased, although we might ask why this not happened earlier, since the Vogt’s inquisition had surely established the fact already. It may be that his reputation had not outweighed the “suspicious” circumstances of the slaying, although it became more important once the victim’s family decided to settle. At this point, the Oberräte were willing to allow respectable citizens to make peace with each other. 74  HstA A 209 Bü 1897, note from the Oberräte from February 2, 1554: “… dwyl vermög der Landesordnung todschläger nur sollen begnadigt … kommen dann vorhin mit der freundschaft uss …” 75  See HstA A 237a Bü 29, Konzept of the Oberräte from 1562. Geringer wrote several supplications and offered to stand trial, but asked for a safe conduct, which would have equalled a promise that the death penalty would not be applied. Safe conducts will be discussed later on in the chapter. 76  Ibid.: “… mit meldung das er sich (doch uff euer f.g. gnedige bewilligung) mit des entleibten freundschaft albereit vertragen hab, daneben sie sich auch von seinetwegen aines abtrags gegen eurer f.g. erpieten …” (“that he had settled with the deceased’s family (pending ducal permission) and that they also offered to pay your ducal Grace a fine …”). 77  See ibid.

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The timing of the switch between paradigms of judgment—between punitive and restitutive justice—depended on a variety of factors. If the Vogt‘s inquisition produced enough indications that a slaying had been committed deliberately, that secret murder or robbery murder were not at hand, and there were as yet no indications that the slayer had reconciled with the victim’s family, then the Oberräte initially refused the slayer’s request for mercy. But once the injured family showed an interest in a settlement, the Oberräte might reconsider. By this point they were no longer primarily concerned with the slaying’s circumstances, but also with communal interest. Once the injured party became involved in a case, justice was no longer mainly a matter of assessing circumstantial evidence, since it became a matter of whether quarrelling parties should be allowed to make peace and pursue their wellbeing, and thus that of the community they lived in. Slayers knew that they had better hopes of a favourable outcome from the Oberräte if they had already settled with the injured party; they therefore tried to reach an agreement before they wrote their first supplication. The Vogt then reported to the Oberräte that the slayer had settled pending His Grace’s merciful permission.78 There were some limits to the willingness of the Oberräte to consider the wishes of the injured family, however. In a note to the duke in 1566 concerning the slayer Hans Geyster, the Oberräte argued that they could not recommend mercy, even though an agreement with the injured family already existed.79 Hans Geyster had killed his victim after breaking a sworn peace, and hit him firstly “from behind” and then once again as he was lying helplessly on the floor.80 The Oberräte thus argued that the victim “was killed in a malicious manner,” making the case apparently too close to murder to be included in the broad category of unintentional slayings.81 In the case of another slaying that the Oberräte considered especially vicious, utilitarian considerations of the injured family’s welfare gained the upper hand. In a case from 1561, their concern for the victim’s relatives benefitted the perpetrator. Bernhart Kirchler had killed Jacob Mueller von Gueltlingen. The victim had tried to make peace in a quarrel between Kirchler and another man, at which point Kirchler had turned and killed the unfortunate peacemaker. The Oberräte argued that this homicide was so evil that they were reluctant to grant him mercy, even though he had 78  See, for example, HstA A 237a Bü 29, Konzept from 1562 or ibid., draft letter of the Oberräte from April 14, 1562: “uff euer f.g. begnadigung” which can be translated as “in expectation of your ducal Grace’s mercy.” 79  HStA A 237a Bü 29, Konzept of the Oberräte from June 26, 1566. 80  Ibid.: “… hinderwertz und och hernach lieglingen geschlagen …” 81  Ibid.: “… also böslich entleibt hat …”

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settled with the victim’s family. But they pitied the widow, “who was poor and had several small children.”82 It was also improbable that the slayer would ever be caught, and should he die in exile, the widow would never receive financial compensation. They therefore suggested that the duke allow the settlement of an agreement.83 This act of mercy was directed not so much at the slayer as at the family of the deceased. Since his deed had been so vile, the Oberräte suggested that the duke impose both a high monetary fine and a shaming punishment. Kirchler was banned from frequenting taverns and from carrying weapons for the rest of his life.84 In the case of the slayer Joerg Freiberger, the Oberräte told the Vogt to see what could be done about reconciling the slayer and his accomplices with the victim’s family, even though they considered Freiberger to have killed his victim “to avenge an old grievance.”85 They nevertheless hoped that the family of the deceased “could be reconciled amicably” with Freiberger and his accomplices, since “the friends of the victim were very poor.”86 When the Oberräte decided on the fate of the slayer Daubennest, mentioned earlier, they also took into account the financial situation of the family of the deceased, because “the wife and the children were very much in need of money ever since the damage caused by a hailstorm.”87 Injured parties counted on the preparedness of the Oberräte to help them achieve financial restitution. In 1560, the sister of a homicide victim pleaded with the Oberräte to allow a settlement, since she needed money. A decision is not extant in this case, but it is likely that they reacted favourably to her request.88 Restitution was a weighty factor in the decision-making process of the Oberräte. There was a public aspect to private atonement, not only because of the fine that accompanied every agreement, but also because restitution had 82  HstA A 209 B 644, letter of the Oberräte from July 22nd, 1561: “… des entleibten Hausfrau arm und vil kleiner onerzogener kindlein …” 83  See ibid. 84  See ibid. 85  See HstA A 209 Bü 1897, Letter of the Oberräte to the Duke from November 16, 1553: “… ain alte sach geäckelt …” 86  See ibid.: “… in der Güettin vertragen …”; “… in bedenckung das seine freund gantz arm sind …” See also ibid., a note from the Oberräte from February 12, 1554, in which they issued an order to the local officials to attempt reconciliation between Freiberger and the victim’s family. The note is signed by the duke. (Compare also fn. 62 above). 87  HstA A 237a Bü 29, Konzept of the Oberräte from September 14, 1662: “… auch sie die wittib, kinder (so durch den nechsten Hagel och geschlagen worden) … gelts hochnottürftig sind …” 88  See HstA A 209 Bü 245, letter from the Vogt, July 14, 1560.

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the potential to repair some of the damage caused by a homicide to community members and to the community as a whole. But the course of negotiation was not always smooth; there was no set path towards reconciliation, and the social interactions that produced it could not be predicted. The next section describes possible strategies of disputing parties and their consequences for the ducal administration. Staking Claims: Strategies of Restitution and Retaliation In most cases, injured parties desired a speedy reconciliation in order to receive financial compensation as quickly as possible. But reconciliation could also be slow and fragile, and might be hampered by lust for vengeance on the part of victim’s kinfolk. Blood vengeance was not permissible according to the law, but there were other ways to torment the slayer that could bring about vengeance as well as monetary compensation. The relatives of the victim of Jörg Freiberger, for instance, increased the slayer’s anxiety by demanding more than he could reasonably afford to pay.89 Injured relatives could play on the factor of time, and thus keep the slayer on tenterhooks before agreeing to negotiate. They knew that the slayer depended on them, and might try to contact them again and again.90 In 1552, the relatives of the victim in a homicide case succeeded in lengthening the extent of the period of time the slayer had to spend in exile. When the aforementioned Ludwig Heil had killed Hans Wagner, Barbara Heil, the slayer’s mother, immediately approached the Wagner family and begged them to agree to settle extrajudicially.91 But the Wagners took their time, resulting in Ludwig Heil remaining in exile for no less than four years before they finally consented to an agreement.92 Here, the 89  HstA A 209 Bü 1897. Freiberger wrote in a letter of supplication from February 16, 1554 that “they asked for such an unreasonably high sum, 200 Gulden, and I am a poor man and do not know how to pay it.” (“… dieweÿll sie aber so ain ungepurliche grosse summe, Nemlich zweÿhundert gulden, von mir zůhaben gefordert, unnd ich dann sollichs, als ein Armer gsell, nit khann noch waiß zůerstatten …”). 90  I have, however, also found examples of family members who refused any negotiation and were thus prepared to doom the slayer to permanent exile. The brother of Sonder Gunzenhauser’s victim adopted such an unconciliatory stance, but he did not prevail because he was a man of “little impact.” HstA A 209 Bü 244, letter of the Vogt from August 31, 1559: “… auf wöllichen nit vil gehalten wird …” But in a case from 1562, the family remained uninterested in negotiations, see HstA A 237a Bü 29, Konzept of the Oberräte from May 20, 1560. 91  See HstA A 209, Bü 243, letter from Barbara Heil, May 1552. 92  The homicide occurred in 1552, see A 209 Bü 243, e.g. Heil’s letter of supplication from August 1552 and the agreement from May 1557.

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prospect of immediate vengeance triumphed over the prospect of immediate material gain. In such cases, the Oberräte did not order the injured party to reconcile with the slayer. They might, however, ask local officials to help negotiation proceedings or to act as arbitrators, as they had done in Jerg Freiberger’s case.93 Although the paucity of the sources makes it difficult to generalize, these examples underscore the administration’s interest in amicable agreements. When the duke permitted Heil to settle his homicide by agreement, he asked the local Obervogt and the captain of Heil’s regiment to help reconcile the slayer with the reluctant family of his victim. The captain in turn asked the Vogt to help them in this undertaking.94 But although the captain explained these attempts at reconciliation in a letter from August 1552, the family of the victim did not consent to an agreement until 1556. Why did the ducal administration not take more energetic measures to convince these reluctant parties to negotiate an agreement? There were advantages to allowing disputing parties to work out their differences on their own. The duke gained the opportunity to distance himself to some extent from the responsibility for the punishment. In Heil’s case, the obstruction was not caused by the duke, who had granted him mercy, but by the victim’s family. Non-interference created a neutral space for the duke in which he and his officials acted as mediators and promoters of peace to whom slayers and their families turned for aid.95 In return, duke and Oberräte earned their subjects’ gratitude. The promise of a settlement transformed the slayer, at least on paper, into a grateful and loyal subject. In his letter of supplication to the duke, Heil wrote that: “in the future and with God’s help, I will behave as an honorable, pious, faithful and loyal subject, as my oath commands me so that His Grace will look upon me with pleasure and

93  See above, fn. 92. See also HstA A 237a Bü 29, Konzept from May 20, 1562: When the Oberräte allowed Hans Birkhard to negotiate a settlement, they ordered the Untervogt of Schorndorff to act as arbitrator. (“… auf sollches ist auch der zu Schorndorff Undervogt zu der Sach mit des entleibten freundschaft guettlich zehanden und zethedigung befehlen worden …”). 94  See HstA A 209 Bü 243, letter from the captain of Schorndorff to the Vogt of Schorndorff, August 25, 1552. 95  Barbara Heil turned, for example, to the Vogt with the plea to support her request for mercy that she had sent to the duke; see HstA A 209 Bü 243, letter from August 4, 1552. For a comparison, see also Valentin Gröbner, “Der verletzte Körper und die Stadt”, who demonstrates how Nürnberg’s city councillors used arbitration to promote their role as peacemakers.

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complacency, and I will continuously and faithfully strive to deserve the mercy of the duke, with my life, possession and blood.”96 If families of victims took their time before reconciliation, they can be seen to have had a hand in the punishment of the slayer by administering (with tacit ducal consent) temporary banishment as a sort of unofficial punishment. Even if they had agreed to settle, the agreement in Heil’s case indicates that they had some influence over the slayer’s freedom of movement after his return to Württemberg. The agreement specified that Heil promised to the Wagner family to avoid their home village and its immediate surroundings during his lifetime.97 Such provisions provided ways of avoiding contact between the parties to prevent further outbreaks of hostility. Agreements were pragmatic solutions. Settlements reintegrated offenders who might still be useful to their community and preserved disputing parties from financial ruin. By obligating the parties to maintain at least outwardly civil relations, they also promoted social peace. But agreements did not necessarily guarantee a complete restoration of social relations.98 One could speculate that the tension between families after a homicide was an additional reason that rendered forced reconciliations unattractive to ducal officials. If the duke ordered the negotiation of an agreement before the injured party was ready, their lasting enmity could cause serious problems for the reintegration of the slayer into his community. Of course, a slayer who had been kept in exile for several years and returned to his community dirt poor, as was the case with Ludwig Heil, might also harbour resentment for some time to come. But, for a little while at least, the slayer who had been away from his kin and connections and experienced financial difficulties as a result was clearly the weaker opponent, one who could be expected to be concerned primarily with re-establishing his place in the community. While legal practice thus strengthened the position of the injured party and weakened that of the slayer, his position vis-à-vis the injured party must be put in perspective. Even if the victim’s family could now torment the slayer 96  HstA A 209 Bü 243, 2nd letter from Heil to the council, 1557: “… will ich mich mit gotes hilff fürthin erlich, frömbklich, woll und wie einem getreuwen und gehorsame underthanen seim aidt nach zimpt und gepürt halten, dermaß und gestalt, dz E.F.G. und meniglich darab gute Ersettigung auch gnedigs und gut wol gefallen haben solllen, unnd will darzu solich begnadigung umb E.F.G. die tag meines lebens mitt meinem leÿb, gutt und blutt, inn underthenigkeit, und gantz gehorsamlichen beschulden und verdiennen …” 97  See ibid., agreement from December 21, 1556. Similar stipulations were a common feature of agreements in Swiss and German agreements, see, for example, Riggenbach, “Die Tötung und ihre Folgen”, p. 87, or Frauenstädt, Blutrache, p. 130. 98  For a comparison, see Miller’s discussion of examples of tenuous arbitrated settlements in the Icelandic sagas Bloodtaking and Peacemaking, p. 279.

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and keep him in exile, the relative standing of both parties must have influenced the outcome. Once a homicide had happened, slayers and their friends tried to garner as much support as they could muster. Friends, neighbours, and relatives wrote supplications to the Duke to emphasize the slayer’s good reputation. A slayer with influential friends or wealth might have an easier time convincing the injured party to settle. Conversely, if the injured party was of good economic standing and the slayer poor and without connections, he might have to stay longer in exile than he had planned. Unfortunately, the surviving evidence does not allow for further exploration of this subject. But a ducal order that gave permission to negotiate an agreement was only the tip of the iceberg: there was a local microcosm below. Through the local Vogt, who straddled both worlds, the duke was kept informed, but did not take energetic measures to enforce his commands. Villagers and townsmen in Württemberg settled homicides in their own time and according to their own rules. It was up to them to activate their local support networks to gain the upper hand in arbitration proceedings. The settlement of homicide was the negotiation of a contract, not just between disputing parties, but also between the parties and the ducal administration. This contract was unofficial, of course. But the records suggest that ducal mercy obliged those under his rule to behave in certain ways. Once bestowed, mercy could not easily be withdrawn without ideological damage. Problems could occur when matters did not go as planned, and when the parties in question did not quite behave in the way the duke and his advisors trusted them to. When justice consisted of collaboration between communities and ducal government, its course was not always calculable. In this negotiation, the duke was both ruler and partner, and the implementation of his orders further depended on the players’ moves. The players could at times surprise or maneuver the duke into a tight corner, as a complex case from 1562 demonstrates.99 Hans Birkhart had killed Joerg Frank and fled. We know nothing about the slaying’s circumstances, though it must have appeared intentional to Duke Christoph and the Oberräte, who denied the slayer’s request for mercy.100 The slayer, however, had influential friends who interceded on his behalf; having received a letter of support from ducal officials, in addition to the pleas of his family, the Oberräte gave permission for him to return after negotiating an

99  See HstA A 237a Bü 29, Konzept of the Oberräte from May 20, 1562. 100  The letter does not give reasons for this decision, but refers to other documents, such as the summary of the Vogt’s inquisition, which are, however, not extent.

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agreement, and asked local officials to help reconcile the parties.101 But the victim’s family continued to play hardball, apparently with sufficient financial security to indulge their vengeful feelings, and thus doom the slayer to permanent exile.102 The duke did not try to change their decision, allowing the slayer’s family to join him in exile. But he also wanted a fine from the slayer, set at only 15 Gulden on account of his poverty; even at this point, the duke did not want to lose the opportunity to impose some kind of punishment.103 Perhaps the victim’s family, aware of Birkhard’s poverty, became worried that they would hardly receive any money if they agreed to negotiate, and thus preferred exile as a punishment for the slayer of their kin. Birkhard did not pay his fine, however, perhaps in the hope that the duke might still lower it.104 The money unpaid, and his affairs with the injured party still unsettled, he made the mistake of visiting his home village in breach of the rules, which specified that the slayer was not allowed to re-enter the duchy without an agreement, or without having paid his fine. Luck was against him at this point, as he was seen by the victim’s nephew. This nephew was not of age and had been raised by a foster family, though this did not keep him from taking action. After he told the local Vogt of Hans Birkhart’s return against ducal orders, local officials arrested him. The Oberräte, probably in response to a request for further instructions, asked whether Jacob “wanted to initiate a trial at his own cost?”105 They were referring to the private accusation procedure, which still existed alongside the fiscal accusation procedure, although the latter dominated the prosecution of criminal cases. In a private accusation procedure the injured party initiated the trial with their accusation. They not only had to bring their own witnesses, but also had to pay for all trial expenses if they lost the case. The question put by the Oberräte illustrates that they themselves were not willing to initiate criminal proceedings. Jakob Langer 101  See ibid. The document is illegible in parts, although support came from a certain Sebastian Schertlin, who may have been in ducal service. Schertlin (the name may also read Scherrlin) had asked other ducal officals to intercede on Birkhart’s behalf. 102  See ibid. The letter explains that even though the Undervogt tried on ducal orders to reconcile the parties, the injured family, especially the victim’s sister did not agree to negotiate. 103  Ibid.: “… sofern der teter euer f.g. 15 gulden zu abtrag bezalte (dann er gantz arm und unvermöglich sein solle), als dann so möchte er mit weib, kindern, hab und guett aus dem fuerstenthumb ziehen …” 104  This was the speculation of the Oberräte; ibid.: “… villicht in hoffnung solchs abtrags milterung zu erlangen.” 105  Ibid.: “… ob er den verhafften uff seinen costen lautt recht beklagen lassen wöllte?”

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could not yet dispose of any money that might be his in the future, but his thirst for vengeance burned strongly, leading him to offer his future inheritance as security. The Oberräte were sceptical, and wanted to know what the rest of the family thought of Langer’s proposal. Langer was perhaps not old enough to make such a decision, and the Oberräte might have been interested in more immediate financial gratification. But the family created an awkward situation for the ducal advisors. They responded that the arrest had taken place without their knowledge and consent. Nevertheless, since Birkhart had now been caught, they “hoped that the duke might order his officials to try him according to the imperial laws [i.e. to initiate a criminal trial].”106 In the meantime, the young hothead Jakob Langer had told a number of people that “if the duke and his own relatives would let the captured man go free, he as the victim’s relative would initiate a trial according to imperial law … and give his inheritance as security.”107 The Oberräte now turned to ponder this highly complex situation. Two courses of actions, they told the duke, were possible: the duke could either order the Vogt to initiate a trial, or else grant the slayer mercy and allow him to leave the duchy again. There were arguments in favour of each strategy. On the one hand it was certainly true, the Oberräte wrote, that Birkhard’s arrest occurred without the consent of the victim’s family. It had happened only through Jakob Langer’s wish, and he was not of age, and so one could hardly expect his family to pay for a trial. They, instead, had appealed to the duke to prosecute Birkhard. This request was difficult to deny; in his Landesordnungen, the duke strongly emphasized the importance of fighting crime, and represented this fight as a religious duty. To deny the injured family’s wish for a criminal trial at this stage risked undermining the duke’s credibility. From the duke’s perspective, a trial might now be necessary in order to “promote the imperial law and avoid all kinds of rumors.”108 There were, however, arguments in support of a second strategy. The duke himself had not ordered Birkhard’s arrest, and the wishes of an under-age nephew who was not supported by his family need not be taken too seriously. Having promised Birkhard mercy, it was also problematic for the duke to try 106  Ibid.: “… verhoffend euer f.g. wieder von oberkait wegen dem teter das kayserliche recht ergeen lassen.” 107  Ibid.: “… obgleich euer f.g. oder auch die ander freundschafft diesen verhafften ledig liessen, so wöllte er doch als des entleibten vetter, … das kayserlich recht über den teter begeren und all sein guet an ime verrechten.” 108  Ibid.: “… zu fürderung des angeruffenen kayserlichen rechtens und vermeidung allerhand geschreys …”

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him at this point. Furthermore, Birkhard had claimed that he had only returned to the duchy because he wanted to pay the fine the duke had imposed on him—if that was true, the Oberräte argued, “it would be inappropriate for your grace to revise the mercy already promised.”109 The Oberräte were thus presented with a public relations problem. Should they promote the image of the duke as a tough defender of the law, or that of the merciful Landesvater? Clearly, public opinion mattered. But however the decision went, there was no way to forestall rumor and criticism. The Oberräte could not see a clear way out, and so did what was very seldom the case: they refrained from making any suggestion at all, and left the decision up to the duke. Unfortunately, we do not know what the duke ultimately decided. Through his numerous laws, edicts, rescripts, and statutes, the duke cultivated his role as divinely-sanctioned lawmaker. At the same time, he valued his prerogative of mercy.110 The exercise of patriarchal mildness made him the benefactor both of slayers and of victims’ families. But the role of the clement Landesvater came at a price. The settlement of homicide became a negotiation in which duke, slayers, and injured families were partners, although not equal ones; injured families pulled heavier strings than slayers, and the final decision rested, of course, with the duke. But they were partners nevertheless. By acknowledging the claims of the injured family, the duke allowed them some influence over the course the settlement took. But, as the Birkhard case shows, injured families could not only make the life of the slayer more difficult, but could also inconvenience the duke by publicly asking him to become their avenger after he had already committed himself to mercy. Even the slayer, the weakest partner in the negotiation, could make circumstances awkward. The slayer was a potential object of great ideological value, because once the matter was settled, he became a personification of ducal mercy. But this created an obligation for the duke, as the Oberräte explained to him in the Birkhard case. The treatment of the slayer Sonder Gunzenhauser is another good example of this kind of situation. After Gunzenhauser had negotiated his agreement, he asked the duke to lower his fine. In return, he promised to remain a loyal and obedient subject. It was almost as if the duke, once he had agreed to be merciful, had entered into a contract of sorts with the slayer: mercy on his side and gratitude and loyalty on the slayer’s side. A denial of the slayer’s request entailed to some extent an abandonment of help and mercy on the duke’s part. It is also the case that the duke prioritized above 109  Ibid.: “… des zehalben euer f.g. nitt mer wel gebueren wölle, solch ir ainmal gegeben gnediglich decret zu revidieren …” 110  See Schnabel-Schüle, Überwachen und Strafen, p. 78.

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all the prosperity of the community, and did not want to ruin those who killed others with so high a fine as to make them a social burden. Fines were always individually negotiated, and tailored to the slayer’s financial situation. But this provided greater motivation not to withdraw mercy once given, for mercy equated to a promise to further the slayer’s reintegration into the community, one which the slayer might try to exploit. In Gunzenhauser’s case, the Oberräte suggested that the duke lower or forego his fine because of his work “as gunmaker in the service of the duke and the duke’s father,” and because “he always kept himself well and honourably during that time”.111 Slayers profited from the ducal prerogative of mercy, and indeed tried to call upon it directly. The more supplications a slayer could collect to bolster his bid for an agreement, especially from influential supporters, the greater the pressure on the duke. Each supplication asked the duke to exercise the mercy he held out as a promise for his subjects; and each denial undercut this promise and thus diminished the extent to which he could be seen to be governing in a paternal manner. In this game of multilateral negotiations, disputing parties looked for windows of opportunity to assert their claims and contributed to the making of legal practice by using official judicial and administrative channels as well as extrajudicial means of conflict resolution. The settlement of homicide in sixteenth-century Württemberg depended on interlocking formal and informal strategies. The investigation of a homicide began with legalism; the Oberräte ordered the Vogt to initiate the processus informativus, and local officials collected evidence. Meanwhile, as slayers and injured parties began picking tactics, informal communal strategies came to influence the course of proceedings. Behind-the-scenes negotiation resulted in letters of supplication and prepared agreements between slayers and injured families. In the absence of an extensive local police force, the ducal administration depended heavily on communal cooperation, and duke and Oberräte considered extrajudicial solutions an important part of the justice system, even as ius commune increasingly influenced judicial proceedings. Beyond punishment, a slayer whose deed had not catapulted him outside the wide range of negotiable slayings had to make amends. The official recognition of restitution

111  HstA A 209 Bü 244, 1558, order of duke and Oberräte from November 6, 1559 attached and in response to Gonzenhauser’s letter of supplication: “… dieweil der Supplicant meinem gnedigen fürsten und herrn auch weiland seiner f.g herrn vattern hochlöblich gedechtnus als ein büchsenmeister … und sich darunder redlich erhlich … wol gehalten …” [The Oberräte also suggested lowering the fine in the case of Ludwig Heil, see HStA A 209 Bü 243, note of the Oberräte from May 17, 1557. The duke agreed to it in a letter from May 21, 1557].

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as a means of re-establishing social peace and promoting the common good made disputing parties influential players in the resolution of homicide.

Part Two: Towards Trials: Renegotiating Extrajudicial Justice during the Seventeenth Century

The sources allow us to trace the workings of legal practice until approximately the 1570s, after which point the use and function of arbitration began to shift, with the result that the influence of injured parties on the settlement of homicide was no longer as direct or as immediate. The sources indicate that the ducal administration grew dissatisfied with a legal practice that allowed the settlement of manslaughter through agreements without trial verdicts. A case from 1579 concerning a certain Balthasar Hiller provides some insight into changes in the attitudes of the Oberräte. Only a short record of the case survives, comprising the draft of a letter of instruction to the local Vogt. When the Oberräte decided on Hiller’s homicide, they used the opportunity to ponder the value of arbitration. After committing the slaying, Hiller had escaped, and had then turned to the duke for mercy. The Oberräte wrote that it had been “the custom in homicide cases to use mercy if the escaped slayer reconciled with the family of the deceased and if he had spent some time in exile, and to impose a fine on him that was set somewhere in the vicinity of the sum he paid the victim’s family.”112 But, they continued, they were also, “considering whether one should not impose an appropriate monetary fine or some other kind of punishment to evoke greater terror”, so that the slayer would not remain “without punishment.”113 In other words, they wanted Hiller to stand trial. They also gave a reason why Hiller’s case merited such a breach with tradition. The medical evidence demonstrated that the victim had not, as Hiller claimed, neglected to treat his injury, but rather had died from a mortal wound. This kind of medical expertise had counted previously, but factors such as a slayer’s good reputation or the good will of the injured party had often been 112  HstA A 209 Bü 142, note from the Oberräte, May 9, 1579: “Es ist vilmalig vor der zeit gebraucht worden wan sich in dergleichen faellen der thäter mit der freünndschafft verglichen und etwas lange in exilio gewesen, dz hernach … dieselbe uf underteniges ansuchen begnadigt und etwen sovil straf ongevarlich alls er des entleÿbten freünden gegeben, auch eingezogen worden …” 113  Ibid.: “… so wöllen die räthe verners erwegen … ob nich dannoch in terrorem damit einer nicht gar lehr ungestraft ausgehen ain gebuerende gelt oder andere straff gegen diesen und kuenfftig andere fürzunehmen …”

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able to outweigh it. In this case, however, even though they noted that Hiller “was reputed to have behaved well” before the homicide, the Oberräte refused to grant him mercy by allowing an agreement.114 Realizing that the offer of a trial would be insufficient bait to promote Hiller’s return, they sweetened the pill and offered him a safe conduct, or Geleit, both to and from the law.115 Safe conducts were a late medieval tradition.116 An offer of Geleit to the law promised the slayer that he would not be arrested prior to his trial and would walk there as a free man, or auf freiem Fuß (“on free foot”) as the sources often call it. Geleit from the law prevented corporal or dishonourable punishments; the offer equalled a promise of a poena extraordinaria. In a few extant sources prior to Hiller’s case, escaped slayers had asked for Geleit in their letters of supplication to the duke. They wanted merciful treatment, but had not yet reached an understanding with the victim’s family, which meant facing a trial if they returned to the duchy. Unwilling to risk the chance of arrest and a harsh punishment, these slayers asked for favourable trial conditions.117 However, as we have seen, the Oberräte largely promoted reconciliation and agreements rather than trials in homicide cases.118 In 1579, the Oberräte were willing to grant Hiller Geleit to and from the law, thus promising he would walk to and from his trial unshackled, and would have to fear a monetary fine at most. Unfortunately there are no records to describe what happened after this point. We do not know if he came back to stand trial, chose exile, or whether his case concluded with an agreement after all. The response of the Oberräte nevertheless shows a reservation about agreements that was absent from ear114  Ibid., letter of the Oberräte from May 6, 1579: “… ain gůt testimonium seines bisshero gepflegten verhaltens …” 115  Ibid.: “… und hallten aber inn underthenigkeit darfür, das ime vonn und zum rechten glait zugeben …” 116  See, for example, Hans Taub, Beiträge zur Geschichte und Theorie des sicheren Geleits. Ein rechtshistorischer Versuch (Borna and Leipzig, 1906); Riggenbach, “Die Tötung und ihre Folgen”, p. 157 and, B. Koehler, “Geleit,” in Handwörterbuch zur deutschen Rechtsgeschichte, eds. Adalbert Erler und Ekkehart Kaufmann (Berlin, 1971), vol. 1, col. 1485. 117  See the cases of Joerg Freiberger HStA A 209 Bü 1897 (letter of the Oberräte from November 25, 1553) and of Bartlin Geringer HstA A 237a Bü 29, Konzept of the Oberräte from 1562. 118  In Joerg Freiberger’s case, the Oberräte offered him Geleit to and from the law in response to his request, but demanded the high sum of 200 Gulden as security; see HStA A 209 Bü 1897, letter of the Oberräte from November 25, 1553. At the same time, the Oberräte did not seriously pursue a trial and they accepted the agreement that was eventually negotiated; see above, fn 62. The aforementioned Bartlin Geringer’s request for Geleit was denied by the Oberräte, whereas they tolerated his settlement with the victim’s family, see HstA A 237a Bü 29, Konzept from 1562, see also pp. above.

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lier records. In Hiller’s case, they expressed a preference for retribution over restitution, and thus gave lesser priority to the claims of the injured parties. Unlike in earlier cases, the demonstration of ducal power was not suspended between the merciful acceptance of an agreement and the threat of judicial proceedings that might result in corporal punishment. The safe conduct freed Hiller from this latter danger. In this record, therefore, the trial symbolized ducal power, regardless of its outcome. There is no official decree or law explaining a change in attitude; the homicide clause of the Landesordnung which permitted arbitration was reissued throughout the early modern period. It is, however, possible that this dissatisfaction with agreements might have been related to a new development in the judicial handling of manslaughter in Württemberg.119 In the early 1570s, the law professors of the University of Tübingen began to write legal recommendations, or consilia, in homicide cases. This change had to do with the promotion by the Oberräte of the Carolina as a base for decisions in criminal cases.120 In 1551, the duke had instructed the local courts always to consult the Carolina. Judges were not trained in ius commune, however, and the Carolina did not provide exhaustive legal explanations. In response to frequent questions from local judges, the Oberräte consequently instructed the faculty of law in Tübingen to write a criminal code for Württemberg that reconciled the Carolina with local customs. In 1560, Tübingen’s law professors set to work on this task. In the meantime, the Oberräte told local judges to consult with Tübingen in cases of uncertainty, and the first consilia began to appear in criminal cases. Fortynine years later, in 1609, the professors had come up with a draft for a regional criminal code.121 It was nevertheless rejected by the Oberräte, the reason being that a custom of consulting the law professors had established itself in the intervening period which allowed the machinery of justice to work smoothly. In 1621, the Oberräte officially mandated that all criminal cases be submitted to the law faculty. Judges continued to conduct trials and, if need be, issued consilia regarding a defendant’s character, but they never regained their late 119  The development in Württemberg corresponds to observations made by Xavier Rousseaux in his discussion of a chronology of homicide regulation in early modern Europe. He argues that records indicate “a more systematic control of homicide” during the late 16th century and consequently “a boost in the prosecution of homicides” and “an increase in indictments,”; see Rousseaux, “From Case to Crime”, p. 156. 120  The following summary is based on Helga Schnabel-Schüle’s discussion of Württembergian jurisdiction; see Schnabel-Schüle, Überwachen und Strafen, p. 81. 121  See ibid., p. 84 and Geßler, “Der Entwurf einer Criminalordnung für Württemberg von 1609. Ein Beitrag zur Geschichte des deutschen Strafrechts von Professor Dr. Geßler in Tübingen,” Zeitschrift für das deutsche Recht 20 (1861), 223–254.

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medieval judicial independence. In the seventeenth century, suggestions for verdicts regularly came from the law professors in Tübingen. During the period discussed here, namely the late sixteenth century, the custom was still in the process of establishing itself. The first consilium that I have found in a homicide case was written in 1572, although it is important to note that there are gaps in the records. The growing inclusion of law professors strengthened the influence of ius commune over legal practice. Ius commune and arbitration did not necessarily contradict each other, however. Ius commune jurists accepted agreements as a possible means of conflict resolution, and in a recommendation from 1571 the Tübingen jurists argued that an agreement between the parties constituted a point in the slayer’s favour. But although such an agreement constituted a recognized presumption of unintentionality, this presumption only mitigated the slayer’s punishment, rather than rendering a verdict superfluous. Here, the law professors suggested temporary banishment and a monetary fine as punishment for the slayer.122 Customarily, if an agreement had been accepted, a monetary fine could be determined ex officio without a trial and an official verdict. For the law professors, the agreement between the parties was a sideshow to official justice; it counted as circumstantial evidence, but was not a procedure that could conclude the case. In the Carolina, arbitration was not even mentioned as a possible means to resolve a homicide. The wish of the Oberräte to place legal practice more firmly within the context of imperial law and to consult the law professors might naturally have contributed to a growing preference for trial verdicts over agreements, since the professors only became involved if the trial was concluded and a recommendation for a verdict was needed. The dissatisfaction with agreements expressed in Hiller’s case may also be related to the frequent use of the Reutlingen asylum by slayers. The dukes and their councillors increasingly took offense at Reutlingen’s tradition of asylum as they sought to streamline the administration of justice and strengthen their claims of jurisdiction over their territory.123 Reck argues that the possibility of nettling the duchy that surrounded the city was a major incentive for Reutlingen’s city counsellors to cling to the privilege that flooded their town

122  See HstA A 209 Bü 141, consilium from April 28, 1571. 123  See ibid., Rolf Reck, “Das Reutlinger Totschlagsasyl” Reutlinger Geschichtsblätter 8 (1974), p. 80. According to Reck, approximately 60–80 slayers fled to Reutlingen every decade during the sixteenth century, see ibid.

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with slayers.124 During the last decades of the sixteenth century, the ducal administration may no longer have been content to allow slayers to evade ducal justice by fleeing to Reutlingen before returning, only to be permitted to forego justice once again by negotiating an agreement. In two cases from 1585 and 1595, the Oberräte allowed the negotiation of agreements despite the same discomfort expressed in Hiller’s case, but their decisions confirm that the ducal administration had become more intolerant towards attempts to escape from justice. When the absconded slayers Georg Fronmueller and Enders Erhard (the latter having fled to Reutlingen) returned to the duchy after reaching an agreement with the families of their victims, the Oberräte nonetheless fined them for escaping justice.125 Although such an aim may always have been implicit in the imposition of fines, the fact that the Oberräte explicitly mentioned that the fines punished an evasion of justice, rather than the slaying itself, suggests an increased focus on the value of trials as a demonstration of judicial authority. While some homicides were still settled by agreement during the last decades of the sixteenth century, the records of the seventeenth century illustrate that the Oberräte no longer accepted agreements in lieu of a verdict as a matter of course. In order to lure escaped slayers back into the duchy and bring them to trial, the Oberräte offered safe conducts rather than permitting agreements. Injured parties therefore had to adjust their strategies in seeking restitution, which now had to be pursued in addition to, rather than instead of, a trial and a judicial verdict. This meant that the Oberräte no longer considered it one of their primary duties to help injured parties gain restitution. A case from 1611, in which a certain widow sought financial compensation for her husband’s death, illustrates forcefully the new challenges and restrictions faced by the victims’ families. In a letter of supplication to the Oberräte, she complained that the three peasants who had killed him had not contacted her to negotiate a settlement. She asked the duke to order the local Vogt to put pressure on the families of the slayers to settle with her “der billicheyt nach” (“according to custom”), so that she did not have to wait until their return, the timing of

124  Under Duke Ulrich, the conflict over the asylum had even escalated into a war with Reutlingen. Imperial troops sent to help the imperial city against the Württemberg army expelled Ulrich from his territory, ushering in fifteen years of Habsburg lordship over Württemberg. See ibid., p. 84. 125  Georg Fronmueller and Endres Erhard had to pay a fine “propter laesam jurisdictionem”, HStA A 209 Bü 651 (response of the Oberräte, March 29, 1586) and HstA A 209 Bü 652 (response of the Oberräte from November 13, 1590).

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which was “ungewisen” (“uncertain.”)126 Her appeal to custom and tradition fell on deaf ears, however, after the Oberräte compared her supplication closely to the witness testimony. She had represented the homicide as a “murderous” slaying that had occurred “without a cause.”127 The report of the Vogt, however, told another story. A tussle had occurred in Voelkelinshausen between three peasants and a couple of soldiers who had harassed one of the peasants’ wives and stolen a chicken from her. One of the soldiers named Wolf had died in the fight, while the three peasants escaped. There were many witnesses to the fight, all of whom confirmed the slayers’ claim of self-defense. The ducal advisors therefore wrote to the Vogt that the “circumstances of the case differed from the way in which the soldier’s wife and her children’s guardians described them … therefore we cannot give an ex officio order to help her.”128 Even the plea of the Vogt of Groeningen, in whose administrative district the victim had lived, could not move them. The Vogt supported the widow’s supplication because the local Schultheiss, the bailiff, and the village judges had told him of the widow’s extreme poverty and her small children. Without compensation from the slayer, she was unable to support herself and would become a burden on the community.129 As we have seen, the Oberräte often took the financial situation of the injured party into account, but instead of asking local officials to help bring about a settlement, the Oberräte had decided to do nothing. They had previously written a note to the Vogt to state that since the primary investigation proved the homicide to be self-defense, “one should wait to see whether anyone would demand anything from the perpetrators,” i.e. accuse them.130 As in previous cases, the Oberräte did not want to initiate a trial that would end with a certain acquittal, but also had little inclination to champion the widow’s cause. Instead, they argued in response to the widow’s supplication that she was free to initiate a trial against the slayers.131 The Oberräte’s stance also illustrates a changing attitude towards self-defense. According to the Landesordnung, slayers who killed in self-defense were still expected to compensate the injured family. In this case, the Oberräte adopted a 126  HstA A 209 Bü 545, letter from Magdalena Wolff, August, 1611. 127  Ibid.: “gantz unverschuldt…. mörderischer weis endlipt …” 128  Ibid., response of the Oberräte, August 23, 1611: “… die sachen fürgangener endtleibung halben weitt anderst beschaffen sich befunden, als die Soldatin und ihrer künder verordnette pfleger, fürgegeben als weis derselben man ex officio hierunder nicht zu helffen …” 129  See ibid., letter of the Vogt from August 18, 1611. 130  Ibid., response of the Oberräte, June 21, 1611: “… so ist zu erwartten wehr deswegen ahn sie sampttlich ichtwas zuesprechen oder zuefordern …” 131  See ibid., response of the Oberräte, August 23, 1611.

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purely legalistic, ius commune point of view and decided that no official action or intervention would be necessary.132 There are no records indicating how the widow decided. Given her poverty, it seems unlikely that she would have risked initiating a trial at her own cost. Such a scenario thus meant that the three peasants were let off without a fine, trial, or agreement. Legal change did not follow a straightforward path, since legal practice was often shaped by a variety of conflicting interests and parameters of decisionmaking. The aforementioned case of 1611 illustrates this point: despite a growing preference for holding trials, the judgment of self-defense rested solely on the results of the processus informativus rather than on a trial verdict. In this instance the peasants profited from the lingering reluctance of the Oberräte to finance a trial ending in a certain acquittal. Other twists and turns complicated new attitudes towards trials, such as particular political events. During the Thirty Years War, ducal wishes to support soldiers resulted in a number of ex officio pardons for those of them who had committed a homicide.133 The shift away from agreements did not immediately mean that trials took place in every homicide case, even though this was true for the majority of cases during the seventeenth century. At the same time, the development of extrajudicial conflict resolution cannot be exhaustively described by narratives focusing on legal progress and modernization. While agreements could no longer replace a trial, they continued to play a role in the settlement of homicide cases. It is thus more accurate to speak of a shift in emphasis in homicide proceedings throughout during the seventeenth century. While this emphasis came to rest on the judicial solution, arbitration remained an option for private parties in their pursuit of restitution. Although only a few cases allow us to trace the course of private restitution, they nevertheless suggest a pattern. This shows that the two strands of homicide resolution—judicial and extrajudicial—did not fully separate, but could still intersect with each other. Injured parties, however, had to become 132  Such a point of view was, for example, argued by a law professor from Tübingen in a consilium in another case, A 209 Bü 79, consilium from April 28, 1624: “… dz ein todschläger, welcher sich gegen dem entleibten einer notwehr gebrauchen müssen, zu schützung seines leibs und lebens des entleibten wittib, kinder und erben für kosten schäden und dergleichen keinen abtrag zuthuen schuldig …” (“… that a slayer who kills in self-defense does not have to compensate the family of the deceased …”) The lawyer quoted, for example, the Italian ius commune jurist Farinacius to make his point. 133  Examples are HstA A 209 Bü 663, 1620; HstA A 209 Bü 1000, 1622. In such cases, ducal interest in showing mercy could clash with the preference of the Oberräte for trials, as in a case from 1621, HstA A 209 Bü 662. The Oberräte wished the slayer to stand trial, but the duke inisisted on pardoning the soldier.

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more ingenious in devising strategies to obtain restitution, juggling different options that involved civil suits and agreements, either choosing between them or playing one against the other. The final section below analyses litigants’ negotiation of such options and discusses the ways in which extrajudicial restitution could still affect official justice.

Options of Restitution and Retaliation during the Seventeenth Century During the seventeenth century injured parties continued to seek restitution, but utilized the judicial route in addition to arbitration. As both duke and Oberräte increasingly began to insist on more trials, victims’ families could no longer count on the slayer agreeing to negotiate in order to forego a criminal trial. But although that form of leverage had gone, injured families could still sue the slayer in a civil action. A civil trial was risky; in the event of an acquittal the accusers not only went away empty-handed, they also had to pay the trial expenses. But it was only in cases of pure self-defense that the accusers stood no chance of gaining restitution. Those who had committed a form of Excess had to pay. Even if the fine imposed on the slayer was low, he had to pay the trial expenses in addition to the punishment imposed after the criminal trial. The threat of a civil trial could also pave the way towards an agreement, since the slayer might agree to a settlement rather than face the stress of another insecure outcome. Despite the harshness of the Oberräte in the case of the soldier’s widow from 1611, they might still attempt to promote an understanding between the parties. A case from 1624 illustrates possible strategies of all parties under changed conditions. Melchior Krautter had killed Jakob Hueschmann. Although he had fled the duchy, he was granted a trial with Geleit. But double trouble awaited him after his return. He not only had to worry about his criminal trial, but also about Hueschmann’s widow, who immediately initiated a civil suit against him. In contrast to the soldier’s widow in 1611, there is no indication that Hueschmann’s widow tried to negotiate a settlement with Krautter. Instead, she used the threat of a trial to raise the stakes against him. Her lawyer asked initially for the very high sum of 1000 Gulden. Distressed, Krautter wrote a letter of supplication to the duke, expressing his anxiety about the two trials on account of his poverty.134 He asked that she either wait with her civil suit until the criminal trial was finished, or that she participate in the trial as a joint plaintiff alongside 134  HStA a 209 Bü 79, Krautter’s supplication undated: “… mir gantz hochbeschwerlich ich wegen meines geringen vermoegens onertraegenlich tam in criminale quam in civile process schuldig und gebuehrende red und antwort zu geben …” (“… on account of my poverty, it is

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the fiscal accuser. He probably hoped for an acquittal, which might influence the local judges in his favour in a subsequent civil suit, or else deny her claims if she were a joint plaintiff. Krautter’s supplication appealed to the paternal side of ducal government. The Oberräte, perhaps likewise irritated by the high sum that the widow demanded, were inclined to help the slayer and so asked the Vogt whether he could talk the parties into negotiating an agreement alongside the criminal trial. If his efforts were unsuccessful, he should then ask the widow to act as joint plaintiff.135 The interference of the Oberräte brought criminal and civil justice together. At the beginning of the criminal trial, a Vergleichstag, i.e. a “mediation day”, took place in court to see how “the affair could be settled in the most comfortable manner.”136 In his anxiety over what would be most advantageous to his client, Krautter’s advocate had also ordered a consilium from Tübingen in order to advise Krautter how to act. The professor of law who responded wrote that Krautter stood a good chance of an acquittal in both the criminal and the civil suit, partly because the drunk victim had followed and attacked Krautter without a cause. Nevertheless, the professor continued, predicting a specific verdict was risky; it might instead be best to offer the widow a settlement out of court in order to forestall disagreeable surprises.137 He also suggested the amount that Krautter might pay as compensation. The law professor thereupon recommended the following rhetorical strategy: Krautter should explain that his willingness to negotiate “did not constitute an admission of guilt on his part, but was only meant to prevent trouble and that the agreement should not constitute a prejudgment in his criminal trial.”138 He probably wanted to prevent the fiscal accuser from using the agreement as an admission of guilt in the upcoming criminal trial. Unfortunately, we do not know the results of the “mediation day;” neither Krautter’s course of action nor the widow’s decision is recorded in the surviving very aggravating and unbearable that I should be obligated to respond to her [accusation] in both a civil and a criminal trial …”). 135  Apparently this was not uncommon, as the case of Martin Weiss illustrates. The family of his victim acted as joint plaintiffs in the criminal trial, see HstA A 209 Bü 667. They are referred to as “peinliche mitclegern” (“co-accusers in the criminal trial”). See consilium from August 26, 1626. 136  HstA A 209 Bü 79: “… die sachen uf angenehmste weis und wege vornehmen undt anstellen moechten …” 137  See ibid., consilium from April 18, 1624. 138  Ibid.: “… dz ein solches gantz und gar aus keiner schuldigkeit als darum er im wenigsten gestendig sondern einig und allein ad redimendam vexam geschehen und dz ihme solcher verdrag in der peinlichen rechtferttigung ohnpräjudicierlich sein solle …”

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records. Yet even though a civil action had been the widow’s first choice in her search of restitution, her strategy had at least opened a window of opportunity for an agreement. In this case, the initiation of a civil trial prompted the support of the Oberräte for negotiation as a strategy of mercy. Although the Oberräte no longer made injured parties’ causes their first concern, they were not opposed to slayers compensating families of their victims. Depending on the circumstances, the concern of the Oberräte for gute policey and the use of mercy as a governmental strategy could lead them to promote an understanding between the parties. We can only speculate why these concerns were activated in Krautter’s case, although not in the case of the soldier’s widow from 1611. Perhaps the difference lay in the circumstances of the slayings; the soldier had been the primary aggressor, while Krautter had exceeded the requirements of self-defense in response to an aggressive act. It was potentially decisive in these instances that the soldier’s widow had not initiated a civil trial, whereas Hueschmann’s widow had set off a chain of reactions with her threat of a civil suit. The legal road opened up new opportunities for victims’ families who wanted to raise the stakes against slayers. Readers familiar with the spectacular O.J. Simpson case will not be surprised that in the seventeenth century a civil trial did not necessarily have the same outcome as the criminal trial. In a case from 1687, the slayer Paul Biehlmayer pushed a drunken man down the stairs, causing his death.139 The Tübingen law faculty argued that this was a slaying committed in negligence, and imposed the low fine of twenty Gulden. But for Biehlmayer, this was not the end of the affair. Thirsty for money, vengeance, or both, the widow sued him in a private action. The village judges imposed the payment of 150 Gulden on Biehlmayer, plus the trial expenses, including the cost of his adversary’s lawyer. Not a rich man, the distressed Biehlmayer turned to the duke. He did not have enough money, he wrote, to pay the civil and the ducal fine, which had been set at twenty Gulden. But the civil action did not involve the duke, who did not overstep this boundary. He did make the concession, however, of lowering Biehlmayer’s fine from twenty to twelve Gulden.140 Biehlmayer was probably glad of every Gulden he did not have to pay, but saving eight Gulden probably made little difference, considering his much higher civil fine. Even if the Oberräte no longer championed agreements as actively as they had done during the sixteenth century, they continued to count on some attempt by the injured party to gain compensation. For example, in 1619 they 139  See HstA A 209 Bü 107. 140  See ibid., letter of supplication from April 11, 1690 and attached ducal response from June 12, 1690.

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ordered the Vogt to send them the consilium concerning the homicide of Georg Heck. In a side clause, they asked to be told how Heck had settled with the widow. They considered it a matter of course that a settlement would be reached, even without their interference.141 The claims of injured families also appear several times in their seventeenth-century decisions about a slayer’s fate. In 1645, a Württemberg soldier was tried by his regiment for homicide. The Oberräte allowed the captain to initiate the trial, though after learning of the verdict of self-defense, they ordered the captain to put some pressure on the slayer to give a “gebürenden Abtrag” (“an appropriate sum in compensation”) to the widow.142 In 1673, a pregnant widow asked the Oberräte to hold off publication of the criminal verdict until the slayer had negotiated an agreement with her, perhaps because she feared she might receive little support in her quest for compensation in case of an acquittal. In their consilium, the law professors argued that the verdict should be published, although they recommended that the local judge should try to reconcile the parties and in case negotiations failed he should suggest the initiation of a civil trial. They also suggested a low fine for the slayer, whereby he might have sufficient money left to compensate her adequately.143 Oberräte and duke concurred, ordering that her claim should be supported through either an agreement or a civil trial.144 These cases demonstrate that the law professors also considered the relationship between slayers and injured parties in their decisions about a verdict. In 1688, they cited the Saxon lawyer Carpzov when they argued that the injured family’s offer to settle with the slayer was a mitigating circumstance in cases where the death penalty did not apply. Although they used it only to justify the poena extraordinaria, duke and Oberräte reacted to this argument and ordered the Vogt to help the negotiation of an agreement.145 In 1678, the verdict in an accidental slaying ordered the slayer to pay the family of the deceased the— albeit modest—sum of ten Gulden.146 When Joerg Koehler stood trial for the death of Schuelin Knapp in 1650, he had already settled for the high sum of 300 Gulden with the relatives of the deceased. He was also sentenced to pay only thirty Gulden to the duke and additionally spend two weeks in prison to atone 141  See HStA A 309 Bü 101, letter from the Oberräte, April 23, 1619. 142  HstA A 209 Bü 750, ducal order, December 18, 1645. 143  See HstA A 209 Bü 1862, consilium from April 21, 1673. 144  See ibid., the Oberräte’s letter from April 29, 1673 and the ducal response from May 2nd, 1673. 145  See HstA A 209 Bü 1240, consilium, May 29, 1688 and ducal order, June 5, 1688 attached to and in response to a letter from the Oberräte, June 1, 1688. 146  See HstA A 209 Bü 1558, consilium November 8, 1678.

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for a slaying committed in negligence. We can speculate that they probably declined to raise the fine because he had already paid so much money to the Knapp family.147 Interestingly, the case also demonstrates that the Oberräte continued to pay attention to the circumstances of injured parties, made clear from the fact that they ordered the Vogt to proceed quickly with the criminal trial because it “was now only a matter of our [i.e. ducal] interest.”148 The relationship between the slayers and the families of the victims was no longer the major parameter in ducal decision-making processes, as it had been in the mid-sixteenth century. But even though this relationship faded into the background, it was still part of the picture taken into consideration by the Oberräte when they decided on a slayer’s fate. From time to time it could surface when an additional factor was needed to justify a slayer’s escape from the death penalty, or when considerations of gute policey prompted ducal support of the injured party. As in the sixteenth century, the settlement of manslaughter has to be understood as a package consisting both of formal and informal means of conflict resolution. Although the focus of the Oberräte shifted towards judicial solutions, they were aware that for slayers and injured families, trials often constituted only the first step in the resolution of a crime, and that civil trials or agreements were needed to bring at least a semblance of closure. Criminal, civil, and extrajudicial justice all complemented one another in the settlement of homicide. It is unfortunate that the records are so incomplete, and that the cases cited above are the only examples for the seventeenth-century survival of this tradition. A more complete set of records would undoubtedly have further stories to tell. It remains unknown, for example, the extent to which the treatment by the Oberräte of restitution depended on the kind of slaying committed. The cases I have cited thus far all constitute instances of self-defense or else mild examples of Excess. This meant that the formal verdicts did not administer punishments beyond monetary fines. During the seventeenth century, however, as we will discuss in detail in the next chapter, formal punishment of manslaughter grew more severe, ranging from monetary fines to corporal punishments, such as the stocks or flogging. It would be interesting to know how slayers who had already suffered heavily for their deeds fared in extrajudicial negotiations or civil trials, or how important the Oberräte still considered private restitution in such cases. Some records, though seldom, make reference to the place of injured families in homicide proceedings in a manner which indicates that they continued 147  See HstA A 209 Bü 676. 148  Ibid., letter from the Oberräte, December 19, 1649: “… wann es dann anietzo einig umb unser interesse zuthuen …”

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to influence the fate of slayers. A final case study traces the actions of a father who successfully inserted himself and his family’s claims into the interactions between the ducal administration and the slayers of his sons. This homicide case points towards differing parameters of decision-making that could shape legal practice and produce clashes of interest, as well as windows of opportunity for injured parties to influence ducal decisions. As the story progresses, it becomes a narrative of vengeful retaliation rather than of restitution. As we have seen earlier, restitution and retaliation could be closely connected in the sixteenth century; injured parties could agree to settle, yet still prolong the giving of consent in order to keep the slayer exiled a while longer. In the case of Klett, discussed immediately below, retaliation was linked to the legal process. The family of the victim supported the fight of the Oberräte against a ducal pardon, so that their desire for vengeance allied with the preference of the former for a trial. In the end, although a trial did not take place, disagreements between Oberräte and duke allowed the injured party to influence the slayer’s fate, and to worsen it. The fight which led up to the killing took place between several young men in the little village of Schwiebertingen.149 During the altercation Hans Klett suffered a mortal wound. The other disputants hid this deed and left the bleeding victim in a nearby barn to die. By the time the corpse was found days later, the two responsible Schwiebertingers, Philipp Schmautz and Martin Kuen, were long gone.150 They sought refuge in a nearby regiment, a common strategy for slayers during the Thirty Years War, when regimental quarters were scattered throughout Württemberg.151 Hans Klett’s father was not idle, however, and having found the regiments in Maulbronn he denounced his son’s killers to the local Vogt there. The Vogt asked that the slayers be handed over, though having registered with the regiments, they had since come under the direct protection of the regimental captains, who had the right to exercise criminal jurisdiction over their soldiers. As was to be expected, the captains were reluctant to hand over the two Schwiebertingers, but relented in allowing them to be put under military arrest.152 The Oberräte now offered zealous support to the victim’s father, and demanded that the duke put pressure on the captain

149  See HstA A 209 Bü 1000. Others had helped Schmautz and Kuen, but they were the primary suspects. 150  See ibid., letter of the Vogt to the Oberräte from January 16, 1621. 151  See ibid., letter of the Vogt to the Oberräte from May 11 and attached note of the Oberräte from May 12. 152  See ibid.

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to release the prisoners so that they could be incarcerated and examined.153 The duke did not share this zeal, however. In a short, but decisive response, he told the Oberräte that the Schwiebertingers were now under the protection of the regiment, and that the captain could not be ordered to release them.154 In the meantime the two offenders became concerned about their arrest. A military trial loomed over them, and they did not know how and by what parameters they would be tried. They considered the army their refuge, not the beginning of a new career, although it was a good springboard to negotiate favorable conditions for a ducal trial. As a next step, their parents petitioned the Oberräte for a trial on auf freiem Fuß (i.e. Geleit). They stressed their sons’ innocence and the unfairness of their arrest, and claimed that Schmautz and Kuen had only joined the regiment to wait until the real perpetrators were caught.155 For the Oberräte, the trial auf freiem Fuß represented a way to lure the offenders into a ducal court. Luckily, the medical report offered them a loophole and a justification. Although the two men had struck Klett and hid his corpse like murderers, the report indicated that Klett might have died from neglect and from the cold rather than from their blows. The poena ordinaria could not apply in such a case. Freed from the threat of the death penalty, the two offenders could now be tried auf freiem Fuß.156 We may speculate that the Oberräte needed arguments to convince the duke to put pressure on the military captains, since he was apparently reluctant to punish the slayers. But while the Oberräte pondered their decision, ducal power nudged the fates of Schmautz and Kuen in different directions. The duke decided on a one-time amnesty for soldiers awaiting criminal trials, who should be “pardoned pending their future good behavior without injury to justice.”157 Although there is no date attached to his order, there seems to have been some informal communication about Schmautz and Kuen between Oberräte and Vogt concerning a possible trial. A letter of supplication from the victim’s father indicates that the Vogt of Maulbronn was already organizing a trial day. The father wrote that although he had heard that a date for such a day had been set, he had now learned that the two new soldiers would walk to their trial on auf freiem Fuß. Klett’s father expressed anxiety at the prospect that they would thus move 153  Letter of the Oberräte to the Duke, May 14. 154  See ibid., ducal note to the aforementioned letter of the Oberräte. 155  See ibid., letter of Phillip Schmautz and Peter Kohm (in this document, the name “Kuen” is spelled as “Kohm”) from May 1621. 156  Ibid., response of the Oberräte from June 2nd. 157  Ibid., ducal note attached to the aforementioned response: “… uf ir verner wolhaltten und sovil salva justitia sein khann hiermit begnadigt haben.”

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around freely, and would be allowed to walk to their trial unshackled. He feared that “his son’s murderer would walk free before his and his family’s eyes, even though they had been fatally insulted by this murder, which would produce the greatest pain and calamity.”158 He therefore begged the duke at least to ban Schmautz, who in his eyes was the more guilty party, from Schwiebertingen for the duration of the trial, and to punish him if he violated the ban. During the trial, he hoped that the judges would “undoubtedly realize how wretchedly and dishonorably the defendants had murdered and executed my son.”159 For Klett, who probably worried that the slayers might escape justice altogether after registering with the regiment, the criminal trial promised the satisfaction of witnessing the slayer face the threat of ducal retribution. This supplication played into the hands of the Oberräte, who were uneasy with the duke’s pardon. They forwarded the letter and stressed the logic of Klett’s request, even resorting to a rather cheap argument to persuade the duke by reminding him of the supplication made by the slayers’ parents before the ducal amnesty. The parents had asked for a trial auf freiem Fuß for their sons, not “more than that.”160 Thus, the Oberräte almost found themselves reproaching the duke for not reacting favorably to his subjects’ supplication, ignoring the fact that, even if the parents were eager for a trial auf freiem Fuß for their sons, they certainly would not have been averse to a pardon. But the duke remained unmoved both by Klett’s supplication and by the arguments of his Oberräte. His answer was short, though clear: “The pardon pending their good behavior shall be confirmed one more time.”161 As discussed earlier, for the duke to retract a promised pardon might result in damage to his image. In 1560, it had been the Oberräte who reminded the duke of this danger, though in 1621 they were less concerned about this issue. In this case, their growing preference for trials apparently lessened their worry about the possible damage to the ducal image if he retracted his promise of mercy. And indeed, the defeat suffered by the Oberräte was only temporary, as they were later to receive help 158  Ibid., letter of Klett’s father to the Duke from June 1621: “… und das meines sohns mörder unns erst alls under augen umbgehen sollte mir und meinigen die wie vorhin bis in den todt nahendt von solcher mordthat wegen belaidigt worden zu höchstem schmerzen und etwann zue gröstem unhaÿl gereichen möchte …” 159  Ibid.: “… in welchem sich ohnfelbar erfünden würdt wie ellendlich und jämmerlich die verhafften meinen sohn ermordet und hingericht …” 160  Ibid., response of the Oberräte to the aforementioned letter from June 1621: “… ein mehrers nit begehr …” 161  Ibid., ducal note attached to the aforementioned response: “Sie seindt allein uf ir wolhaltten, darbeÿ es nochmahlen sein verbleibens, begnadigt worden.”

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from the victim’s parents, the local officials, and indirectly even from the slayers themselves. In June, Schmautz and Kuen were set free by ducal order. On July 7th, Klett’s father wrote another letter to the duke, in which he expressed his continued horror at the return of the slayers to his village and his shock at the news of a total pardon. Blackening the names of the slayers, he stressed that they killed his son “in a deliberate, murderous way without any mercy; they had killed him wretchedly.”162 For his part, he had done his best to bring them to justice. Having found them, he had then hoped for a trial, because as “his ducal grace should graciously remember, the Vogt was told to set a trial day.”163 Represented as a fact rather than as a rumor, such an order followed by a total pardon naturally turned ducal government into a travesty of justice. Klett stated his inability to believe such a ducal order had been given, arguing with righteous indignation that the slayers “insolently and presumptuously told everyone that they had received a total pardon,” but he did not doubt that the duke would “administer the beloved justice and not remit their trial or pardon them for their deliberate murder and manslaughter.”164 Klett further lamented that the slayers had returned to Schwiebertingen and “committed all kinds of insolence,” which his “grieving wife and children unfortunately had to watch with great sorrow and pained hearts.”165 The slayers had even thrown a party, and no less than “three tables were joined” to create seats for the large company.166 The party had been the occasion for high spirits; the company “caroused the whole night and screamed exultantly out of the open windows.”167 The affair had absorbed the second floor of their house, where “Hans Bruder, who had assisted their 162  Ibid., letter of Klett’s father from July 7: “… vorsätzlicher mörderischer weis ohne ainiche ursach erbärm und jämmerlichen todt geschlagen.” 163  Ibid., “… sich des und darbei gnedig zuerinnern das sie derselben Vogt zeu Maulbronn gnedig bevohlen beede verhaffte peinlich zu beclagen und was erkendt an ihnen exequiren zu laßen.” 164  Ibid., “… frech und vermeßenlich sich verlauten lassen, das e.e.w. sie ahn alle engtgeltnus und caution des proces gnedig befreÿet … wann aber gnediger fuerst und herr wie mir nicht zweifelt die liebe justitiam administrieren und sie des process und solch vorsätzlichen mord und todschlags willen nicht ÿberheben werden …” 165  Ibid., “… und ich und mein betruebt weib und kinders mit schmertzlicher hertzbekkümmernis laider sehen und erfahren müssen, das solche mörrder alles muotwillens sich befleißen …” 166  Ibid., “… mit dreyen zusammen gestoßnen tischen …” 167  Ibid., “… iren gesellschafft nahendt die gantz nacht hindurch praßet, zum fenster ausgejauchzet, geschrÿhen …”

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deed and had even been temporarily arrested, played music for them so that they could dance.”168 Since then, Klett had to “watch Schmautz’s insolence on a daily basis and fear that the evil spirit might incite greater calamities and further manslaughter.”169 He implored the duke fervently to grant him the favor to ban Schmautz from Schwiebertingen until justice was served and to order the Vogt of Maulbronn to start the trial. Klett communicated that he trusted the ducal sense of justice implicitly, and promised to strive throughout his life to be worthy of this favor.170 The Vogt of Groeningen supported Klett’s supplication and stressed the truth of his assertions. He had heard from the bailiff and other Schwiebertingers that the whole Klett family, including the deceased Hans, were of good repute, that they conducted their affairs honorably, and lived in peace with their neighbors. Hans Schmautz, however, displayed “evil insolence and a rebellious and lawless character.”171 The Vogt agreed that continued meetings between him and the Kletts were dangerous, because Schmautz caused the injured family “no little anger” with his mocking exultations.172 Here, the Vogt hinted at the prospect of further danger. If care was not taken to separate Klett and Schmautz, “great calamity and mishap might result.”173 Perhaps Klett was even hinting at a similar—potentially violent—outcome when he mentioned the “calamities” that might ensue if he had to see Schmautz on a daily basis. This warning also implied that the duke would then not only bear responsibility for further bloodshed, but also for the future misconduct of other inhabitants. The Vogt also expressed anxiety lest “other bad young men imitate Schmautz’s evilness” if he was allowed to parade his insolence openly before the village.174 Indeed, the Vogt had complained earlier that there was, in general, a great deal of disobedience in Schwiebertingen, and that people “did not heed his orders or

168  Ibid., “… Hans Bruder welcher solcher Handlung wegen auch in Hafftung gelegen, ihnen zue Tantz aufgespiehlt …” 169  Ibid., “… ich täglich ime Schmautzen vor augen haben solch sein frevel werkhen … erdulden ja der fürsorg sein muos das durch des boesen geistes anraizen noch grose unhaÿl und weiterer todschlag ervolgen möchte …” 170  Ibid. 171  Ibid., addendum of the Vogt to Klett’s letter: “… das er niehmalen sich viehl guttes sondern alles boeses muottwillens uebels und trutzigen straefflichen wesens …” 172  Ibid., “… nicht geringe aergernis …” 173  Ibid., “… größer unhail und schaden …” 174  Ibid., “… und andern bößen buoben zu dergleichen übelthaten hierdurch anlaittung gegeben würdt …”

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those of the bailiff, and this manslaughter was perhaps not the last; he feared the occurrence of even greater calamities.”175 Here, then, was a frustrated Vogt and an equally frustrated bailiff attempting to execute ducal orders in the face of blatant recalcitrance. The recent homicide had thus come as no surprise, and the ducal pardon was probably the last straw that led to them expressing their feelings on the matter. Continued ducal opposition to local wishes would undermine both the village official’s authority and the government’s wish for a well-regulated village life. Veiled in politeness, these supplications nevertheless reproached the duke for encouraging disorder and violence on the communal level. The Oberräte did not hesitate to drive this point home, reminding the duke that he had pardoned the slayers “pending their good behavior.”176 This conventional phrase acquired new weight in the face of the news from Schwiebertingen. The Oberräte echoed the Vogt’s concern. These “mocking exultations” were “not only merely very painful for the father of the deceased, but foreshadowed greater calamities also.”177 In order to prevent further homicides, they suggested that Schmautz and Kuen be banned from Schwiebertingen. Apparently, the duke could not prevail against this concerted opposition, giving in by signing the suggestion of the Oberräte with a short “placet.”178 Even though injured parties no longer influenced the settlement of homicide as a matter of course, Klett’s family had been able to insert themselves into the negotiation between Oberräte and duke. Discord between the two created a moment of indeterminacy concerning the correct path that the legal process was to take. This worked to the family’s advantage, as they were able to achieve vengeance even without obtaining financial compensation or seeing the slayers stand trial. They no longer had to suffer the vision of Schmautz, whose banishment rendered life considerably more difficult. The case illustrates how, in a new setting, a range of possibilities and options were available to injured parties: in their search for retaliation, the Kletts became temporary supporters of the pursuit by the Oberräte of trials in homicide cases. The Kletts were not the only relatives of victims who became actively involved in efforts 175  Ibid., letter of the Vogt to the Oberräte from January 16: “… das man sich wenig des Schultaißen auch meines gebott und verbots achtet, und zu besorgen, das diser todtschlag nicht der erste, sondern noch mehrer unhail ervolgen möchte …” 176  Ibid., response of the Oberräte to Klett’s letter: “… allein uf ihr wohlhaltten …” 177  Ibid., “…. welches leichtfertig leben und hönisches frolocken des entleibten Vatter nit allein sehr schmertzlich sonder vihlmehr zu besorgen das noch größer unhail und weiterer todschlag ervolgen möchten …” 178  Ibid.

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to bring slayers to justice. Because slayers no longer sought out agreements with injured parties as a matter of course, it had become more necessary to track down those who escaped after the deed. In 1652, two members of the victim’s family found a slayer who had committed a homicide 37 years earlier and denounced him to the authorities. After he was arrested, the victim’s family negotiated an agreement and the Oberräte imposed an ex officio fine.179 Injured parties may have been involved in catching escaped slayers more often than is reflected in the records, whose incompleteness unfortunately prevents the discovery of further examples. Surviving records do illustrate that the increase in trials was not simply a top-down process, as injured parties’ strategies of retaliation could include the support and instrumentalization of criminal trials. In a case from 1625, the victim’s relatives even tried to use the slayer’s trial as an avenue for blood vengeance asking that the homicide be punished with the death penalty.180 As these cases illustrate, two aspects characterize the intersection between formal and informal strategies of conflict resolution. On the one hand, injured families’ strategies of vengeance and restitution could support judicial resolutions. A criminal trial might bring the family the satisfaction of witnessing the slayer face the threat of ducal retribution, whereas a civil trial promised financial restitution and, in addition, could be used as a threat to pressure a slayer to settle extrajudicially. On the other hand, the course and outcome of judicial proceedings could also be shaped by the claims and strategies of injured parties and extrajudicial negotiations could influence verdicts, as in one of the aforementioned case from 1673, when the Oberräte agreed on a low fine, including because they wanted to leave the slayer with sufficient funds to compensate the widow of his victim.181 To summarize, this chapter closes with three observations. Firstly, although the evidence of the seventeenth century privileges judicial narratives, these should not lead us to create artificial boundaries between formal and informal means of conflict resolution. Extrajudicial strategies and agreements remained part of the overall settlement of homicide. Secondly, the evolution of judicial procedure occurred in negotiation with goals of gute policey: This meant that 179  See HstA A 209 Bü 677, see letter from the Vogt of Calw, December 4, 1652 and letter of the Oberräte, May 10, 1653. 180  See HstA A 209 Bü 1323, letter of the Oberräte, 1625. The Oberräte wrote that the family did not want to negotiate an agreement and refused to accept compensation (“… und mit keinem gutt noch gellt … sich vergleichen unnd abfertigen lassen wollen …”). There was no chance of the death penalty, however: the slayer Baumann had killed in self-defense. 181  See HstA A 209 Bü 1862, consilium from April 21, 1673.

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consideration of the financial situations of the parties and concepts of social peace led the Oberräte to take private restitution into account during the seventeenth century. Agreements were no longer the most important avenue to achieve such peace, but political pragmatism ensured that informal strategies of conflict resolution did not erode. Thirdly, the judicial prosecution of homicide also occurred in negotiation with the exercise of ducal mercy. Sixteenthcentury cases indicate that agreements were important avenues for the display of ducal mercy: by permitting agreements, the duke showed his benevolent side and received his subjects’ gratitude and their promises of obedience in return. During the seventeenth century, ducal promotion of agreements could still represent an important form of ducal mercy and underscore the clemency of the Landesvater. Nevertheless, such displays of mercy towards injured parties became less predictable than in the sixteenth century. In later homicide cases, it was the slayer who emerged as the more prominent recipient of ducal mercy. The ex officio pardons used in the Klett case and in other cases concerning soldiers provided one such avenue of showing mercy to the slayer. Equally, however, we have seen that dukes could find it difficult to enforce an absolute pardon in the face of opposition from local communities and their own Oberräte. During the seventeenth century, ducal mercy towards a slayer expressed itself more forcefully in verdicts, but also—and here we touch upon the subject of the next chapter—during the trial itself. In the seventeenth century a complicated system emerged which offered different possibilities to slayers standing trial, each of which foreshadowed the verdict and the chance of reintegration into the community. The next chapter analyses how the Oberräte decided between trial options that could both discipline the slayer and constitute merciful treatment. The ducal administration had to negotiate criminal procedure in the context of paternalistic concepts of gute policey in deciding the parameters of a slayer’s trial. For the most part, the sources illustrate the flow of these changes from above to below, but also show how, as slayers and their counsel became more knowledgeable about the law, they found niches and loopholes they could utilize to their advantage and thus contribute to the making of legal practice. Despite lamenting them in their edicts, the Oberräte were often content to oversee such legal loopholes in practice.

CHAPTER 2

Prosecution: Manslaughter and the superfacto Procedure The insistence of the Oberräte that cases be brought to full trials had moved homicides into the orbit of criminal, or peinliche jurisdiction, as it was known throughout the empire. A trial was considered peinlich if the offense could lead to a peinliche (“painful”) punishment, in other words, a corporal punishment that involved the executioner. This contact with the executioner shamed the defendant and his family; peinliche sanctions were therefore dishonorable, while bürgerliche or “civil” punishments, such as a monetary fine, did not carry the same stigma.1 The stakes had thus been raised for slayers, who in the sixteenth century had been able to count on the payment of such a fine and the negotiation of an agreement. Now, they faced a variety of sanctions that law professors and Oberräte used to distinguish between different forms of Excess. According to a treatise written by the Tübingen law professor August Lindenspür in 1630, the punishments for Excess were bürgerlich in Württemberg. He wrote that this offense could be punished with one of the following three sanctions: a temporary ban on carrying weapons and frequenting taverns, a monetary fine, and a period of exile from Württemberg.2 Lindenspür’s assessment of punishments used in cases of Excess was not quite accurate. Excess could also be punished with the peinliche sanction of public whipping, which was referred to either with the German term Stäupung or with the Latin term fustigatio.3 Fustigatio was a deeply feared, dishonorable punishment that could be aggravated by the additional sanction of standing in the stocks for fifteen minutes, wearing the Halseisen, an iron necklace, before the whipping began. In homicide verdicts, fustigatio was also almost always combined with the punishment of relegatio, entailing permanent exile from Württemberg. 1  For a nuanced discussion of peinliche and bürgerliche sanctions, compare Härter, Policey und Strafjustiz, p. 586. 2  Georg Ludwig Lindenspür, Ad ordinationes politicas, incluti Ducatus Würtembergici (Über die Fürstliche Würtembergische Landsordung) (Tübingen, 1630), p. 318: “Et quod limites moderate defensionis excedens, non fustigtione, sed relegatione, confinatione, oder mit verbietung der wehr und offnen zechen zu strafen…. Quodque in excessu, tantum poena pecuniaria, aut exilium quinquennale habeat locum….” 3  See for example, Tü 84/1, fol. 189, 1603 or Tü 84/3, fol. 423, 1614.

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The offender was thus publicly “whipped out” of the duchy, a process which dishonored the individual and their family.4 While we find that the combination of public whipping with the Halseisen or exile was occasionally used to punish grave violations of the right to selfdefense, Lindenspür gauged practices of punishment correctly insofar as bürgerliche sanctions greatly outweighed peinliche ones in cases of Excess. The available bürgerliche sanctions could be tailored to fit the specific circumstances of each case, meaning that punishments could vary with regard to their severity, and could be combined with each other flexibly.5 During the last decades of the sixteenth century and the first half of the seventeenth, temporary bans on frequenting taverns and carrying weapons, as well as temporary bans that forbade the slayer to enter or leave his village or the administrative district in which he lived, were especially common sanctions.6 Bans on weapons and tavern visits were both examples of so-called Ehrenstrafen, or “shaming punishments” common in early modern Germany.7 The shame that might result from such sanctions need not permanently dishonor the offender, however. While permanent exclusion from male sociability 4  For further discussion of dishonorable punishments, see See Satu Lidman, Zum Spektakel und Abscheu: Schand- und Ehrenstrafen als Mittel öffentlicher Disziplinierung in München um 1600 (Frankfurt am Main 2008), pp. 186–214. 5  See Schnabel-Schüle’s discussion of the administration of criminal justice in early modern Württemberg where she demonstrates that sanctions overall were applied in a flexible and individualized manner; Überwachen und Strafen, e.g. p. 155. 6  Bans on carrying weapons or forbidding the frequentation of taverns, had long been in use to sanction violations of the police ordinances, such as excessive drinking or swearing. See Härter, Policey und Strafjustiz, p. 588 for a general discussion of the increasing use of Policeystrafen (“punishments used to sanction violations of police ordinances”) in the realm of criminal jurisdiction. In Württemberg, these bürgerliche sanctions could be flexibly adjusted as far as length, and consequently severity, were concerned. Monetary fines could be high or low, bans could be flexibly combined, and different lengths of time were also possible as far as forced labor was concerned. Jakob Mack, for example, was punished for his homicide with a year long ban on frequenting tavern in 1616 (HstA A 209 Bü 733) but Jerg Beck was prohibited from entering his home village, carry arms or frequent taverns for two years in a verdict from 1616, see HstA A 209 Bü 1458. 7  See Lidman, Zum Spektakel und Abscheu, for a general discussion of shaming punishments. She distinguishes between two types of sanction: whereas she argues that Ehrenstrafen damaged a defendant’s honor permanently, Schandstrafen were only temporarily dishonoring, see ibid., e.g., p. 17 and “Um Schande. Profil eines frühneuzeitlichen Strafensystems,” in Ehre und Recht. Ehrkonzepte, Ehrverletzungen und Ehrverteidigungen vom späten Mittelalter bis zur Moderne, eds. Sylvia Kesper-Biermann, Ulrike Ludwig and Alexandra Ortmann (Magdeburg, 2011), pp. 199–202. For a contrasting view, see Härter, Policey und Strafjustiz, p. 621.

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or from carrying weapons, which were status symbols of Württemberg male householders, seriously threatened reputation, these temporary bans were imposed as disciplinary measures, and ranged in time period from one to four years. According to Ann Tlusty, men could stomach such bans if they were only imposed for a limited time.8 Like those that temporarily restricted a slayer’s movement, it is difficult to gauge how strictly these bans were monitored or enforced. Their social effect depended on the will of neighbors to police the offender. It is certainly possible that, depending on the sum, the theoretically more lenient punishment of a fine might have affected some slayers more seriously than a ban. Even ‘permanent’ exile need not be forever. Schnabel-Schüle has demonstrated in her analysis of the social effects of the punishment of relegatio that offenders were often able to obtain a ducal pardon which enabled them to return to Württemberg after a time.9 When the Oberräte decided on the duration of a ban, set a fine at a particular amount, or combined these sanctions, they were influenced both by the circumstances of the slaying and the social concerns touched on by the concept of gute policey. As argued in the previous chapter, a slayer’s social integration and the financial stability of communal households remained an important goal of governmental practices of punishment throughout the early modern period. Increasingly, the Oberräte took the slayer’s usefulness to his community into account, assessing whether his previous lifestyle suggested the likelihood of future contributions to communal welfare with diligent work.10 Dukes and Oberräte were reluctant to lose a skilled artisan and thus risking damage to trade and the economic balance of a community. Doing so would run counter to gute policey, as an edict from 1627 demonstrates.11 In this edict, duke and Oberräte encouraged judges to abstain from peinliche punishments if a 8  See Ann Tlusty, The Martial Ethic in Early Modern Germany: Civic Duty and the Right of Arms (Basingstoke, 2011), p. 73. 9  See Helga Schnabel-Schüle, “Die Strafe der Landesverweisung in der Frühen Neuzeit,” in Ausweisung und Deportation. Formen der Zwangsmigration in der Geschichte, eds. Andreas Gestrich, Gerhard Hirschfeld and Holger Sonnabend (Stuttgart 1995), pp. 73–82. For further discussion of the use of permanent exile as a punishment in early modern Germany, see Ulrike Ludwig, “Strafverfolgung und Gnadenpraxis in Kursachsen unter dem Eindruck des Dreißigjährigen Krieges,” in Militär und Gesellschaft in der Frühen Neuzeit 10 (2006), p. 205 and the literature cited there. 10  For a discussion of the increasing importance of utilitarian considerations to practices of punishment, see Härter, Policey and Strafjustiz, e.g., pp. 482 and 491. 11   See August Heeger, Die praktische Thätigkeit der Juristenfakultäten des 17. und 18. Jahrhunderts in ihrem Einfluss auf die Entwicklung des deutschen Strafrechts von Carpzov ab (Tübingen, 1899), p. 88.

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defendant was a skilled craftsman or artisan who had been productive and worked hard at his profession. The Oberäte thus sought to safeguard the defendant from the dishonor he might incur from a peinliche punishment which could lead to his exclusion from the artisan guilds. These utilitarian concerns led to the introduction of the punishment of forced labor, referred to as ad opera publica, in a police ordinance from 1620. Forced labor was explicitly introduced as a bürgerliche sanction that punished but also corrected the offender and allowed his reintegration into the community.12 Defendants who were sentenced to forced labor had to assist in the construction of public buildings, predominantly military forts. The duration of public labor commonly varied between three months and two years.13 During the second half of the seventeenth century, forced labor became the most common punishment in cases of Excess, whereas temporary bans were only rarely imposed. Not infrequently, verdicts could also be mitigated after their announcement in response to letters of supplication written by slayers and their friends and supporters.14 These lenient practices of punishment preserved most slayers from a peinliche punishment. Yet, even if a slayer was ultimately punished with a bürgerliche sanction, there remained to consider the threat of dishonor that the potential verdict and the procedure itself could bring him and his family, as the example of Daniel Knaupp illustrates.

12  See Reyscher, Vollständige, historisch und kritisch bearbeitete Sammlung, vol. 5, p. 379. The Edict specifically mentions that forced labor should be used when “there was hope that a sinner might change his ways” (“… alßdann auch eine Hoffnung seyn koennte, es moechte ein solcher Suender sich etwan bessern …”), ibid., p. 380. 13  The severity of the sanction could be increased: in one case, the Oberräte decided that the defendant should be shackled for the first six months of his three-year term of forced labor. The longer a ban or a term of forced labor was imposed, the more it might actually threaten shame to the defendant. For further discussion of the punishment of forced labor, see Härter, Policey and Strafjustiz, p. 658 and by the same author, “Freiheitsentziehende Sanktionen in der Strafjustiz des frühneuzeitlichen Alten Reiches,” Gefängnis und Gesellschaft. Zur (Vor-) Geschichte der strafenden Einsperrung, Comparativ Heft 5/6 (2003/13), 67–99 or ibid., Thomas Krause, “Opera publica”, 117–130. 14  In recent years, Kriminalitätshistoriker have repeatedly argued that sanctions were frequently the result of a negotiaton between state officials and defendants and analyzed the role of supplications in this process; for a discussion, see Ludwig, Das Herz der Justitia, p. 15 and the literature cited there.

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Dishonor and the peinliche Trial

In 1622, the wife of Daniel Knaupp from the Württemberg village of Kirchberg wrote a letter of supplication to the Oberräte after her husband had killed Hans Bartlin during a fight and fled to the asylum in Reutlingen. She begged the Oberräte to waive the peinliche trial in her husband’s case and instead accept the agreement he had negotiated with the victim’s family. Should this request be denied, however, she also proposed a different resolution: would the Oberräte grant Knaupp “safe passage and allow a trial without the criminal bell, since he had served as a judge on the village court”?15 Like many defendants and their relatives, Knaupp and his wife feared the social consequences of the peinliche trial. The impact of the peinliche procedure on defendants was quite different to that which resulted from negotiated settlements of the sixteenth century. Although negotiation proceedings might take time, and exile itself could be uncomfortable and expensive, at least an agreement did not shame the slayer; by contrast, the peinliche trial procedure stained a slayer’s honor regardless of future grace in the form of a mitigated sentence. The mere possibility of a peinliche punishment thus sufficed to shame him and his family.16 When Knaupp’s wife referred to her husband’s work as a village judge, she meant to convey to the Oberräte that her husband had hitherto held an honorable position within his community, one which would surely be threatened by the peinliche procedure. But while most slayers were tried via the peinliche procedure, this fate was not inevitable. Homicide was not always tried in this way, or at least not always completely. This chapter illustrates that the criminalization of homicide through the medium of peinliche procedure during the seventeenth century was only partial. This finding confirms newer research on early modern German criminal procedure, which maintains that the spread of the peinliche trial occurred in an uneven manner.17 As Ulrike Ludwig points out, offenses officially labeled peinlich were often resolved in a bürgerliche manner, following civil procedure, well into the seventeenth century. The Saxon Duke, for example, often abstained from a peinliche prosecution and permitted private parties 15  HstA A 209 Bü 1544, summarized in a letter from the Oberräte from April 13, 1622: “… ihn sicher einkomen und auf freyem Fuß auch weil er Knaupp … ein gerichtsmann gewesen ohne Läutung des Malefitzglöcklins beklagen lassen.” 16  See Ludwig, Das Herz der Justitia, p. 74. 17  See ibid., p. 14 and the literature cited there.

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to initiate bürgerliche trials against criminal offenders as an act of mercy or as a concession to mitigating circumstances.18 Although homicides in Württemberg were mostly prosecuted ex officio rather than by private accusation, there existed gradations of the peinliche procedure and even hybrid forms which could lessen or remove the shame of the trial. These variations depended on the presence or omission of certain aspects of the trial procedure which publicly reminded the community that the defendant might suffer or die at the executioner’s hand.19 The Malefizglocke, or “criminal bell” which Knaupp’s wife had dreaded, was a powerful symbol of the hangman’s shadow that loomed over the trial. It was rung during the procession of the judges and local officials to the city hall and once more shortly before the verdict was pronounced, notifying everyone within earshot that a peinliche trial was taking place.20 Although the trial itself was not public, the bell publicized the defendant’s shame by announcing to the whole community that the fiscal accuser could ask for a peinliche punishment. Another powerful public representation of a peinliche trial was the walk to the city hall ex carcere, that is, from the prison. A trial held ex carcere meant that the slayer was incarcerated for the duration of the trial, often in the Malefizturm, reserved for defendants facing a peinliche trial. This arrest was considered dishonorable and conditions were often harsh.21 On his trial days, the slayer was bound for the walk from his prison to the city hall, an action that brought further shame upon him.22 18  See ibid., p. 70. 19  Contact with the executioner, whose profession was considered shameful, dishonored not only the defendant, but also his family. For further discussion of the dishonor assciated with the office of the executioner in early modern Germany, see Kathy Stuart, Defiled Trades and social outcasts: honor and ritual pollution in early modern Germany (Cambridge, 1999) or Jutta Nowosadtko, Scharfrichter und Abdecker. Der Alltag zweier “unehrlicher Berufe” in der frühen Neuzeit (Paderborn, 1994). 20   See Ulinka Rublack, Magd, Metz oder Mörderin, pp. 66, 118. See also E. Lippert, Glockenläuten als Rechtsbrauch (Freiburg, 1939), p. 33 for a general discussion of the use of the Malefizglocke. 21  See Härter, Policey und Strafjustiz, p. 448, Schnabel-Schüle, Überwachen und Strafen, p. 113, Rublack, Magd, Metz oder Mörderin, p. 113 and Lidman, Zum Spektakel und Abscheu, pp. 142–143. Incarceration in more comfortable and less dishonorable surroundings was often granted as a form of mercy or to defendants of high social status, see Ulrike Ludwig, “Von “beschwerlich gefengnis” und “milder hafft.” Ansichten zur Haft im Inquisitionsprozess von der Mitte des 16. bis zum Anfang des 17. Jahrhunderts,” in Gefängnis und Gesellschaft, Comparativ 5/6 (2003), 101–116. 22   See F. Graner, “Zur Geschichte der Kriminalrechtspflege in Württemberg,” Württembergische Vierteljahreshefte für Landesgeschichte, XXXVII. Jahrgang (1931), 246.

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Slayers thus had reason to fear both the Malefizglocke and the walk ex carcere. Like other offenders who had committed different peinliche deeds, they or their families often petitioned to be spared such public symbols of a peinliche trial. Hans Mötz’ wife wrote such a petition in 1619, “pleading “and “imploring” that her husband might be spared the sounding of the bell.23 The trial auf freiem Fuß (“on free foot”) referred to the custom of Geleit, or salvus conductus, where the defendant was allowed to wait for his trial at home and walk to the city hall unbound.24 In sevententh-century Württemberg, such concessions were frequent tokens of mercy, and made some peinliche trials less dishonorable than others. This was a significant distinction, and before proceedings began slayers and their friends often hoped for a trial that would cause the least damage to their own reputation and to that of their family. A complex system allowed the Oberräte to make pre-trial distinctions among slayings and to exempt some homicide cases from the fully-fledged peinliche procedure. Slayings committed under extenuating circumstances, such as self-defense or accidental killings, were separated from manslaughter cases via the medium of procedure. At the same time, mercy or pragmatism could counteract such differentiation, just as it might do in the matter of punishment. Slayers could exercise some agency in this process through letters and networks of support. Escape represented an additional advantage in the quest for favorable trial conditions. The analysis of how different procedural options in homicide cases were actually used demonstrates that even during the seventeenth century, manslaughter could be resolved in a non-peinliche manner. But whereas the category of slayings that could be settled by agreement had been broad during the sixteenth century, during the seventeenth, the group of slayings that were allowed a non-peinliche procedure was much narrower. While such resolution had been the norm during the sixteenth century, it thereafter became the exception when the choice of procedure came to depend to a greater extent on ius commune distinctions. Analysing these exceptions illustrates the influence of such legal distinctions on homicide trials and, at the same time, the ways in which they could be circumvented.

23  HstA A 209 Bü 580, letter from the Oberräte, June, 1619: “… hochflehentlich…. bitten …” 24  Defendants in early modern Saxony could also petition for Geleit to evade arrest before a trial, see Ludwig, Das Herz der Justitia, p. 100.

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Evading the peinliche Trial: No Chains, No Bell, and superfacto

The relaxation of the peinliche procedure in homicide cases could serve different purposes. One frequently important matter was the problem of escape. According to the law professor Lindenspür, who discussed Württemberg criminal procedure in his treatise from 1630, escaped slayers were often granted Geleit, and thus a trial auf freiem Fuß.25 In chapter 1, we discussed how the Oberräte began to offer Geleit instead of permitting agreements as an incentive for slayers to stand trial. In the case of the aforementioned slayer Daniel Knaupp, the Oberräte explicitly justified such an offer with the argument that if he “remained much longer in the liberty (i.e. in the Reutlingen asylum), justice would not be served.”26 As a further concession, the Oberräte promised Knaupp that the Malefizglocke would not ring at his trial. But favorable trial conditions were not restricted to slayers who had escaped. Slayers arrested after their homicide could also benefit from a trial auf freiem Fuß without the sound of the Malefizglocke if, as Lindenspür described, the pretrial investigation indicated that it was doubtful whether a homicide had been committed with malicious intent.27 This clause recalls the sixteenth-century regulation of agreements in the Landesordnung, which restricted them to unintentional homicides. Unintentionality no longer resulted in agreements, although according to Lindenspür, it might allow a slayer to undergo a trial stripped of the symbols of shame. Both of these practices—enticing slayers to stand trial and the offer of honorable trial conditions to those who killed unintentionally—were probably intertwined from an early point. Geleit represented not only the promise of a less onerous trial, but also of a milder punishment which was reserved for slayers who had killed without a malicious intention. When the Oberräte denied Balthasar Hiller the permission to negotiate an agreement in 1579 and instead 25  Georg Ludwig Lindenspür, Ad ordinationes politicas, p. 313/314. 26  See HstA A 209 Bü 1544, letter of the Oberräte from April 1622: “… weil der Justiz wann er Knaupp schon länger in der Freÿheit gelassen wurde, kein Genügen geschehe …”. Freiheit (“liberty”) was a term frequently used in the sources to refer to the Reutlingen asylum. At the same time, the case illustrates that the transition from agreements to trials was not straightforward: after the arrival of further supplications, the Oberräte eventually recognized the agreement between Knaupp and his victim’s family and abstained from a trial., see ibid. 27  See Lindenspür, p. 313: “At vero si dubium sit, an homicidium sit dolosum, defensio judicialis etiam extra carcerem … non est deneganda…. Und wuerdt auff freyem Fuß beklagt, auch mehrmalen seiner mit Leutung des Malefizglöcklins verschont.”

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offered him Geleit, they explicitly granted him Geleit von und zu den Rechten, effectively ruling out a peinliche punishment.28 In this instance it might have been difficult otherwise to convince a slayer to accept a trial instead of an agreement. Indiscriminate offers of Geleit, however, would have both conflicted with and undermined the judicial processes the Oberräte wished to advance. Although the sources are too scanty to prove this point, it is likely that the Oberräte restricted Geleit at an early stage to slayings that were not especially shameful. Their reasoning in Balthasar Hiller’s case illustrates this point. They justified their offer of Geleit by arguing that the medical inspection had not established with certainty that Hiller had administered a lethal wound; it was thus doubtful whether Hiller had really intended to kill his victim.29 When trials became the norm during the seventeenth century, the Oberräte began to omit the Malefizglocke as a special favor in addition to the promise of Geleit. Over time, offers of procedural relief may have acquired a dynamic of their own which was independent of the practice of enticing slayers to return. In response to requests from arrested slayers, the Oberräte apparently began to use such favors to make pretrial distinctions among slayers in general. It is difficult, however, to draw a complete picture of the use of procedural reliefs in homicide cases during the first decades of the seventeenth century. There are few surviving cases, and the correlation between the circumstances of a slaying and the procedure employed remains somewhat unclear. Between 1600 and 1630, two arrested slayers obtained procedural reliefs. Michael Baumann and Georg Heck were both fortunate to be freed after their arrest and tried auf freiem Fuß. Baumann was also tried without the bell.30 The circumstances of their homicides fit Lindenspür’s prerequisites: both had killed in self-defense. But we can only infer the connection between procedure and the circumstances of the deed, because the reasons which led the Oberräte to grant these favors are not extant. We cannot, for example, rule out the possibility that Heck’s prominent position as mayor of his village also influenced the decision of the Oberräte to try him auf freiem Fuß. There is also not enough detail to reconstruct why another slayer, Hans Seÿler, remained incarcerated after his homicide in 1624 and walked to the peinliche trial ex carcere, even though he, too, had killed in

28  See HstA A 209 B 142, letter of the Oberräte from May 6, 1579, see also Chapter 1, pp. 73–75. 29  See ibid. 30  See HstA A 209 Bü 1323, 1625 /1626 and HstA A 309 B 101, 1619. For this time period, I found a total of 40 cases. In seven of these cases, slayers obtained procedural reliefs after their escape.

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self-defense.31 In this case, the medical inspection even proved that the blow he had dealt his victim had not been lethal.32 During subsequent decades, however, the use of procedural favors by the Oberräte became more firmly linked to an investigation of the slayer’s intent. A special type of procedure called superfacto began to be used in homicide cases. According to Wolfgang Adam Lauterbach, a professor from the University of Tübingen who specifically mentioned superfacto in his 1666 treatise on Württemberg legal practice, the procedure was reserved for slayings committed “without a malicious intent, but rather in self-defense, or through negligence or by accident.”33 During such a trial the Malefizglocke was silent. Although both the arrival at the city hall ex carcere and the Malefizglocke were shameful, there was a qualitative difference between the concession of Geleit and the omission of the bell. The response of the Oberräte to the pleas of the escaped slayer Hans Mötz in 1619, which spared him both the walk ex carcere and the bell, illustrates this distinction. Here, the Oberräte granted Mötz Geleit, but decided “not to accede to the supplicant’s request to waive the Malefizglocke but to let the peinliche trial take its regular course.”34 This decision throws further light on the meaning of the Malefizglocke: while Geleit did not impede the regular course of a peinliche procedure, the omission of the bell apparently did. A peinliche trial without the bell was irregular, and no 31  See HstA HstA A 209 Bü 462, consilium from December 8, 1624. This consilium mentions Seÿler’s incarceration but does not state that the Malefizglocke was omitted. Therefore, we may assume, that he walked to his trial ex carcere accompanied by the chimes of this bell. 32  See ibid. 33  “… non dolo malo, sed ad occisoris defensionem, vel culpa tantum, aut casu commissum esse.” Wolfgang Adam Lauterbach, Differentiae juris communis et Würtembergici in causis criminalibus, in peinlichen Sachen. Quas divina adspirante gratia, praeside Dn. WolfgangAdamo Lauterbach […] proponit Friedrich von Münchingen (Tübingen, 1661), pp. 5, 37. The term culpa was generally used to refer to slayings committed in negligence. See, for example, a case from 1673, where a slayer was tried superfacto. He was originally accused of culpa, i.e. of having killed in negligence (see HstA A 209 Bü 476, consilium from December 8, 1673). However, he was later acquitted because the law professors agreed with the defense that his deed more closely resembled an accidental slaying, a so-called homicidium casuale. 34  HstA A 209 Bü 580, letter from the Oberräte from June, 1619: “… mit underlassung des glöckhlins den Supplicanten nicht zu willfahren, sondern dem malefitzischen Process sein ordentlichen Gang zu lassen sein möchten …” The Oberräte might have decided against the double favor because Mötz had killed his own stepson. Mötz defended himself against the vicious attacks of his drunk victim, but killings among relatives were considered especially heinous.

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longer quite peinlich. This effectively amounts to an appropriate description of the superfacto procedure. The so-called trial superfacto—or when the German translation was used, a trial über das Faktum (“according to the fact”)—was neither peinlich nor bürgerlich, but fell somewhere in between the two. In contrast to a civil or bürgerliche procedure, a trial superfacto was initiated ex officio in the same manner as a peinliche investigation and was conducted in the form of the fiscal accusation procedure. There was a decisive difference associated with a peinliche trial, however. The most telling characteristics of superfacto were the omission of the Malefizglocke and a different formula for the accuser’s plea. The fiscal accuser could not conclude his opening plea with the request that the defendant be sentenced to a punishment affecting Leib und Leben (“life and limb”), i.e. a peinliche punishment. Rather, in a superfacto trial the fiscal accuser asked that the defendant be punished as the facts merited—super factum. The defendant was accordingly referred to as the Beklagter (“accused”), rather than the peinlich Beklagter. At the same time, the boundary between superfacto and peinlich could become blurred. The superfacto procedure could change into a peinliche procedure during the trial if facts and evidence came to light that increased the defendant’s guilt.35 If the trial remained a superfacto trial, however, the defendant could be sure that the law professors would not suggest a peinliche punishment. In a consilium from 1649, the law professors explicitly linked their discussion of the case to the superfacto procedure and explained that the task at hand was not to discuss “whether this was an intentional homicide which merited a corporal peinliche punishment, since this did neither correspond to the accusation (i.e. the fiscal accuser had not requested the death penalty), nor has it been proven.”36 Punishments for offenders tried superfacto were therefore bürgerlich, encompassing fines, temporary banishment, or short periods of public labor.37 According to Schnabel-Schüle, a Württemberg treatise from 1741 stated that the purpose of the superfacto procedure was the imposition of a bürgerliche punishment, whereas the peinliche procedure aimed—logically enough—at a peinliche punishment.38 To some extent, the division between

35  See Schnabel-Schüle, Überwachen und Strafen, p. 118. 36  HstA A 209 Bü 751, consilium from December 20, 1649: “… und das gleich wohl alhie nicht die frag ob ein dolosum voluntarium homicidium morte puniendum vorgeloffen, den dis ist weder geclagt noch mit seinen requisitis erwisen….” 37  See for example HstA A 209 Bü 1228, 1655. 38  See Schnabel-Schüle’s discussion of this treatise, Überwachen und Strafen, pp. 117–119.

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peinlich and superfacto meant that, long before the verdict was found, the case was prejudged. It is difficult to ascertain when superfacto was first used in Württemberg legal practice. The law professor Lindenspür did not explicitly mention the superfacto procedure in his treatise from 1630 when he discussed the use of favorable trial conditions, nor have I found any references to it in other extant sources before this date. In an ordinance from 1644, however, the Oberräte criticized local misuse of superfacto and spelled out the correct wording the fiscal accuser was meant to employ in his request for a punishment.39 This ordinance indicates that superfacto must have been a standard element of legal practice by 1644. But when honorable trial conditions were granted in a couple of cases that survive from between 1630 and 1644, the Oberräte allowed a trial auf freiem Fuß or waived the Malefizglocke, but used the term peinlich in reference to the defendant and the trial itself.40 The German rendering of the term superfacto appears in one of these cases from 1632, when the Oberräte instructed the local Vogt to try Michael Kreb über das Factum.41 However, in a subsequent instruction, the duke ordered a peinliche procedure, but waived the Malefizglocke.42 It is unclear, therefore, whether this record really refers to the superfacto procedure. Yet while the evidence does not allow us to trace its early use, it is likely that superfacto originated sometime after Lindenspür’s treatise from 1630 and before the ordinance of 1644. I have found the next explicit order to try a slayer über das factum and auf freiem Fuß in a record from 1647. The term peinlich was not mentioned in this case.43 Thereafter, superfacto appears on a regular basis in homicide records. The precise origin of the term superfacto and concept is itself also hazy. The superfacto procedure was used to try other offenses besides homicide, making 39  The ordinance criticizes the fact that local officials often failed to observe the proper proceedings in superfacto cases and used the term peinlich in reference to the defendant and his punishment. The ordinance indicates the correct phrase the fiscal accuser had to use in his formal accusation. He should only accuse the defendant on the basis of the “facts” related to the deeds he had committed and ask for a punishment vermög der Rechten (“according to the law”), and omit the term “peinlich.” See Reyscher, Vollständige, historisch und kritisch bearbeitete Sammlung, vol. V, p. 434: “Demnach N.N. das jenige (das factum zuerzehlen) begangen, und wider unsern Befehlchen das wöerttlein peinlich nicht expresse vermeldet wirdt) gäntzlich abstellen, und nicht mehr vorgehen laßen …” 40  See HstA A 309 Bü 113, 1632 and HstA A 209 Bü 1546, 1641. Between 1650 and 1700 I have found a total of 51 superfacto cases out of a total of 140 records during this time period. 41  See HstA A 209 Bü 113, letter from the Oberräte from November 13, 1632. 42  See ibid., ducal order from December 1st, 1632. 43  See HstA A 209, Bü 751, letter from the Oberräte from August 2, 1647.

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it unclear whether it originated independently or in conjunction with the prosecution of homicide. The procedure may have been the attempt of the Oberräte to standardize responses to the frequent requests of defendants to be spared the Malefizglocke. At the same time, superfacto underscored the claim of the Oberräte to definitional authority during the judicial process. In the context of homicide cases, the Oberräte utilised superfacto to divide slayings into peinliche and non-peinliche offenses.44 Lauterbach specified that superfacto trials were reserved for unintentional killings committed in self-defense, negligence, or accident.45 The homicide of Michael Marquard in 1683 was a typical case of negligence that qualified the slayer for a superfacto trial. Marquard had been drinking in a tavern when a drunkard started to disturb him and the other guests. Marquard decided to take the man home, but the man resisted and pushed him down the stairs. Taking fright, Marquard grabbed hold of the man’s jacket and thus accidentally pulled him down the stairs with him. Whereas Marquard survived the fall, the other man was less lucky. Marquard then fled the duchy and was subsequently allowed a superfacto trial auf freiem Fuß.46 In cases where the Vogt’s investigation had clearly established self-defense, superfacto was also easily granted. After being forced to resort to violence against his victim in 1681, Martin Doscher was allowed to return from Reutlingen auf freiem Fuß to a superfacto trial because the Vogt’s reports showed that the imposition of the death penalty was unlikely.47 Lauterbach had not included manslaughter or Excess within the range of unintentional slayings that could be tried superfacto. Most cases of Excess were tried peinlich ex carcere in Württemberg. Yet the Oberräte were occasionally willing to stretch the definition of what constituted a superfacto homicide. Mercy or pragmatism prompted the inclusion of Excess in certain circumstances within the group of slayings tried superfacto. The Oberräte used the superfacto procedure to differentiate among slayings, thus claiming the power of definition over the categorization of homicide. But superfacto was also a pragmatic tool that could be deployed in order to lure escaped slayers back into the duchy. The subsequent sections discuss both of these functions to illustrate that communal and governmental perceptions of superfacto were shaped both by abstract legal definitions and by pragmatic considerations. 44  See also Schnabel-Schüle’s brief discussion of the superfacto procedure in Überwachen und Strafen, pp. 118–119. 45  See Lauterbach, p. 37. 46  See HstA A 209 Bü 484, 1683. 47  See HstA A 209 Bü 1934, 1681.

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Claiming Definitional Authority: Trial Options and Arrested Slayers

The Oberräte used the superfacto procedure to rate slayings on a scale of intent before the trial had begun. Superfacto exempted some slayings from criminal procedure and thus served to underscore the criminalization of others. If slayers were arrested after their homicide, then the Oberräte could make full use of procedural options. While escaped slayers were initially out of reach, and trying them ex carcere was not an immediate option, the Oberräte could choose whether arrested slayers should be tried superfacto auf freiem Fuß or superfacto ex carcere. While cases of Excess were generally tried ex carcere peinlich, in some cases the Oberräte permitted a superfacto trial ex carcere when a case appeared to be situated somewhat in between self-defense and Excess. Ludwig Haubenstock was a slayer who had been arrested after his homicide. The processus informativus indicated that the victim had started the fight and threatened to shoot him with a loaded gun, even though Haubenstock had begged for peace. Therefore, the Oberräte ordered that Haubenstock be tried superfacto. Nonetheless, they also argued that it was unclear whether his defense had been excessive and thus they mandated that the trial should take place ex carcere.48 In other homicide cases that were tried superfacto ex carcere, the justifications of the Oberräte for choosing this option are unfortunately not extant. This leaves us to speculate about possible patterns behind these choices. In the case of the slayer Eberhard Meyer, superfacto was perhaps offered because the witnesses testified unanimously that Meyer had to defend himself against the aggression of his victim, Waltz. However, during the dispute prior to the slaying, Meyer challenged Waltz to a fight in response to his verbal provocations.49 The decision to try Meyer superfacto ex carcere probably took into account both of these circumstances. Superfacto ex carcere might thus have been a useful instrument to isolate slayings that qualified technically as Excess but when measured on a scale of intent were still closer to self-defense than other manslaughter cases. In a case from 1675, a slayer tried superfacto ex carcere had clearly been the aggressor during the dispute with his victim. Yet it was apparently unclear whether the victim had died from the actual wound or from a subsequent lack of proper medical attention. The choice of superfacto ex carcere might have been regarded as a compromise between the slayer’s violent behavior and doubts about 48  See HstA A 209 Bü 1932, 1677, letter of the Oberräte from October 18, 1677. 49  See HstA A 209 Bü 1169, consilium, 1693.

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the lethality of the wound.50 The Oberräte may also have employed the distinction between superfacto auf freiem Fuß and superfacto ex carcere in order to grade slayings committed in negligence. Graver cases of negligence, such as those involving careless handling of firearms with lethal consequences were often tried superfacto ex carcere.51 Other procedural forms could also be employed by the Oberräte to favor or discipline a slayer. In a trial from 1675, four defendants who had been involved in a fight with the victim stood trial. The trial was ordered superfacto auf freiem Fuß, yet two of the defendants—Ulrich Rogg and Caspar Hoff—were referred to as the “peinliche” accused. A peinliche superfacto trial was something of a contradiction, although the use of the term indicated that Rogg and Hoff were more gravely implicated than the other defendants.52 While the superfacto procedure could be modified to express the pretrial judgment of the Oberräte, variants of the peinliche trial procedure also existed. It could, for instance, be mitigated as a gesture of mercy or as a concession to the slayer’s social status, and thus moved somewhat closer to a superfacto trial. A case from 1669/70 is interesting in this respect.53 The slayer was a student at the University of Tübingen, which had its own criminal court. The rectors held a position comparable to that of the Oberräte in arranging the conditions under which a slayer would be tried. The court was not completely independent, however. The rectors reported to the Oberräte, who in conjunction with the duke had the final say. In this case, considerations of the slayer’s noble status led to a modification of the peinliche ex carcere procedure. Hector Wilhelm von Eiseneck had killed the student Friedrich Becker in what appeared to the rectors of the university to be suspiciously like a duel. Duels were strictly forbidden under Württemberg law, and in this instance the

50  See HstA A 209 Bü 786, letters of the Oberräte from September 22, 1675 and November 22, 1675. The slayer became ill during his time in prison. In response to his supplication, duke and Oberräte ordered the local officials to release him so that he could attend the remainder of his trial from home. However, the slayer died before this order could be put into effect. See ibid., ducal order from November 15, 1675 and letter of the local judges from November 22, 1675. 51  Compare, for example, HstA A 209 Bü 1159 or HStA A 209 Bü 1027, 1689. See Ann Tlusty, The Martial Ethic in Early Modern Germany for a succint discussion of the legal provisions concerning the use of firearms, p. 76. 52  See HstA A 209 Bü 926, consilium from November 8, 1675. 53  See HstA A 209 Bü 1927, 1669/70.

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rectors decided against leniency in order to set an example.54 Von Eiseneck was arrested and incarcerated in the university’s detention room, and a peinliche trial was ordered. Although the sounding of the Malefizglocke was not customary at trials held at the university, his father—anxious about his son’s future reputation—wrote several petitions concerning other aspects of the impending peinliche trial.55 He insisted on his family’s nobility and asked that the university conduct the trial with closed doors and revoke his son’s arrest. As he further wrote, the arrest had been bad for his health, since the cell was too dark. The arrest also impugned his honor.56 In response, the rectors of the university argued that in order to take a strong stance against the widespread custom of secret duels it was necessary to hold the trial in public. But they also made a concession to Eiseneck’s noble status by changing the location of his imprisonment from the unversity’s detention cell to a professorial apartment. They also decided to hold the trial early in the day without publicizing the change of time, thereby making it less public. The trial was thus held peinlich and von Eiseneck was still considered a peinlich Beklagter, but these additional external circumstances mitigated the impending shame.57 In 1672, the Oberräte also modified a peinliche trial as a gesture of mercy towards the slayer and his family. In the case of the barber Hans Acker of Beutelsbach, the Oberräte responded to the supplication of his wife.58 Acker had first been insulted and threatened by Hans Rossmann. He had retaliated with a hay fork, but, because it was dark at the time, had accidentally hit and 54  The term duel was used in contemporary records in reference to a fight that was agreed on by both parties and occurred in answer to a challenge, but did not necessarily conform to the elaborate rules that developed during the later period. See Ulrike Ludwig’s nuanced discussion of the broad concept of dueling prevalent in early modern Germany, Das Duell im Alten Reich. Transformationen und Variationen frühneuzeitlicher Ehrkonflikte (Berlin, 2016). For further reading, see Ulrike Ludwig, Barbara Krug-Richter and Gerd Schwerhoff. Das Duell. Ehrenkämpfe vom Mittelalter bis zur Moderne (Konstanz, 2012) or Gerd Schwerhoff, “Das frühneuzeitliche Duell in der öffentlichen Streitkultur. Zum paradoxen Verhältnis von Gewaltpraxen und normativen Diskursen,” in Streitkultur und Öffentlichkeit im konfessionellen Zeitalter, eds. Henning P. Jürgens and Thomas Weller (Göttingen, 2013), pp. 215–226. 55  See HstA A 209 Bü 1927, 1669/70, letter of the deans of the university from August 30, 1669. 56  See ibid. 57  See ibid., letter from the deans of the university from September 27, 1669. In the end, von Eiseneck got off quite mildly. Due to the arrival of many supplications from noble supporters, the original verdict consisting of two years of military service was mitigated. The sentence was reduced one year of service and finally converted to a monetary fine; see a letter from the Oberräte, May 25, 1670. 58  See HstA A 209 Bü 1862, 1672–1673.

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killed the wrong person. After Acker’s arrest, his wife stressed the fact that he had killed the wrong individual and argued that the slaying was therefore a case of accidental homicide. She entreated the Oberräte earnestly to spare her husband the peinliche procedure and the chimes of the Malefizglocke. She worried that her husband would afterwards be considered unfit to work as a barber, even though he had been successful in his profession and employed apprentices. Living with the shame of the bell “would be worse then death, and his poor wife and innocent children would, without doubt, be ruined.”59 She therefore begged that her husband be tried superfacto auf freiem Fuß, or at least be granted a trial without the bell. Her letter suggests that defendants and their families tried to offer their own pre-trial categorisations and even to suggest what kind of a trial a slaying deserved. Although often patchy or cursory, individuals often possessed enough legal knowledge, or were advised by those who did, to utilize at least rudimentary distinctions of slayings in the ius commune. In this instance Acker’s wife tried to present her husband’s homicide as an accident, and thus as unintentional, in order to justify her plea for a mitigation of the peinliche procedure. The Oberräte, however, seem not to have agreed with her interpretation and forged ahead in ordering a peinliche trial. Nevertheless, in response to the letter, they permitted a trial without the bell.60 Since superfacto was characterized by the absence of the bell, a peinliche trial without the bell seems incongruous. But this procedural version combined mercy with discipline. Since the trial was peinlich, the fiscal accuser could ask for a poena ordinaria, but the silence of the bell and the walk to the city hall auf freiem Fuß did not publicize this fact to the community. Although their explanation is not extant, it is likely that considerations of gute policey prompted the Oberräte to spare a potentially useful citizen at least some of the shame of a peinliche trial.61 Dukes and councillors made use of a spectrum of possible trial procedures in order to send messages to the slayer, the community and the law professors about their assessment of the homicide. The differentiations of the Oberräte between slayings created distinctions among homicides that were based both on ius commune notions of intentionality and on concepts of gute policey. The manner in which ius commune categories of slayings translated into the kind 59  Ibid., letter of supplication from January 1673: “… dardurch ihme eine dem todt viel beschwerlichers Leben seines armen Weib und unschuldigen Kindern aber der onfehlbare ruin zu erwarten stünde …” 60  Ibid., see response of the Oberräte, attached to the aforementioned letter. 61  According to witness testimony, Hans Acker had a good reputation and was well respected in his community, see, ibid., consilium from April 21, 1673.

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of procedure a slayer could expect was not always predictable, but depended partly on the social capital of the slayer.62 How far a slaying was “criminalized” through the medium of procedure thus depended both on the social circumstances of the slayer and on the circumstances of the deed. The weighing of such circumstances by the Oberräte could result in a number of procedural options. A superfacto trial auf freiem Fuß brought the homicide closer to a bürgerliche offense; a trial superfacto but ex carcere might bring some stigmatisation, but certainly not as much as a peinliche trial ex carcere. And a peinliche trial without the bell was better than a peinliche trial with the bell, but not quite as honorable as a superfacto trial. A peinliche trial auf freiem Fuß allowed the slayer to walk to the city hall unchained and from his house, as if it was a bürgerliche affair, but the chimes of the bell signaled to the community that the slayer might face a peinliche punishment. Such subtle procedural variations allowed the Oberräte to combine discipline with mercy. It is difficult to gauge how these messages were received by the local population. Did community members always understand the differentiations that the Oberräte made? The records are mostly silent on this point and offer only a few glimpses of possible local interpretations. The letter of Hans Acker’s wife illustrates that she (or whoever might have helped her write the letter) understood enough about the use of procedural reliefs to understand that a trial could be superfacto but also peinlich minus the bell. The first option was clearly the preferred one; her plea to grant “wenigstens” (“at least”) a peinliche trial without the bell implies that the latter was a second best, though still a valuable concession.63 Another case offers a contrasting view. The trial of the slayer Hans Hartmann illustrates that knowledge of the superfacto procedure could be patchy. Before and during this trial, the defendant and the fiscal accuser were confused by the instructions of the Oberräte about procedure. The case indicates that communities and local elites might not always have understood the carrot and stick method characteristic of procedural reliefs as employed by the Oberräte. Hartmann’s trial also implies that the semantics of trial symbols, such as arrest or Malefizglocke, were not unambigous, but subjects of conflicting interpretations. Hans Hartmann was a gunmaker who lived in the small village of Kirchheim unter Teck near Tübingen. Hartmann faced many challenges in his life, chief among them a perpetual lack of money, an abundance of small children, and 62  See Rudolph, Eine gelinde Regierungsart, p. 300, for an analysis of the influence of a slayer’s social capital during a criminal trial. 63  See HstA A 209 Bü 1862, Letter of supplication from January 1673.

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a thirst that was hard to quench. But his life took a decided turn for the worse on December 31 in 1673, when he quarrelled with the soldier Johann Glanz and killed him. Hartmann was arrested, and his trial began on January 19, 1674.64 The homicide had been witnessed and the processus informativus yielded many details of Hartmann’s fight with Glanz. Hartmann and his wife had met Glanz on their way home after a dinner in a tavern. Glanz wanted to know why Hartmann was carrying a gun, and began to insult him. Another soldier who was present succeeded in making peace for the moment. But after Hartmann made a detour to a wood-seller, he encountered the still-irate Glanz once again. This time, Glanz did not stop at insults, but drew his rapier and struck Hartmann on the head. The witnesses all agreed that Glanz would have continued hitting and stabbing Hartmann and that he had been in mortal danger. But Hartmann defended himself before Glanz could strike again—he had a gun, after all. The very object that Glanz had so resented thereby became the cause of his death.65 After his arrest, the Oberräte surveyed the documents sent by the Vogt, which included assessments of Hartmann’s character by members of the local community. Duke and Oberräte eventually ordered a superfacto trial. The circumstances of the homicide pointed outwardly towards self-defense. But the duke did not grant unlimited favors, and denied him the option to be tried auf freiem Fuß. Hartmann remained under arrest, although the specified locale of his arrest mitigated the harshness of this decision. Hartmann was put under house arrest in his own home, rather than in a detention cell.66 The duke and the Oberräte did not explain this decision, though it might be the case that they had struck a compromise between the circumstances of the slaying and the slayer’s troublesome behavior as a citizen. Reports of inappropriate behavior on Hartmann’s part were plentiful. The Vogt wrote that he lived “epicurisch” (“like an “epicurean”), often disobeyed the law and was “hader und zanckhsichtig” (“quarrelsome”).67 On one occasion when a city official had come to his house to collect unpaid debts, he had suffered such threats from Hartmann that he had feared for his life.68 64  See HstA A 309 Bü 10. 65  See ibid., letter of the local Amtmann, January 2, 1674, examination from January 5, 1674 and consilium, January 30, 1674. 66  See ibid., letter of the Oberräte, January 8, 1674 and letter of the Duke, January 13, 1674. 67  Ibid., letter of the Vogt, January 5, 1674. 68  See ibid. The records also contain a report about Hartmann’s reputation. In 1671, the Untervogt of Kirchheim unter Teck had collected evidence in connection with a civil dispute that involved Hartmann, in which he had written that Hartmann was a “zimblicher

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The use of house arrest in conjunction with the superfacto procedure appears benevolent given the general impatience of the Oberräte with uncivic behavior. But these trial distinctions were lost on Hartmann; he apparently associated the house arrest with a peinliche ex carcere trial, and thus immediately with the Malefizglocke. In a state of anxiety he wrote a supplication to the ducal chancery. Although the document is not extant, its content is mentioned in a ducal letter written in response to it. Hartmann had begged to be spared both the arrest and the bell for the sake of his sons.69 As the fiscal accuser’s lawyer later mentioned during the trial, Hartmann had written in this letter that he “would be willing to go through a peinliche trial as long as the bell was not rung for the sake of his sons.”70 Hartmann was apparently ignorant of the fact that the superfacto trial he had been granted would not include the bell. He had evidently failed to understand what superfacto meant, and had misinterpreted the ducal order concerning his arrest by associating it with the Malefizglocke. The terms superfacto (which implied the absence of the bell) or peinlich seem to have been meaningless to him in comparison with the significance he attributed to his arrest. In response to his letter, duke and Oberräte confirmed that the bell would not be rung, but that Hartmann should remain under house arrest.71 We do not know whether anyone explained the term superfacto to Hartmann when he learned of the ducal reaction, though even if he was still worried about the shame associated with the house arrest he was probably relieved to learn that the bell would not be rung. But this was not the end of misunderstandings of the decisions made by the Oberräte about procedure, as it turned out that Hartmann was not the only participant in the trial who did not quite understand what superfacto meant. When the trial started, the opening plea of the fiscal accuser revealed that Dr. Bachmann—the lawyer who acted on the duke’s behalf—was himself somewhat ignorant of the legal distinctions between superfacto and peinlich. Bachmann used the term “der peinliche Beklagte” (“the peinliche accused”) in reference to Hartmann. Hartmann’s counsel protested immediately, posing the question why the word “peinlich” was used, “since the ducal order had explicitly stated that the accused should be tried superfacto … and the term peinlich did faulentzer” (“rather lazy”), often in debt, neglected his family and did not pay his apprentices. See ibid., letter from July 19, 1671. 69  See ibid, ducal letter from January 13, 1674. 70  Ibid., Gerichtsprotokoll from January 19, 1674: “… er wolle den p: [i.e. peinlichen] process gern außstehen wann seiners mitt leutung des Gloeckhlins umb seiner Söhne willen verschont werden kente …” 71  See ibid, ducal letter from January 13, 1674.

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not appear anywhere [in this ducal order].”72 The defense counsel demanded that the accuser “change his plea and no longer use the word peinlich which was against ducal intention and to his and his family’s disadvantage.”73 Bachmann protested against these reproaches. His reply reveals rather shaky legal knowledge. He said that it was unfortunate if the defendant was hurt by the use of the term “peinlich,” but that this could not be helped, since he had committed a homicide—a criminal, not a civil offense. According to him, the ducal order had implied as much. Bachmann argued that “even though the terms criminal and peinlich were not part of the ducal order, it was important to consider that the fact itself was a criminal [offense].”74 For Bachmann, superfacto meant simply that the trial should judge the fact that Hartmann had committed a homicide, and since this fact constituted generally a criminal offense, the trial should of course be peinlich. Bachmann continued that if slayers should be tried just as they wished this would set a dangerous precedent: “Somebody might wantonly commit a homicide without qualms and expect to be tried in front of a civil court and to be treated like a gentleman … If it had been His Grace’s intention to proceed with a civil trial, he would not have ordered the court … to consult with impartial jurists … which [ducal order] always initiated a peinliche trial.”75 Clearly, Bachman distinguished solely between peinlich and bürgerlich, and did not know about the intermediary superfacto procedure. The defense then retorted that it was “painful for the innocently accused that the ducal advocate interpreted the ducal order in such wilful manner, against ducal intention, and thus transgressed against the ducal definition of the trial. Such transgression was especially painful for the accused because a peinliche trial, even if it did not result in a death penalty, was generally considered … shameful. This was often painfully felt by the children [of the

72  Ibid., Gerichtsprotokoll: “… dieweilen aber der fürstl. gnädigste befelch aüstruckhenlich daß beklagter super facto soll beklagt werden … und das wort peinlich nirgendts zue finden.” 73  Ibid.: “… in so weit seine Clag ändern und daß wort peinlich wider höchst gedacht fürstl. durchl. gndster intention ihm seinem weib und kindern zum Nactheil nit mehr gebrauchen …” 74  Ibid.: “… und obschon das wortllin Criminaliter peinlich mitt in dem gnaedigsten befelch nit specifice enthalten, so hat mann doch auf daß factum welches criminale selbsten zuesehen …” 75  Ibid.: “… wuerde gewiß mancher ohne groß bedencken einen todtschlag muthwillig begehen und ihm einbilden, mann wirdt mich einen Herrn tractiren und für ein bürgerl. Gericht hinstellen … wann Ihro durchl. intention gewest were, bürgerlich procediren zuelassen wuerden sie dißem Gericht nicht befohlen haben, daß … beÿ ohnpartheÿischen Rechtsgelehrten consuliren…. welches in allen p. [peinlichen] prozessen der anfang zu sein pflegt.”

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defendant] …”76 The counsel then quoted from Wolfgang Lauterbach’s treatise from 1662 on Württemberg. In this passage, Lauterbach stated that if “the Vögte were ordered to try someone superfacto, they should not initiate a peinliche trial unless the ducal order explicitly contained the term peinlich.”77 However, the ducal advocate did not concede the point and continued to call Hartmann a “peinlich Beklagter.”78 In their consilium, Tübingen’s university professors thus noted that the ducal advocate had accused Hartmann peinlich, “even though the ducal order had only specified superfacto.”79 The law professors did not go against the specification implied by a superfacto trial, and judged the homicide a slaying in self-defense. Hartman was acquitted, but had to pay the trial costs. He could not enjoy the results of his superfacto trial for long, however. Although the trial ended in an acquittal, the verdict 76  Ibid.: “… unschuldig beklagter thuot im Schmerzlich zuo gemüeth ziehen, daß mann auf seiten fürstl. Anwaldschafft dem begangenen gnädigsten befelch aigen beliebiger weiß und wider die Intention hochst besagten durchl. Erweitert, und also auß den fürgeschrieben schrankhen des für schwerbenden processus schreittet, inn sonderbahrer betrachtung daß p. [peinlicher] process, ob sie schon inn ausgang nit allemahl bluot, jedoch gemeiniglich…. ohngleichen infamiae und schmach erregen, welches an öffters nach eines Vatters tod die Kinder, schmertzlich empfinden müeßen …” 77  Ibid., “… den Vögten befohlen wird, jemanden super facto anzuclagen, so sollen doch die Vögte keinen p: [peinlichen] process anstellen, es befinde sich dann in denen fürstl. Befelchen außtruckhlich das wort peinlich …” This is the lawyer’s translation of the Lauterbach passage which he quotes as follows: “… et praefectis Mandatum sit, quod reum super facto accuset (illi tamen criminalem prcessum instituere haud debet, nisi in mandato vox illa criminaliter scripta reperiatur …” The lawyer referred to quaestio 1, no. 7 in Lauterbach’s treatise Differentiae juris communis et Wirtembergici in causis criminalibus, in peinlichen Sachen. Quas divina adspirante gratia, praeside Dn. Wolfgang-Adamo Lauterbach U.J.D & P.P Publica placidaque Collatione examinandas in illustris collegii auditorio, proponit Friedrich von Münchingen (Tübingen 1662). In the edition that I used, the passage has a slightly different wording and contains a mixture of Latin and German; yet the sense remains: “… et praefectis mandatum fuerit: das sie den reum über das factum beklagen und rechtlich begehren sollen, selben vermoeg der Rechten ernstlich und exemplarisch abzustraffen: ipsi tamen processum criminalem, eine peinliche Rechtsfertigung, instituere haut debeant, nisi in mandato Vox illa, peinlich, expresse addita reperiatur.” (PURL: http://resolver. sub.uni.goettingen.de/purl?PPN778490890). 78  See ibid., Gerichtsprotokoll from January 20, 1674. Bachmann insisted again that since the “factum” was “criminale”, the duke had ordered a “peinliche trial albeit without the ringing of the bell” (“ein p: [peinlich] process jedoch ohne Leutung des Glöckhlins”). He demanded also that Lauterbach’s authority be confirmed by a special ducal order. See ibid., Gerichtsprotokoll from January 19, 1674. 79  Ibid., consilium from January 30, 1674: “… ob zwar der fürstl. Befehl nur es superfacto zuo thuon mit sich führet …”

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precipitated his ruin. He was already up to his neck in debt and could not pay the trial costs. When the duke heard of this from his Oberräte, he ordered the local bailiff to arrest Hartmann as a punishment for his “halsstarrigkeit” (“obstinacy”).80 Hartmann was to stay in the tower for a week.81 These creditors were happy about ducal interference. A widow whom Hartmann had not paid in full for the house he and his family lived in, was especially persistent and complained emphatically to the local court.82 The duke, himself now a creditor, took an interest in her case. Although she did not get any money, a ducal order allowed her to hold the house in pledge.83 While local officials contemplated ordering Hartmann to declare himself bankrupt, a ducal order mandated that they try once more to influence Hartmann to mend his ways and to work diligently to pay his debts.84 Duke and Oberräte hoped to avert the complete ruin of Hartmann’s household and business, probably because they wanted to prevent his family from becoming a burden to the community. However, the sources do not tell us whether this strategy was successful or not. The bell had not rung for Hartmann, and both ducal chancery and the law professors had accepted his plea of self-defense. But in his case, the superfacto trial had been a mixed blessing, since it aggravated his financial situation and thus indirectly led to his subsequent arrest in the tower. The numerous complaints about his uncivic behavior suggest that the community might have been quite willing to bring shame upon him in his case. Perhaps Hartmann’s own anxiety about the shame associated with his house arrest was also an anticipation of communal opinion. His unpopularity might also have colored his neighbors’ judgment of his trial. They were, in any case, perhaps more deeply impressed with his house arrest prior and during the trial as well as with his subsequent arrest in the tower than with the fact that he had originally been tried superfacto and without the bell. These thoughts are conjectural, but at the very least the case raises questions about the ways in which local communities understood procedural reliefs. Dukes and Oberräte could play with a spectrum of possible trial procedures in order to send subtle messages about the nature of the deed, and thus negotiate between legalistic considerations and mercy due to reputation, social status, and communal supplications. But the distinctions of the Oberräte 80  Ibid., ducal letter from May 9, 1674. 81  Ibid., ducal letter from May 12, 1674. 82  See ibid., letter of the mayor of Kirchheim under Teck from May 22nd, 1674. 83  See ibid., ducal letter from May 30, 1674. 84  See ibid. and ducal letter from August 5, 1674.

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may not always have been received in this manner. Hartmann’s reaction suggests that modifications or restrictions of a superfacto or a peinliche trial might have confused slayers and locals who were looking for a clear message that suggested to the community without doubt that the trial in question was not shameful. The grey zone, manifested in a trial which did not see the use of the bell but did see a defendant’s arrest, was ambiguous. The skilful use by the Oberräte of procedural reliefs was dependent on communal perception. It was up to neighbors, friends and foes to decide how much a slayer’s reputation was compromised by the use of the bell or by arrest. Such conclusions surely depended heavily on the slayer’s general reputation, where, for instance, Hartmann’s house arrest might have carried more weight than the arrest of a more popular slayer. Although it is possible to speculate that even if a slayer was welcomed back into his community after a peinliche trial, the bell and the arrest might have loomed like shadows over him or her, remembrances that could be invoked if community members ever had cause to search for an insult or for some leverage to use against the former defendant during a dispute.85 Modified trial procedures may have conveyed symbolic ambiguity more often than not, and it was up to the community to solidify this semantic incertitude. Things were further complicated by the fact that the orders of the Oberräte were also frequently misunderstood by the local elite. The lawyer Bachmann’s ignorance of the superfacto procedure is not a singular case. In an edict from 1644, the Oberräte complained that fiscal accusers and judges often used the wrong formulae in their plea. The edict stressed that during a superfacto trial the accused should not be called peinlich.86 There were then other cases in which the fiscal accusers were apparently ignorant of what superfacto entailed and used the term peinlich, as well as asking for the death penalty. Not all defense lawyers were as knowledgeable as Hartmann’s advocate, and I have not found another case in which the counsellor for the defense took issue with such lapses. Procedural reliefs might have been used consciously by the Oberräte to strike a compromise between legalism, mercy and discipline. At the same time, their creative modifications of trial procedure somewhat counteracted the purpose of the superfacto procedure as a precise separator of peinliche and 85   Hartmann’s case contributes to recent discussions within the literature of Kriminalitätsgeschichte of mechanisms of communal control, called “horizontale Disziplinierung” (“horizontal discipline”) by Helga Schnabel-Schüle, see Überwachen und Strafen, p. 167 and the literature cited there. 86  See Reyscher, Vollständige, historisch und kritisch bearbeitete Sammlung, vol. V, p. 434.

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non-peinliche homicides. For the Oberräte this result was probably not a contradiction, since both merciful pragmatism and legalism were valid guiding principles, and the negotiation of these principles shaped the treatment of offenses in general. Such negotiation allowed for differing interpretations of trial and procedure and created spaces for community judgments and categorizations of homicide. Although the Oberräte had extended their judicial disciplinary apparatus, their deployment of tools to stigmatize, label, and criminalize slayers allowed them to keep the resolution of manslaughter cases suspended between a strictly peinliche and a strictly bürgerliche treatment. As the subsequent section shows, this was even more true if the slayer had escaped.

Superfacto, Excess and Escape: Stretching Definitions

As discussed in the previous chapters, flight undoubtedly constituted a hardship for slayers, since exile was disruptive as well as costly. At the same time, escape could also provide slayers with some leverage. Without the offer of favorable trial conditions, slayers had no incentive to return to stand trial. If a slayer had escaped, the Oberräte could not distinguish between superfacto auf freiem Fuß and superfacto ex carcere because it would be difficult to convince slayers to return only to face incarceration. Escape could result in leniency where cases of light Excess were concerned, but also in some graver cases. Depending on the slayer’s stamina and support network, the Oberräte had to stretch their definition of slayings deserving mild trial conditions, making it more extensive. At the same time, they also attempted to reestablish control over these negotiations. Unfortunately, the sources remain patchy and the justifications of the Oberräte for their trial offers are rarely extant. At the very least, however, the surviving records allow for speculation about the background of negotiations leading to trials of escaped slayers. Such an analysis has to consider the advantage held by slayers who escaped in Württemberg compared to those living in other German territories. The asylum of the imperial city of Reutlingen in the heart of the duchy was unique in south-western Germany; none of the neighboring territories offered a similar haven to slayers. Living conditions in Reutlingen might be harsh for those who fled there, since most guilds there barred asylum seekers from finding new jobs and many slayers had to hire themselves out as day laborers.87 But

87  See Reck, “Das Reutlinger Totschlagsasyl,” p. 60 and Richard Martin Allen, Crime and Punishment in Sixteenth-Century Reutlingen (Ann Arbor, 1980), p. 166.

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Reutlingen still facilitated exile by offering months of security that might be necessary to activate support networks and draw up petitions for Geleit. It is, unfortunately, impossible to draw up exact statistics of the demands for and offers of procedural reliefs due principally to the fact that there are gaps in the asylum book in which the city scribe recorded the names of slayers who claimed asylum in the city. The numbers are at least extant for the time period between 1590 and 1603, when 83 slayers arrived from Württemberg, and for the period between 1661 and 1716, when the arrival of 106 individuals is recorded.88 Reck’s research indicates that these numbers are probably not representative of the actual number of slayers applying for a salvus conductus because a large proportion of the offenders escaped to Reutlingen even though the victim was only wounded.89 Once there, they waited until they were secure in the knowledge that he or she would survive, and then left the asylum again without ever applying for a Geleit. Yet we must still assume that the 23 cases which I found in the Württemberg archive of slayers who returned from Reutlingen with a salvus conductus constitute only a fraction of the total number due to the probability of archival losses. It is, indeed, highly likely that slayers regularly applied for Geleit; as Reck shows, few people came to Reutlingen for a permanent stay.90 Reutlingen’s city council commonly expected slayers to apply for Geleit, the most common “modus finiendi asylum,” as the city council detailed in a letter to the Vogt of Stuttgart in 1769.91 In all probability, the existence of the Reutlingen asylum kept escape rates and the demand for Geleit higher then they might have been otherwise. Perhaps Reutlingen’s asylum was one of the reasons why the use of procedural reliefs evolved into such an elaborate system in the prosecution of homicide in Württemberg.92 In the absence of concrete evidence, however, such arguments 88  See ibid., p. 80. 89  See ibid., p. 64. 90  See ibid., p. 65. Nonetheless, there were exceptions to this rule. After his homicide in 1676, the slayer Antoni Klemm fled to Reutlingen where he got married and eventually acquired citizen status; see HstA A 209 Bü 1368, consilium from July 18, 1687. See also Reck, “Das Reutlinger Totschlagsasyl,” pp. 65–66. 91  Quoted by Reck, p. 64. 92  For further discussion of the influence of asylum on the administration of criminal justice in early modern Germany, see Karl Härter, “Asyl für die Rechtsgeschichte,” in Rechtsgeschichte: Zeitschrift des Max-Planck-Instituts für Europäische Rechtsgeschichte Rg 05 (2004), http://dx.doi.org/10.12946/rg05/235-243, p. 243 and the literature cited there and by the same author, “Vom Kirchenasyl zum politischen Asyl: Asylrecht und Asylpolitik im frühneuzeitlichen Alten Reich,” in Das antike Asyl. Kultische Grundlagen,

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necessarily remain conjectural. To be sure, slayers escaped to other places, and some left the duchy altogether. I have found sixteen cases of escaped slayers who had committed an Excess and were granted a superfacto trial, four had fled to places other than Reutlingen. We cannot tell how representative this ratio is, though it does at least underscore the importance of the asylum to the settlement of homicide. As Reck describes it, Reutlingen was a perpetual source of annoyance for Württemberg’s dukes, who saw it as a threat to their jurisdictional authority.93 The Oberräte frequently engaged in a tug of war with the city council of Reutlingen, although only rarely were they successful. As the Reutlingen city archive shows, the ducal chancery sent out a number of letters demanding that the city council hand over a slayer to the authorities in Württemberg, which Reutlingen mainly refused; according to the asylum privilege, a slayer could only be handed over if the concerned plaintiff initiated a suit in front of Reutlingen’s asylum court. The Dukes of Württemberg initiated this costly procedure a few times during the course of the early modern period, but lost the case most times.94 An attractive trial offer was almost the only way to tempt a slayer to leave the security of the asylum, and sometimes this meant that the proposal went against the initial judgment of the Oberräte. The case of Georg Dieterle demonstrates the successful attempt of a slayer to exploit what leverage the security of the asylum might offer. The case also illustrates how the negotiation of favorable trial conditions could become a tugof-war between different officialdoms. In 1652, Dieterle had killed Walburga Foelber, an elderly widow, and had fled to Reutlingen.95 The pair had quarreled while Dieterle repaired the watering system for his meadows, which consisted of a series of criss-crossing channels. Some of these channels ran through a meadow that belonged to Foelber, who accused Dieterle of trespassing when she met him as he was conducting his repairs. In a letter of supplication on behalf of her husband, Dieterle’s wife described the widow’s behavior as aggressive in an attempt to bolster the claim that her husband had killed in self-defense. According to Dieterle’s wife, Foelber had insulted her husband and thrown a hoe at him. Dieterle had then picked up a hoe of his own which rechtliche Ausgestaltung und politische Funktion, ed. Martin Dreher (Cologne, 2003), pp. 301–336. Härter emphasizes that defendants frequently used asylums to negotiate agreements with injured parties. 93  See Reck, “Das Reutlinger Totschlagsasyl,” p. 76. 94  See, for example, StRT, A 1 912, 1555 and Reck, “Das Reutlinger Totschlagsasyl,” pp. 76–86. 95  See HstA A 209 Bü 1335.

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he hurled at the widow. The “misstraich” (“unlucky throw”), as Dieterle’s wife put it, knocked Foelber down and caused her to faint.96 According to Dieterle’s wife, she subsequently died because no one took care of her wounds. The wife described her husband as a man of good reputation, not quarrelsome at all, and a lover of peace who had worked as an honest mason for all his life. Foelber, however, had been notoriously quarrelsome. Dieterle had repeatedly entreated her to make peace with him, but she had refused to listen.97 Since the poena ordinaria could not apply in such a case, his wife argued, she asked for a superfacto trial auf freiem Fuß.98 Dieterle’s wife apparently knew how to represent a slaying that qualified for superfacto. Her narrative portrayed the homicide as an accident, an unintended consequence of his defense. The term “misstraich” that she used in reference to Dieterle’s throw of his hoe was often used in the sources to characterize slayings committed in negligence. In addition, she raised doubts about the lethality of the wound to underscore her claim that her husband had killed without intent. The Oberräte, however, regarded the fight between the middle-aged mason and the old woman in quite different terms and considered the slaying a “vorsetzlicher todschlag” (“intentional homicide”).99 Instead of granting a superfacto trial, they ordered the Vogt to write a letter to the Reutlingen city council that Dieterle’s claim of self-defense could not be upheld in a court, and asked the council to hand him over to Württemberg authorities.100 In their response, Reutlingen’s councillors wrote that the dispute over Dieterle’s right to asylum could only be settled in the asylum court.101 In the following months, Dieterle’s friends were busy on his behalf. A number of letters of supplication, including a letter from the judges of his hometown, arrived at the ducal chancery to plead for Dieterle and to attest to his good reputation.102 Finally, the Oberräte gave in and offered him a superfacto trial auf freiem Fuß.103 In any case, the mason was perhaps still aware that his slaying constituted a grave 96  Ibid., letter of supplication from May, 1652. 97  Ibid.: “… er unser ehemann und vatter…. ein guot prädicat gehabt und nicht zanksüchtig gewesen…. Hingegen die verstorbene … sehr zanksüchtig … gewesen.” 98  Ibid.: “… bitten gantz demuetig und hochfleissig ihne unseren ehemann und Vattern wiederumb uff freyen Fuß zustellen und in der Landen einkhomen auch ohne Leutung dieses Recht ohne Incarceration seiner Person widerfahren … lassen.” 99  Ibid., order of the Oberräte from May 7, 1652, attached and in response to the aforementioned letter of supplication. 100  Ibid. See also the Vogt’s letter to the city council of Reutlingen from May 15, 1652. 101  Ibid., see the letter from the city council of Reutlingen dated May 21, 1652. 102  Ibid., see e.g. the letter from the judges of Ober- und Unterlenningen, March 23, 1653. 103  Ibid., see letter of the Oberräte from March 28, 1653.

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case of Excess, and although the punishment would be bürgerlich, it could still be heavy. Dieterle bet on Reutlingen as his trump card. He wrote a letter to the ducal chancery and countered the offer of a superfacto trial with an offer of his own. Dieterle initially thanked the duke for promising a salvus conductus and a superfacto trial, but then went on to argue that standing trial still seemed an unjust option, since he had been “forced to execute the unfortunate stroke in order to defend himself.”104 Dieterle also explained that he worried about the cost.105 He added that he “would rather die than appear to be bargaining with such a high personage,” even though that was exactly what he was attempting to do.106 He ultimately suggested a deal to the duke: if the duke would agree to forego a trial altogether, Dieterle would accept a reasonable fine or else work as a mason at opera publica.107 Dieterle’s strategy won out, as duke and Oberräte agreed to his proposal and allowed him to work as a mason ad opera publica for three months. Having initially tried to pursue a harsher strategy, they had sought to base their case on the circumstances of the deed, which had gravely implicated Dieterle who had no witnesses to support his allegation of a vicious attack on the part of the old woman. In making an about-turn, the Oberräte latched on to the testimony of the letters of supplication that Dieterle had a “guttes praedicat” (“a good reputation”). Dieterle’s plea to consider his wife and children and his poverty were most likely also factors that allowed them to represent their change of mind as an act of mercy. The fact that Dieterle was an able mason who could do useful service might have also contributed to their decision. When the Oberräte had justified their prior decision to allow a superfacto trial, they had already stressed that Dieterle was known as a “hartschaffender Mann.”108 Having adjusted their attempts to impose strict legal definitions, in the end this adjustment worked to the advantage of both the slayer and the Oberräte. The exercise of mercy underscored ducal authority and validated the concepts .

104  Ibid., see Dieterle’s letter of supplication from May, 1653: “… sondern defensions weis ge­ führten missstraichs …” 105  See ibid. 106  Ibid., “… dieweilen dann ich gleichsamb lieber mein leben, lassen alls mit einer solchen hohen fürstlichen persohn rechten wollt …” 107  Ibid. Dieterle wrote that he hoped the Duke would “spare me such grave and costly legal proceedings and instead mercifully demand from me an appropriate fine or instead allow me to work diligently as a mason in Your Grace’s buildings …” (“… mich aus so beschwehr und kostbarlichen Rechtens, aus gnaden zuentlassen … und darfür eine laidenliche Gelltstraf gnedig abfordern, solche aber mich, uff eine gewiss bestimmende Zeith an Er. Fl. Gn. Gebäuden … als einen maurer, mit getreuer arbeit abverdienen …”). 108  Ibid., letter of the Oberräte from March 28, 1653.

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of gute policey that the Oberräte sought to emulate. They could thus claim both to be preserving Dieterle’s family from financial straits and allowing Dieterle’s continuing labor as a mason to contribute to the public good. The letters of supplication arriving on his behalf assured the Oberräte that this exercise of mercy would not be wasted on an undeserving subject. The Oberräte, however, also took care to present their decision in a manner that also conformed to the legal definitions they meant to impose; they were not content solely to justify their decision as a merciful act. They also wrote in their suggestion to the duke that the widow’s death had resulted from a “misstraich,” (i.e. an “unlucky stroke.”)109 Contrary to their earlier interpretation of the slaying, they now accepted the wife’s representation of Dieterle’s homicide. They validated the widow’s point of view, but also their own choice of mercy by portraying the slaying as a kind of accident. Although they no longer needed to justify the superfacto procedure, this definition of the slaying also legitimated the “deal” without a trial. Reck speculates that some slayers who had fled to Reutlingen were simply pardoned without a trial.110 If this is correct, then Dieterle was not the only offender who was able to turn exile into advantage. Dieterle was also not the only slayer who tried to bargain with the duke. Already in 1622, the family of Daniel Knaupp, who had fled to Reutlingen, asked that he receive either a trial without the bell auf freiem Fuß, or be permitted to negotiate an agreement.111 Such requests were not restricted to slayers who fled to Reutlingen, but could also be attempted by offenders who chose to hide out in different places. In 1647, the bailiff of Beutelsbach tried to convince the duke in a letter that his two sons who had escaped should be spared a trial, since such a procedure would hinder their education and he had already negotiated an agreement with the victim’s widow.112 In this case the strategy was not successful, although the Oberräte granted a superfacto trial.113 A slayer’s successful use of room for maneuver must have depended significantly upon his personal circumstances, upon how sure he could be of influential support, and upon how prepared he was for an extended stay in exile to sit out resistance from the Oberräte to his pleas. Although this was also true for slayers 109  Ibid., letter of the Oberräte to the Duke from May 31, 1653: “… ein misstraich …” They had already called the slaying a misstraich when they had decided to grant Dieterle a superfacto trial, see letter of the Oberräte from March 28, 1653. 110  See Reck, “Das Reutlinger Totschlagsasyl,” p. 64. 111  See HstA A 209 Bü 1544. 112  HstA A 209 Bü 751, letter of the Oberräte from August 2, 1647. 113  See ibid.

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who had escaped to other places, Reutlingen offered more certainty of safety from discovery and arrest, and thus good preconditions for resistance. While Dieterle may not have been the only escaped slayer who managed to negotiate a punishment without a trial, duke and Oberräte showed a different kind of lenience in other cases. In 1684 and 1693, they allowed a superfacto trial auf freiem Fuß despite apparently aggravating circumstances. In both instances the slayers had used lethal weapons. Jakob Böhringer, in the first case, had tried to make peace between two fighters in 1684, and finally used force against one of them, Jakob Pfetzer, in order to help his opponent. Böhringer’s peacemaking attempt turned out to be somewhat excessive, however. First, he had loudly threatened Pfetzer by saying: “wait, you bloodhound! I will mark you with signs visible for everyone,” before hitting him nine times with the pommel of his sabre as a precursor to a final, lethal blow.114 As the law professors argued later, the pommel was a dangerous lethal instrument, meaning that an indirect will to kill the victim could be presumed.115 The circumstances of Hans Bensler’s slaying in 1693 were also incriminating. Bensler had pursued his victim because he suspected him of having stolen a tool. Bensler did not follow the thief directly after the discovery of the theft, however, but first sought out help from a friend. Together they planned the pursuit of the thief, which took place twenty-four hours after the actual theft. Having caught up with the thief, Bensler and his companion shot the unarmed victim as he tried to flee. Bensler then fled to Reutlingen. The attack catapulted the slaying out of the range of the category of self-defense. The slaying was not “minor”, as the law professors described it in their consilium, but “a wanton violent deed.”116 The use of superfacto trials in both of these instances certainly exceeded Lauterbach’s description of cases that could qualify for such a procedure. Unfortunately, neither the justifications of the Oberräte for granting superfacto nor records of the negotiations for trial conditions between slayers and ducal chancery survive. In their consilia, the law professors later suggested that 114  HstA A 209 Bü 1560, consilium from May 26, 1684: “… wart du bluthund, ich will dich zaichnen …” 115  Ibid.: “…. weil er ein gefährliches tödliches instrument … gebraucht…. nichtsdestoweniger animum occidendi per indirectum gehabt….” This is a reference to the doctrine of dolus indirectus developed by the Saxon lawyer Benedict Carpzov. Carpzov assumed that a slayer who used a lethal instrument indirectly accepted the potentially lethal consequence of his stroke, see Schnabel-Schüle, Überwachen und Strafen, p. 69. 116  HstA A 209 Bü 1949, consilium from June 23, 1694: “keine so geringe, sondern eine vorsätzliche muthwillige gewalthtat sei….” Bensler was later sentenced to two months of forced labor. The law professors considered his good reputation and his small children, see ibid.

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Bensler work two months at opera publica; this comparatively light punishment was justified with a faulty medical inspection.117 In Böhringer’s case, the law professors suggested two years of military service, a more serious punishment, if still bürgerlich.118 The consilium circumvented Böhringer’s use of a lethal weapon among other things by pointing out that the peaceful reputation of the slayer rendered plausible his claim that he meant to save, rather than to take a life.119 In this way they had validated the decision of the Oberräte to make use of the superfacto procedure, but the choice of a harsh punishment also took the aggressive manner of the homicide into account. The Oberräte might have reasoned similarly when they granted superfacto auf freiem Fuß to both slayers. But they were also probably lenient with these slayers because there was no other way to ensure that both cases went to trial. Law professors generally accepted the specification that the order of a superfacto trial implied and suggested a bürgerliche punishment. I have found only one case in which the law professors challenged the decision of the Oberräte to make use of the superfacto procedure in their consilium, which will be discussed later in the chapter. Mostly, superfacto functioned as a default setting. A slaying that was tried superfacto and thus was considered an offense that did not merit a peinliche punishment would most likely be interpreted as such. Superfacto was thus an important governmental tool in the treatment of escaped slayers. On the one hand, superfacto could be employed to control slayers’ exploitation of flight and the use of the asylum. The procedure allowed the return of slayers to Württemberg jurisdiction, but it also enabled the Oberräte to sift through their petitions. Superfacto’s restrictions could doom some slayers to permanent exile, thus stymying the agency they had exercised in seeking out the safety of exile. On the other hand, Dieterle’s case illustrates how the control that the Oberräte sought to exercise over the asylum was subject to contest and negotiation. These negotiations could resemble a game of tug-ofwar, where the Oberräte were compelled to act strategically to extract a slayer from the safety of asylum.

117  See ibid. 118  The duke later sentenced Böhringer to one year of forced labor because military service did not seem sufficiently harsh, since “many thousand honorable soldiers did such service” (“viel 1000 ehrlicher soldaten dergleichen dienste würcklich verrichten …”); see HstA A 209 Bü 1560, ducal order from June 16, 1684. The period of forced labor was later shortened in response to letters of supplication on behalf of Böhringer; see ibid., ducal order from November 26, 1684. 119  See HstA A 209 Bü 1560, consilium from May 26, 1684.

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The frequent demands to the Reutlingen city council that they hand over slayers staked a claim for Württemberg jurisdiction, even if these were generally futile. Sometimes the Oberräte tried to catch the slayer through more indirect means. In 1623, Hans Sautter had killed his opponent with an axe, although the victim, while the first to attack, had only wielded a stick. When Sautter fled to Reutlingen, the Oberräte ordered the Untervogt to look out for Sautter, perhaps in the hope of catching him if he secretly tried to leave the asylum.120 This strategy was unsuccessful, however. While the Oberräte were still hoping to catch and arrest Sautter, a number of people wrote supplications on his behalf. Although the letter of the local village officials described Sautter as a lazy householder who wasted his resources, there were a number of favorable letters, including the report of the village pastor. In the end, the Oberräte granted Sautter a safe conduct.121 Sautter, however, only received the salvus conductus. He walked to his trial auf freiem Fuß, but had to listen to the chimes of the bell while he did so. This is an early example of how the Oberräte used partial procedural reliefs in their treatment of escaped slayers. Although the Oberräte did not give a reason for insisting on the bell, despite their offer of a trial auf freiem Fuß, it is likely that they were trying to reestablish some form of control over the process.122 The sources make it difficult to ascertain how frequently the Oberräte may have used procedural modifications in cases of slayers who had escaped their jurisdiction. In 1650, for example, the Oberräte were at first reluctant to grant any favors to the following slayer who had fled to Reutlingen.123 Damenmeyer had killed with a lethal weapon and the strokes had been deadly. He had knifed Hans Jerg Bentzingen after a dispute over gaming debts, and although he defended himself against the attacks of Bentzingen and his friend, there was no conclusive evidence that he had been in mortal danger.124 As they had done in Dieterle’s case, the Oberräte at first demanded that Reutlingen hand over

120  See HstA A 209 Bü 148, letter of the Oberräte from December 19, 1623. According to Reck, this was common practice, see “Das Reutlinger Totschlagsasyl,” p. 84. 121  See ibid. The Oberräte also considered the victim’s family, stating that the criminal trial against Sautter should not prevent them from initiating a civil trial against him. 122  In two other early cases, the Oberräte granted trials auf freiem Fuß without the bell to escaped slayers. These examples suggest that the decision in Sautter’s case was strategic because the tradition of granting both freier Fuß and the omission of the bell had already been established before the use of the superfacto procedure during the second half of the seventeenth century, see HstA A 209 Bü 1323, 1625/26 and HstA A 209 Bü 1273, 1623/25. 123  See HstA A 209 Bü 1910. 124  See ibid., consilium from August 20, 1650.

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Damenmeyer.125 When the mayor and the city council refused, the Oberräte began to negotiate. But here they did not offer superfacto, and instead only allowed the possibility of a trial auf freiem Fuß.126 Damenmeyer accepted the offer, and thus walked to his peinliche trial auf freiem Fuß. In this instance, it is likely that it was the use of the knife—without doubt a lethal weapon—which prompted the Oberräte to restrict their offer. In 1687, Antoni Klemm, who had fled to Reutlingen, accepted a similar deal. He was not offered superfacto, but a peinliche trial auf freiem Fuß without the bell.127 Although detailed, none of these cases unfortunately offer enough information to understand precisely the situation of the individuals involved. Several questions remain open: why were Damenmeyer and Klemm content to accept a trial auf freiem Fuß without the bell, for instance, whereas Dieterle felt sure enough of his position to bargain for more than the superfacto trial offered to him? Perhaps Dieterle had been secure in the knowledge of greater support from friends and family who wrote supplications on his behalf. Another question that is difficult to answer concerns the expectations with regard to punishment associated with a peinliche trial auf freiem Fuß. Although such a trial could result in a peinliche punishment, it is likely that the concession was nevertheless associated with the prospect of a milder sentence, at least in the slayer’s mind. It is otherwise difficult to understand why Damenmeyer left Reutlingen. For Damenmeyer and Klemm, this option was apparently an acceptable compromise. In another case from 1689 the Oberräte qualified their offer of procedural reliefs. In this instance, however, they offered superfacto and restricted their permission of freier Fuß. Wannser’s homicide initially appeared to be a typical case of Excess. After quarreling with his victim he had left the scene of the dispute, though in the meantime the latter had joined a group of troublemakers 125  See StRT A 1 939, 1648. 126  See HstA A 209 Bü 1910, consilium from August 20, 1650. The Oberräte also offered a peinliche trial auf freiem Fuß to Jacob Kürner who had fled to Reutlingen in 1653, see Universitätsarchiv Tübingen 84/10, pp. 123–132. 127  See HstA HstA A 209 Bü 1368, consilium from July 18, 1687. It is unclear what prompted the Oberräte to restrict their offer in this case. Klemm had acted in self-defense, but his response had been exaggerated, as the consilium detailed. He had struck his victim twice in succession. However, the medical inspection had also raised some doubts about the lethality of the blow. In this case, negotiations between the slayer and the ducal government had been lengthy. Klemm had spent several years in Reutlingen after having killed his victim in 1676. As the consilium stated, Klemm had found a wife in Reutlingen, fathered several children and even acquired citizen status. See also Reck, “Das Reutlinger Totschlagsasyl,” p. 66.

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who had dressed themselves up and made loud noises to annoy the neighbors. He walked with them through the dark streets, and after running into Wannser again, attacked him. His weapons were his fists, but Wannser stuck a knife into his victim’s stomach in retaliation, killing him immediately. Wannser fled to Reutlingen, and his mother applied for a salvus conductus.128 The Oberräte deliberated; they concurred that although Wannser had to defend himself, he had also clearly exceeded the requirements of self-defense by using a knife against an unarmed attacker. Yet they decided to grant a superfacto trial and a salvus conductus, even though “a salvus conductus was normally only granted to slayers who had killed in self-defense rather than wantonly.”129 Wannser had not observed the “moderamen ex omni parte,” since he had only been attacked with fists, and had consequently not been in mortal danger. In this case, the Oberräte did not try to reinterpret the case, but represented their decision as a gesture of mercy towards the “humble supplicant.”130 In order to demonstrate that it was a concession rather than a merit, however, the Oberräte modified the salvus conductus. Wannser was allowed to walk auf freiem Fuß to his respective trial days, but the salvus conductus did not apply to the days in between. This restriction implied that Wannser would have to leave the duchy during those days on pain of arrest. In their consilium, the law professors later shared the doubts expressed by the Oberräte. A superfacto trial commonly resulted in a bürgerliche punishment. Wannser was punished with six months of public labor, a greater length of time then I have found in verdicts of other superfacto trials. Out of these six months, Wannser had to wear the Halseisen for three months. This was a shameful punishment, although not strictly peinlich, if the Halseisen was not connected to the stocks and the penalty not administered by the hangman.131 The trial did not change from a superfacto trial to a peinliche trial at any point, but the law professor’s verdict certainly pushed the limits of a bürgerliche 128  See HstA A 209 Bü 68. 129  Ibid.: letter of the Oberräte from December 22, 1698: “… das ob zwar salvi conductus regulariter nur demjenigen welcher necessariam defensionem vor sich haben und keine muthwilligen todschläger sind, gegeben werden …” 130  Ibid., letter of the Oberräte from December 23, 1698: “… der demüthigen Supplicantin …” 131  See Lidman, Zum Spektakel und Abscheu, p. 195 and by the same author, “Um Schande. Profil eines frühneuzeitlichen Strafensystems,” in Ehre und Recht. Ehrkonzepte, Ehrverletzungen und Ehrverteidigungen vom späten Mittelalter bis zur Moderne, eds. Sylvia Kesper-Biermann, Ulrike Ludwig and Alexandra Ortmann (Magdeburg, 2011) or Ludwig von Jagemann and Wilhelm Brauer, Criminallexikon. Nach dem neuesten Stande der Gesetzgebung in Deutschland bearbeitet von Dr. Ludwig von Jagemann und fortgesetzt von Wilhelm Brauer (Erlangen, 1854), p. 411.

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sentence. The overall treatment of Wannser’s homicide ensured that there would be a trial, but also combined mercy with discipline. The paucity of the records makes it difficult to interpret the Oberräte’s use of modified procedural reliefs in cases where the slayers had escaped. It is possible to speculate that the Oberräte could not use such modifications as strategically as they did in cases of arrested slayers. Most escaped slayers would have been wary of leaving their hiding place without an attractive trial offer. But the Oberräte had additional means to control the leverage that escaped slayers held. A few cases survive which show that they were willing to consider a peinliche punishment even though the defendant had been tried superfacto auf freiem Fuß.

Superfacto, Freier Fuß and Strategic Dealings

During the early 1680s, the hamlet of Strohweyler housed only three peasants and their families. In July 1681, however, the consequences of a dispute threatened the very existence of the small community. One evening, the three householders were drinking together in a local tavern. One of them—Ulrich Eggenbrecht—started a dispute about their respective rights and responsibilites pertaining to the work that the villagers shared among themselves. The quarrel was revived on their way home. As Jacob Holzaster and Michael Halder told the bailiff before their eventual flight (which the bailiff—who was Holzaster’s brother—apparently did not hinder), Eggenbrecht had repeatedly insulted them. In response, Holzaster slapped him while Halder hit and kicked him. Eggenbrecht sank to the ground, unable to walk any further. Holzaster and Halder initially helped him up, but eventually left him lying on the ground. Eggenbrecht was later found by other inhabitants of the village and he subsequently died during the night. Halder and Holzaster fled to Reutlingen, but they were apparently less clever than more successful applicants. The story they told cannot have conformed to the requirements, because they were denied access to the asylum.132 Having been forced to hide elsewhere, in the meantime their wives had written successful petitions which resulted in the grant of a superfacto trial auf freiem Fuß.133 The reasons of the Oberräte for granting superfacto are not extant, but it is likely that they took into account that the peasants had not used weapons, as well as the fact that there were doubts whether their hits and kicks had actually caused Eggenbrecht’s death. 132  HstA A 209 Bü 2001, letter of the Vogt to the Oberräte from July 26, 1681. 133  See ibid., the Oberräte’s response to the aforementioned letter.

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The trial was conducted superfacto auf freiem Fuß, and the law professors in Tübingen suggested a bürgerliche punishment: two weeks of imprisonment for Halder, and six months of opera publica for Holzaster. Here, the law professors judged Holzaster more harshly because of the chance that his blows had been responsible for the death.134 When the Oberräte learned of the verdict, however, they considered it too mild; in their eyes, the trial had brought to light aggravating circumstances which should have been considered. Halder had apparently hit and kicked Eggenbrecht after he was already lying defenceless on the ground.135 By this point they seem to have been wondering whether the superfacto trial and the bürgerliche punishment had been the correct choice. As a next step, they now ordered the local Vogt to arrest the two defendants and to send the trial records to the university of Heidelberg for another consilium.136 Having expected a mild sentence, the slayers and their wives now began to panic. After their husbands were arrested, their wives sent a new supplication to the duke. They argued that they had hoped that the promise of superfacto freier Fuß meant that their husbands would remain auf freiem Fuß for the duration of the trial. Now, they had learned “to their great dismay” (“mit bestürzung”) of their husbands’ arrest and worried about a dishonorable corporal punishment which would shame the whole family with the result that they might all be “driven from their honorable households.”137 They begged for a “poenæ extraordinariæ,” since their village would otherwise collapse, should their husbands be sentenced to a shameful “poenae corporis afflictivæ oder infamiæ.”138 The wives stressed their own great affliction and recommended themselves and their small children to ducal mercy.139 Before their letter reached the ducal chancery, however, the Heidelberg consilium had already arrived. The wives did not know that this consilium confirmed their worst fears. The law professors from Heidelberg university suggested public whipping and permanent banishment from the duchy as a sentence.140 Although the Oberräte suggested a compromise between the two 134  See ibid., consilium from December 5, 1681 and the Oberräte’s summary of this consilium in a letter from January 16, 1682. 135  See ibid. 136  See ibid. and a letter from the Vogt from February 28, 1682. 137  Ibid., letter of supplication from March 2, 1682: “… gar von häuslichen ehren getrieben werden dörffen …” 138  Ibid. 139  See ibid. 140  See ibid., consilium from the university of Heidelberg from February 11, 1682.

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verdicts—i.e. a year of public labor—the duke gave his placet to this heavy corporal and peinliche punishment.141 However, with the new supplications in hand duke and Oberräte reconsidered mercy as a strategy, as they so often did. The Oberräte wrote to the duke asking whether he might not consent to a lighter sentence for the sake of the future well-being of the village of Strohweyler.142 The duke, himself now in favor of a stricter punishment, decided on a compromise. Even though the peasants deserved the peinliche punishment—as he stated in his answer to the Oberräte—he was willing to make a concession by which the defendants were to be sentenced to two years of public labor.143 Although this verdict did not involve the executioner and was officially still bürgerlich, it was stricter then most sentences that followed a superfacto procedure and in all likelihood much harsher then the one expected by the defendants and their families. Duke Carl Friedrich also mandated that the shameful sentence suggested by Heidelberg should be officially announced to the defendants, even though it would not be executed.144 This case suggests that for the slayers and their wives, superfacto might have had little meaning beyond the desired freier Fuß or the omission of the bell. These public signs signalled to defendants and community that the trial would end in a bürgerliche punishment. In a previous chapter 1 argued that during the sixteenth century ducal permission to negotiate an agreement symbolized a sort of pact between slayer and the ducal chancery. Such a permission stood for a ducal committment of mercy to the slayer that could be trusted. For seventeenth century slayers, the promise of freier Fuß and the omission of the bell may have held a similar meaning. The willingness of escaped defendants to stand trial was contingent upon their trust that this promise could be relied on. But while superfacto could be interpreted and treated as a pact between duke and defendant, the Oberräte could also choose to revert to the strict legal definition of superfacto. As an abstract legal construct, superfacto did not fully amount to a promise of mercy, since it could change into a peinliche procedure at any point. This possibility gave the Oberräte power over escaped slayers who assumed that the offer of superfacto equated to a merciful response. Certainly, the wives from Strohweyler appealed to this paradigm when they wrote of their expectation that the offer of a superfacto trial auf freiem Fuß would constitute a promise that their husbands would remain free men 141  See letter of the Oberräte from February 18, 1682 and the attached ducal order from February 22, 1682. 142  See ibid., the Oberräte’s note attached to the letter of supplication from March 2, 1682. 143  See ibid., ducal letter to the Oberräte from March 2, 1682. 144  See ibid. Duke Carl Friedrich acted as regent for his nephew between 1677 and 1693.

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throughout the course of the whole trial. Slayers and their families could perhaps exert some pressure on the Oberräte by insisting on this stable meaning of superfacto and its underlying promise of mercy. Perhaps an appeal to this paradigm constituted an option for slayers to reclaim some agency when the Oberräte changed their mind about superfacto. While efforts to turn superfacto into peinlich allowed the Oberräte to display their definitional authority, and confirmed their power over the slayer’s fate, appeals to a paradigm in which these symbols were stable rather than malleable invoked governmental guiding principles based on gute policey. In legal practice, superfacto existed both as a malleable and as a stable semantic system, and both interpretations could influence the outcome of a homicide case. Naturally, slayers suddenly confronted with such a fluid interpretation of the superfacto procedure, as in the Strohweyler case, would insist on the other version. Superfacto was contested terrain in some cases: it could either seal a pact between slayer and ducal chancery, or else illustrate that the Oberräte claimed the judicial authority to categorize a slaying until the last moment of the trial. In another case, the willingness of the Oberräte to consider torture clashed with the assumptions of the defendant and his lawyers about the nature of a superfacto trial. In 1680, Hans Braitlinger from the village of Dachel had killed the teacher Georg Müller. His brother, Georg Braitlinger, and his friend, Jakob Lehrer, were suspected as accomplices. Hans Braitlinger fled the duchy to seek asylum in Reutlingen and was subsequently granted a superfacto trial auf freiem Fuß.145 These concessions extended to Georg Braitlinger and Jacob Lehrer, who were tried with him. After the trial, the law professors were reluctant to suggest a bürgerliche punishment for Hans and his comrades, as was customary in superfacto cases. In a “praeliminar Responsum” (“preliminary response”) to duke and Oberräte, they argued that when Braitlinger had received his salvus conductus, his offense had not been considered peinlich.146 Nonetheless, after reading the trial records, the jurists considered the circumstances aggravating and doubted that a poena extraordinaria would be sufficient. Although they did not explain these circumstances in their preliminary response, they were probably referring to witness testimony demonstrating that Hans Braitlinger had threatened “to throw the teacher in a pile of shit” following a quarrel about Hans’s continued absence from

145  See HstA A 209 Bü 692. A letter from the Oberräte (dated July 23, 1684) indicates that Hans Braitlinger had been in Reutlingen. 146  Ibid., preliminary consilium from January 20, 1684: “… weder in principali noch in puncto tortura ichtwas peinliches widerselbigen würckhlich erkannt …”

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the weekly choir practice.147 Other witnesses testified that Hans had changed clothes with his brother Georg and Lehrer. In a subsequent consilium, the law professors suspected that Hans had tried to camouflage himself. All of this suggested premeditation, and led the law professors to doubt Hans’s statement that he had been attacked on his way home by the teacher and only struck him with a stick in self-defense.148 In their preliminary response, the jurists argued that circumstantial evidence might warrant the use of torture.149 In fact, the professors implied that a second trial should follow, a trial “in puncto tortura.” The purpose of such a trial was to weigh the pros and cons of torturing the defendants in order to investigate whether they had intended to kill the victim. As in a regular criminal trial, the law professors debated the results of the trial in a consilium and either recommended torture or advised against it.150 However, as a first step, in their preliminary response the law professors suggested that the three defendants should be arrested and that their trial should resume superfacto ex carcere to investigate whether an additional trial “in puncto tortura” should be held.151 The Oberräte followed the law professors’ suggestions. After their arrest, the three defendants were further interrogated and their trial resumed ex carcere. After this trial was eventually concluded, the law professors wrote an official consilium, where they now formally recommmended an additional trial to ascertain whether the three defendants should be tortured.152 This trial in puncto tortura was held shortly afterwards. The case demonstrates that the security apparently expressed by a trial superfacto auf freiem Fuß could be illusionary. At first, Hans Braitlinger—just like his brother and Jakob Lehrer—had been allowed to live at home and walk to their trial unshackled, expecting a bürgerliche punishment, since the bell had been silent. Subsequently, while they waited for their sentence, they were arrested and their trial resumed ex carcere. In addition they now had to fear and eventually go through a shameful trial “in puncto tortura.” The arrest must have come as a great surprise because the law professors had suggested that the 147  Ibid., see for example, the summary of events in a letter from the Oberräte, September 23, 1684: “er wolle den Schulmeister in koht werffen …” These circumstances are discussed in detail in the law professors’ official consilium from May 30, 1684. 148  Witnesses had not only talked about the exchange of clothes between Hans and Georg but had also implicated their friend Jacob Lehrer, who had been seen armed with a stick and deep in discussion with Hans and Georg before the killing, see ibid. 149  See preliminary consilium from January 20, 1684. 150  See also Schnabel-Schüle, Überwachen und Strafen, p. 123. 151  See ibid. 152  Ibid., consilium from May 30, 1684.

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Vogt proceed quickly and without warning in order to forestall escape.153 They also suggested that the Vogt should take care that their preliminary response, which initiated this chain of events, should not be copied or seen by anyone.154 During the course of the trials, the two concepts of salvus conductus and superfacto clashed. The defense lawyers of Hans Braitlinger protested against the procedural changes and argued that his incarceration contradicted the salvus conductus Braitlinger had received. They also claimed that this salvus conductus excluded a poena ordinaria and thus the use of torture.155 The law professors rejected these arguments as “schwach” (“weak”) by insisting that there was sufficient circumstantial evidence to justify torture—and thus the ex carcere trial in puncto tortura.156 The lawyers of Georg Braitlinger and Jakob Lehrer, were indignant that torture should be debated in a superfacto trial. They used an interpretation of superfacto that equated the procedure with a civil procedure and expressed their astonishment that torture should be considered since “this was a civil, not a criminal trial.”157 The fiscal accuser denied this objection on the grounds that “this was not a civil trial, even though it was held superfacto, since its aim was to avenge public and physical affliction.”158 Matters eventually took a turn towards mercy. Despite their initial suspicions, the law professors eventually concluded that the grounds for torturing the defendants were insufficient after all. They suggested acquitting Jacob Lehrer and Georg Braitlinger and sentencing Hans to a year of military service.159 The Oberräte agreed to the acquittal of the first two defendants, but were reluctant to consider military service, since “nowadays this was no longer considered much of a punishment” and suggested six months of public labor instead.160 When Hans Braitlinger’s father later petitioned that his son was too sick to perform such labor after his half a year of imprisonment, and included the testimonial of the village judges that confirmed this estimation, the Oberräte

153  See ibid., preliminary consilium from January 20, 1684. 154  See ibid. 155  Ibid., consilium from september 16, 1684. 156  See ibid. 157  Ibid., consilium May, 30, 1684: “… ein processus civilis, kein criminalis wär, warum die Tortura … nicht statt hätte …” 158  Ibid.: “… gegenwärtiger process pro civili nicht aigentlich zue halten, ob er schon nur superfacto angestellet, dann er ad vindictam publicam et corporis afflictionem angesehen.” 159  Ibid., consilium from september 16, 1684. 160  Ibid., letter of the Oberräte from September 22, 1684. See Härter, Policey and Strafjustiz, p. 654, for a discussion of the consequences of the punishment of military service for a defendant.

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mitigated the punishment and imposed a monetary fine of 50 gulden.161 Hans Braitlinger had been through a veritable procedural rollercoaster. After an honorable superfacto trial, he was threatened with dishonor through arrest and the trial in puncto tortura, only to end up with a bürgerliche punishment just as one would expect in a regular superfacto trial. Despite the stains on their honor, Braitlinger and the peasants from Strohweyler still had a chance of reintegration into their community. This was different in the case of Michael Kumel from the year 1681, the only case I have found in which superfacto was used to deceive the slayer in order to ensure his return. In this case, the Oberräte did not even bother to veil the fact that they intended to use superfacto in a purely strategic manner.162 Michael Kumel, the bailiff of Degenfeld, had killed the teacher Johann Frifel and fled the duchy. The Vogt’s report contained the details: Kumel and Frifel had quarreled with one another while drinking in a tavern, when a verbal dispute had turned into a fistfight.163 Kumel left the tavern and went home to lie down, but rose a couple of hours later to wait for the teacher to leave the tavern. Kumel had picked up a bludgeon and run in front of his house, where he hit the teacher, who fell to the ground and died the next day without saying another word. After Kumel fled, his wife petitioned the duke for a salvus conductus for her husband and a superfacto trial without the bell.164 As an excuse for her husband’s homicide, explaining that the teacher had started the fight and that her husband had been quite drunk, and “had not intended that the matter would end as badly, since he had indicated as much to his victim and also helped him up after the fateful stroke.”165 But the Oberräte considered the case grave, and did not see “how the slayer could possibly exculpate himself.”166 The Oberräte decided nevertheless to grant a salvus conductus and a superfacto trial in order that “he would return and justice would be served,” which

161  See ibid., letter of the Oberräte from March 18, 1685. 162  See HstA A 209 Bü 1157. 163  Ibid., summary of the Vogt’s report in a letter of the Oberräte to the Duke from August 23, 1681: “… alda beÿm trunckh entzweÿet darüber sie miteinander von worttem zu straichen gekommen, da dann dieser des jenen Meister worden, und ihme dicht abgeschlagen hatt …” 164  Ibid. 165  Ibid.: “… und nicht gemeint das es so übel abgehen möchte, allermassen er solches dem entleibten, als er nach dem straich gesunckhen und ihne nach helffen auffheben, zu verstehen gegeben habe …” 166  Ibid.: “… ein schlimmes faktum … da sich der thäter schwerlich seiner meinung nach werde exculpieren können.”

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would be difficult to achieve “if he remained a fugitive.”167 But the superfacto trial might be a preliminary measure, because once aggravating circumstances would come to light during the trial, “it would be self-evident, what should be done with him.”168 The Oberräte thus implied that they would offer superfacto to ensure a trial, but that they counted on the procedure turning into a peinliche trial once the aggravating circumstances of the case became known. Superfacto functioned in this case as a tactical move rather then a pre-trial categorisation of the slaying. Duke Carl Friedrich, however, at first suggested another strategy; he wanted to wait before answering the wife’s petition and ordered the local Vogt to make discreet inquiries from the wife to find out her husband’s residence without her noticing, all so that Kumel could be apprehended.169 The duke was perhaps uncomfortable with using superfacto in such a tactical way. But his attempt must not have been successful, because Kumel was tried superfacto auf freiem Fuß. Although Kumel’s lawyer tried to do what he could for his client, not even an inadequate medical inquest could persuade the law professors to treat the homicide as a superfacto case. The law professors admitted that there were problems, with the inquest having been incorrect, but argued that there was still no doubt that the accused should be executed.170 A medical report had already confirmed without doubt that the wound had been lethal. This is the only case I have in which superfacto actually turned into a peinliche punishment. Kumel was sentenced so harshly because his homicide had obviously been premeditated. His sentence was eventually carried out, even though the defendant’s wife asked for mercy.171 Interestingly, duke and Oberräte used religious language to justify the sentence, arguing that Kumel’s homicide had to be punished so harshly in order to avoid God’s vengeance of “blood-guilt that lay on the land.”172 According to Schnabel-Schüle, the invocation of a vengeful 167  Ibid.: “… damit er aber desto eher zur hand gebracht und der Justiz dannoch eher ein genügen geschehen möge, als wann er seine fugam noch ferner continuiren würde …” 168  Ibid.: “… da sich dann ein als andern weg, wann er mehrers gravirt werden sollte was mit ihme ferners anzufangen von selbstern ergeben würd …” 169  Ibid., ducal response to the Oberräte’s letter from August 23, 1681: “… dem Vogten zu Heÿdenheim aber befelch zu ertheilen, dz er in der Stille nachfanden und von ermelter Supplicantin ohnvermerkt erforschen solle, wo sich ihre mann dieser zeit aufhalten möge, als dann wz er in Erfahrung bringen wird unverzöglich berichten umb fernder gebuehr haben zu verfügen …” 170  Ibid., consilium, August 26, 1682. 171  Ibid., report of the Oberräte to the Duke from September 12, 1682: “…. mit gethanen zerschidenen fusfällen unterthänigst angeflehet …” 172  ibid.: “… einer schweren Blutschuld auf das ganze Land….”

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God was frequent in Württemberg justice.173 The analysis and justifications of verdicts handed down by the Oberräte in cases of Excess were, however, generally pragmatic and sober. The invocation of this more dramatic image might reflect a conviction that the unusual switch of the superfacto procedure to a peinliche trial required a stronger justification. Kumel’s case is unique among the extant homicide cases. The evidence suggests that the Oberräte used superfacto as a means to entice slayers to stand trial. Slayers agreed to return to the duchy because they interpreted the superfacto procedure as a promise that they would be safe from a peinliche procedure and punishment; superfacto, otherwise, would constitute insufficient bait to lure escaped slayers back into the duchy. Like the permission of an agreement during the sixteenth century, the superfacto procedure precluded the criminalization of a homicide and allowed a non-peinliche resolution. Seen in this light, it constituted a promise of mercy that slayers relied on and made claims to a relationship between duke and slayer that brought with it a certain responsibility on the part of the former. But superfacto was also a legal concept that allowed the Oberräte to change a trial, and thus criminalize the deed and its perpetrator. Superfacto exempted a number of slayings from criminalization and so ensured the continuing importance of a concept of honorable, non-peinliche manslaughter. Processes of juridification had introduced new categories, sanctions, and procedures to the settlement of homicide during the seventeenth century. But since verdicts continued to be influenced by pragmatic considerations of gute policey, the concessions made by the Oberräte to a slayer’s social circumstances and connections had to be continuously negotiated with ius commune distinctions. At the same time, the expert legal knowledge that influenced the judicial resolution of manslaughter had an important legitimating function during trials. The next chapter discusses examples of how lawyers could use such expert knowledge strategically to justify both their evaluation of evidence and the social and utilitarian considerations that often influenced verdicts.

173  See Schnabel-Schüle, Überwachen und Strafen, e.g. p. 8, 204, 328.

CHAPTER 3

Legitimation: Legal Parameters and Expert Knowledge in Württemberg Homicide Trials The administration of criminal justice in Württemberg was based on a plurality of norms and prescriptions that came increasingly to incorporate expert knowledge. While it was the task of local officials to implement the legal regulations contained in police ordinances, legal and medical experts sifted and applied complex ius commune praesumptiones to homicide cases and gave informed explanations for the causes of death.1 As Ulrike Ludwig has analyzed, the development of a more complex and differentiated administrative framework and the involvement of experts was extolled by political theorists as the basis for a just jurisdiction.2 Ludwig argues that although the ruler was “oberster Gerichtsherr and höchste Appellationsinstanz” (“supreme judge and highest instance of appeal”), “Gleichförmigkeit” or “uniformity” of judicial proceedings was the distinctive characteristic of justice according to early modern German political theory which rejected as arbitrary a ruler’s decisions made outside of these normative administrative channels.3 Aktenversendung, the process of consulting with legal experts, and binding norms and prescriptions regulating procedure were consequently important components of governmental ideals of legitimating justice in Württemberg.4 This legitimising 1  According to Bernhard Diestelkamp, the professionalization and increasing penetration of legal language with scientific discourse was a decisive characteristic of early modern criminal justice. See Bernhard Diestelkamp, Recht und Gericht im Heiligen Römischen Reich (Frankfurt am Main, 1999), pp. 263–275. Martin Dinges cautions, however, against interpreting such processes of professionalization within a teleological framework based on theories of modernization; see “Justiznutzungen als soziale Kontrolle,” p. 506. 2  See Ludwig, Das Herz der Justitia, p. 38. 3  See ibid., p. 38/39. 4  See Schnabel-Schüle, Überwachen und Strafen, p. 54. For literature regarding the spread of Aktenversendung in other parts of the empire, see, for example, Heiner Lück, Die Spruchtätigkeit der Wittenberger Juristenfakultät. Organisation—Verfahren—Ausstrahlung (Cologne, 1998) or Andrea Griesebner and Susanne Hehenberger, “Entscheidung über Leib und Leben. Rechtsgutachter in frühneuzeitlichen Malefizprozessen im Erzherzogtum Österreich,” in Experten und Expertenwissen in der Strafjustiz von der Frühen Neuzeit bis zur Moderne, eds. Alexander Kästner and Sylvia Kesper-Biermann (Leipzig, 2008), pp. 17–31. Although legal experts were for the most part trained jurists, Ulrike Ludwig shows that

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framework of rules and prescriptions was additionally supported by concepts of gute policey and the common good, which influenced the implementation of these norms and the exercise of a ruler’s clemency. A good example of the normative regulation of mercy in Württemberg ordinances on the basis of gute policey is the edict from 1627, which allowed judges to convert a peinliche into a bürgerliche sanction if the defendant was likely to work honorably for the good of the community after serving his sentence.5 Rather than suspend them, judicial discretion was directed by and legitimated with legal norms. In Württemberg homicide cases, the application of legal norms entailed a constant negotiation between the concept of gute policey and rules of evidence, though it is also important not to overemphasize a contrast between these legal parameters, since they often overlapped or reinforced each other. As this chapter aims to show, ius commune rules of evidence or forensic standards were often malleable and could be interpreted to legitimate concepts of gute policey. While political theory extolled the uniform application of legal standards in jurisdiction, the regulatory framework was flexible in practice because expert legal and medical knowledge was often ambiguous and contested, and because the implementation of rules was frequently hampered by organizational problems on the local level. The subsequent discussion first addresses the ambiguity that often characterized ius commune rules of evidence concerning, for example, the nature of the weapon used by the slayer, the cause of a dispute or the slayer’s state of mind. In a second step, the analysis proceeds to shows how the Oberräte could use such ambiguity when they disagreed with a verdict: in such instances they could request a second consilium and hope that its authors would interpret the evidence differently. The aim here is not to argue that lawyers frequently bent the law and said whatever they wanted to, but rather to explore some of the leeway that ius commune allowed jurists when they defined various forms of Excess, a concept that comprised a broad range of dispute scenarios where the evidence was not always clear-cut. The second half of the chapter looks in particular at the treatment of medical evidence. Two aspects are of importance here. First, medical evidence was not always conclusive and jurists could contest the medical inquest as a defensive strategy. Second, Württemberg this was not always the case. In early modern Saxony, government officials who oversaw the administration of criminal justice could also be asked for recommendations, see her article “Ambts halber” kompetent. Die gutachterliche Tätigkeit von Schössern in Straf- und Supplikationsverfahren im 16. und 17. Jahrhundert,” in Experten und Expertenwissen in der Strafjustiz von der Frühen Neuzeit bis zur Moderne, eds. Alexander Kästner and Sylvia KesperBiermann (Leipzig, 2008), pp. 73–83. 5  See above Chapter 2, pp. 95–96.

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ordinances regarding the conduct of medical inquests were not always easy to implement, a factor which could benefit defendants and their counsel seeking justification for lenient punishments. These discussions underscore the important legitimating function of administrative regulations and expert discourses, as well as the strategic behaviour of legal actors within malleable judicial parameters.

Consilia Discourses: ius commune and gute policey

From the late sixteenth century the legal vocabulary of homicide expanded notably. Academic discourse based on the ius commune influenced the strategies of counsel during the trial, whereby university-trained lawyers acted as defense counsel or helped formulate the pleas of the fiscal accusers, the Vögte.6 Law professors, mostly those affiliated with the university in Tübingen, wrote consilia steeped in ius commune references in every homicide case. The Oberräte, themselves lawyers, who for the most part had studied at Tübingen’s university, understood and participated in this learned legal discourse. Ius commune texts regarding evidence contained norms and precepts that were widely accepted among jurists, but there also existed distinctions and disagreements regarding the ways in which these norms should be applied to individual cases.7 Complex and diverse ius commune discussions of evidence in juristic literature allowed consilia writers much room for maneuver when they negotiated legal concepts. Although there were variations with regard to length and detail, German criminal consilia were usually structured in similar ways.8 When Tübingen’s 6  See Schnabel-Schüle, Überwachen und Strafen, pp. 92, 97. 7  See Karl Härter, “Zum Verhältnis von “Rechtsquellen” und territorialen Rahmenbedingungen in der Strafgerichtsbarkeit des 18. Jahrhunderts. Vagabondage und Diebstahl in der Entscheidungspraxis der Kurmainzer Landesregierung,” in Justiz=Justice=Justicia? Rahmenbedingungen von Strafjustiz im frühneuzeitlichen Europa, eds. Harriet Rudolph and Helga Schnabel-Schüle (Trier 2003), p. 440 and ibid., Susanne Pohl, “Schuldmindernde Umstände im römischen Recht: Die Verhandlungen des Totschlags im Herzogtum Württemberg im 16. Jahrhundert,” p. 244. 8  These differences were partly regional; for example, in a comparison between consilia written in Wittenberg and Jena and those drafted by members of Tübingen’s law faculty, August Heeger noted that law professors in Wittenberg and Jena wrote short consilia in the German language. In contrast, jurists at Tübingen’s law faculty employed a mixture of German and Latin and tended towards lengthier deductions. Württemberg consilia therefore often contained a greater number of quotations from laws and ius commune authors. See Heeger, Die praktische Thätigkeit der Juristenfakultäten, p. 76.

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law professors evaluated a case, they did so on the basis of the trial records which also contained the Vogt‘s investigation and letters of supplication. A consilium began with a summary of the “factum,” a description of the circumstances of the homicide. Then followed a summary of the arguments of both fiscal accuser and defense counsel. Both of their pleas centered on the question of the slayer’s intent. While the fiscal accuser usually interpreted the evidence to claim that a slayer had acted in dolus, and thus with a malicious intent to kill, the counsel for the defense sought to establish a case of self-defense or Excess and to allege that the slayer had lacked this kind of intent. After the presentation of these pleas, the law professors enumerated several “rationes dubitandi,” which consisted of arguments that could be advanced in favor of or against those of the accusation and the defense. Then followed the “rationes decidendi,” where the law professors explained their own perspective of the case.9 The consilium ended with a formal verdict suggestion.10 Each argument advanced by the law professors was usually substantiated with a number of legitimating references. Tübingen’s consilia writers referred to Württemberg ordinances, the Carolina, sometimes the Bible, the Digest and to various writings penned by ius commune jurists.11 There was no prescribed hierarchy among these various reference sources, although Württemberg land laws had binding force. The law professors regularly referred to the Carolina, yet passages from the writings of ius commune jurists made up the greater part of these quotations. The Carolina’s regulations on evidence did not con9  See Clausdieter Schott, Rat und Spruch der Juristenfakultät Freiburg i. Br. (Freiburg, 1965) or Geipel, Die Konsiliarpraxis, p. 75. Geipel writes that consilia of the late seventeenth century were no longer structured in this manner, but I have found that homicide consilia often continued to be structured in this way throughout the seventeenth century. 10  Tübingen’s law faculty consisted of six law professors. Each in turn held the office of dean for a term. Upon receiving the request for a consilium, the dean chose which law professor would write it. This colleague then composed a draft which afterwards all six professors discussed and deliberated on. Jochen Geipel argues that the author’s draft was mostly accepted but that occasionally revisions were requested by his colleagues. The final version had to be accepted by all professors, see Geipel, Die Konsiliarpraxis, p. 45. 11  In Tübingen consilia we find references to Italian Commentators such as Baldus de Ubaldis, Bartolus de Saxoferrato, Julius Clarus, Prosper Farinacius, but also to Dutch and French lawyers—e.g. Joos de Damhouder, Andreas Tyraquellus or Hyppolitus de Marsiliis. During the seventeenth century, references to German jurists became more numerous. See also Schnabel-Schüle, Überwachen und Strafen, p. 60. See also Härter, “Social Control,” p. 59, for an explanation of the various legal sources on which German jurists based their judgment of offenses.

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tain much detail, whereas lawyers could find a multitude of corresponding scenarios within the ius commune.12 The numerous quotations, which could sometimes span several pages and yet illustrate only one argument, also demonstrated the law professors’ learnedness and their familiarity with academic discourse.13 Tübingen’s law professors wrote with an academic audience in mind; many of their consilia were published during the seventeenth century and circulated among jurists of other law faculties.14 The ius commune was an important frame of reference for consilia authors, but Württemberg ordinances ensured that the law professors’ decisions were additionally influenced by local circumstances. Governmental pragmatism and considerations of gute policey found their way into the law professors’ evaluations of a case. This was so with Jacob Kürner—killer of Peter Hamburger— in whose case the law professors suggested a lenient monetary sanction to ensure that Kürner could pay financial compensation to the victim’s widow.15 Kürner had promised the dying Hamburger that he would care for his widow and young children, who were rendered vulnerable after his death. A higher 12  In 1571, Tübingen’s law professor argued in a consilium that the regulations of the Carolina should be understood against the background of ius commune (“… und zu dem solche ordination, sunsten den gemeinen geschriebnen rechten nach, daruff si sich allwegen referirt, verstanden werden solle …”) (“… and this law [i.e. the Carolina] should be interpreted in reference and according to the common laws [i.e. the ius commune]”), HStA A 209 Bü 141, consilium from April 28, 1571. 13  In edicts from 1621 and 1629, Duke and Oberräte complained about the excessive length of some consilia, because they contained unnecessary detail that served no purpose other than self-praise. See Geipel, Die Konsiliarpraxis, p. 48/49. 14  See Heeger, Die praktische Thätigkeit der Juristenfakultäten, p. 10/12. During the early seventeenth century, Tübingen’s law faculty contained among their ranks a few nationally known lawyers who published extensively, such as Christof Besold (1577–1638) or Johann Harpprecht (1560–1639) or Christoph Ferdinand Harpprecht (1650–1714), which contributed to the academic orientation of these consilia. Tübingen’s consilia were frequently cited by jurists from other territories. See also Gabriele Nieder, Ferdinand Christoph Harpprecht (1650–1714) (Tübingen 2011), Hermann Lange, “Ius Commune und Statutarrecht in Christoph Besolds Consilia Tubingensia,” in Festschrift für Max Kaser zum 70. Geburtstag, ed. Dieter Medicus (München, 1976), pp. 637–655 or Michael Stolleis, “Besold, Christoph (1577–1638)”, in Juristen. Ein biographisches Lexikon, ed. Michael Stolleis (München, 2001), p. 83. For further reading on the history of Tübingen’s law faculty, see also Sönke Lorenz, “Die Tübinger Juristenfakultät als Spruchkollegium,” in Die Universität Tübingen zwischen Reformation und Dreißigjährigem Krieg, eds. Ulrich Köpf, Sönke Lorenz and Dieter R. Bauer (Ostfildern, 2010), pp. 203–222. 15  See Universitätsarchiv Tübingen 84/10 (1653), pp. 123–132.

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fine or a more severe punishment of a different kind would have rendered it difficult for the slayer to keep this promise.16 Tübingen’s consilia authors also frequently justified a lenient punishment with reference to the Württemberg edict of 1627 which allowed judges to refrain from peinliche sanctions against offenders who were considered ‘useful subjects’ and might still contribute to the local economy.17 Even if they did not refer to the edict, their consilia indicate that law professors tried in general to anticipate the parameters with which the Oberräte evaluated slayings. The jurists generally sought to take into account the financial and social circumstances of slayer and victim when they suggested a verdict. In this, the law professors sought to satisfy local policies and thus their most important client. There were close political and administrative ties between ducal government and law faculty: the university had been founded by a Württemberg duke in 1495, and although the rectors and deans of the university successively acquired rights of self-administration during the early modern period, the dukes remained the nominal supervisors and main sources of financial support for the university.18 On demand, the law faculty issued consilia for courts outside of Württemberg, but they remained the main supplier of consilia for the local courts: judges were regularly instructed by the Oberräte to request the legal advice from Tübingen in criminal cases. Local courts had to pay for these consilia.19 Between the law faculty and the Duke’s advisory circles existed additional connections. The Oberräte were, for example, frequently recruited from Tübingen’s law faculty.20 These various ties of interdependency may also have prompted consilia writers to anticipate the evaluation of a slaying by the Oberräte. Ulrich Falk has argued persuasively that multiple considerations influenced the writing of a consilium and that there was often a latent tendency to anticipate the wishes 16  See ibid., p. 132. 17  For an example, see HStA A 209 Bü 1917 or Tü 84/17, fol. 254v, 1665. In contrast, the law professors suggested in a case from 1654 that Peter Andelfingen should be publicly whipped because his trade (he was a fencemaker) possessed little honor to begin with. Thus, the dishonor which accompanied the sanction of public whipping would not prevent him from pursuing his profession. See Universitätsarchiv Tübingen 84/8, p. 529. 18  See Nieder, Ferdinand Christoph Harpprecht, p. 20 or Sabine Holtz, Bildung und Herrschaft. Zur Verwissenschaftlichung politischer Führungsschichten im 17. Jahrhundert (LeinfeldenEchterdingen, 2002), pp. 107–152 for a discussion of ducal influence on the university of Tübingen during the early modern period. 19  See Schnabel-Schüle, Überwachen und Strafen, p. 57. For the significance for German law professors of income derived from the writing of consilia, see Falk’s informative analysis in Consilia, p. 39. 20  See Holtz, Bildung und Herrschaft, p. 149.

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of a client.21 While it is, of course, difficult to disentangle the various factors that motivated a law professor from Tübingen when writing a consilium for a ducal criminal court, these consilia do at least illustrate that the law professors often gauged the wishes of the Oberräte correctly, since Tübingen’s verdict suggestions were nearly always approved by Oberrat and duke. Although the Oberräte occasionally mitigated verdicts in response to letters of supplication, such reductions were for the most part minor. Stark contrasts between a verdict suggested by Tübingen’s law faculty and the subsequent evaluation of the Oberräte were rare. There were also few stark contrasts within a consilium between the evaluation of a slayer’s intent based on ius commune laws of evidence and the law professors’ consideration of fiscal and utilitarian reasons. Mostly, these latter arguments were applied to cases where the law professors had already accumulated a number of mitigating circumstances based on ius commune rules of evidence that allowed the presumption that a slayer had lacked the intent to kill. Unintentionality, as we have seen in previous chapters, was more than an analysis of a slayer’s state of mind. It was also a character stamp that was a prerequisite for further benefits, such as an exemption from a peinliche sanction according to the edict from 1627. Although the fourteenth-century Italian Commentator Baldus argued that non-capital manslaughter or Excess could be committed with intent (a minor dolus in contrast to a dolus praemeditatus), Excess was generally defined as an unintentional slaying in Tübingen’s consilia.22 When law professors established a case for unintentionality, ius commune praesumptiones and considerations of gute policey could reinforce each other: an offender’s reputation, previous conduct and his social status qualified a defendant as a useful subject worthy of lenient treatment but also indicated lack of intent according to ius commune rules of evidence.23 There were also other, more solid, pieces of circumstantial evidence that law professors needed to consider in a consilium, such as the weapon used by the slayer, the manner in which he had struck his victim or the timing of his attack. These were also 21  As Falk rightly argues, this is not to say that early modern consilia were universally corrupt, but to keep in mind that pecuniary and political dependencies had to be balanced with professional standards, and that this balancing could tip towards the former in order to please a client; see Falk, Consilia, p. 56. According to Falk’s analysis, this was especially so in civil cases, where the clients were often the parties themselves who had need of legal expertise to present to the judge in support of their case. 22  See Woldemar Engelmann, Die Schuldlehre der Postglossatoren (Leipzig, 1895), p. 115/116. 23  These praesumptiones are also mentioned in Article 143 of the Carolina, see Kaufmann, Carolina, p. 94.

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important indicators of a slayer’s intent, but they could be interpreted in different ways. The concept of Excess covered homicide scenarios that fell short of planned and premeditated murder and often involved weapons that were tools or utensils quickly grabbed on the spur of the moment and where it was doubtful whether they constituted so-called “lethal” instruments. Although law professors often drew a line at guns (which were generally considered a praesumptio for an intent to kill), ius commune rules on evidence were often ambiguous when applied to sudden slayings occurring in the heat of the moment. For law professors who sought to make a case for unintentionality, perhaps prompted by utilitarian considerations of gute policey, ius commune writings offered a wide array of arguments. When Tübingen’s law professors used these texts, they quoted from an intertextual system where writers constantly referred to, confirmed or disagreed with each other, a body of writing which constituted an ongoing discussion rather than an uncontested canon. Furthermore, there was no binding authoritative text or prescribed hierarchy of writings that obliged each law professor to take a certain view of a case. Law professors could, for example, quote the Digest when they discussed the evidence in a particular homicide case, although they could just as well quote from a particular interpretation of this passage in the Digest. It is true that ‘fashions’ existed with regard to particular ius commune jurists whom consilia authors liked to cite in support of their deductions. For example, historians have remarked that references to the writings of German jurists became more frequent during the seventeenth century especially concerning the literary output of the Saxon lawyer Benedict Carpzov.24 In criminal cases, his Practica rerum criminalium, published in 1638, became a standard work of reference.25 Yet Carpzov’s rising importance did not preclude German consilia 24  See Schnabel-Schüle’s discussion of the influence of the so-called usus modernus pandectarum on consilia. This school of thought emerged during the course of the seventeenth century. Jurists analyzed how the ius commune compared, contrasted with or could be modified by German customary law, Überwachen und Strafen, p. 61. Schnabel-Schüle, p. 71, points out that the juristic literature quoted by Tübingen’s law professors depended largely on the contents of their private libraries, since the university did not possess a law library. 25  In his Practica, Carpzov sought to reconcile ius commune concepts with Saxon legal custom. For an introduction to Carpzov’s work, see Günter Jerouschek, Wolfgang Schild and Walter Gropp, eds., Benedict Carpzov. Neue Perspektiven zu einem umstrittenen sächsischen Juristen (Tübingen, 2002). For a discussion of Carpzov’s influence on Tübingen’s criminal consilia, see Schnabel-Schüle, Überwachen und Strafen, p. 71. See also Holtz, Bildung und Herrschaft, pp. 203–235, for a detailed analysis of references to ius commune jurists in Tübingen’s consilia.

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writers from quoting non-German ius commune texts or from occasionally disagreeing with him.26 The ius commune quoted in consilia remained a malleable legal code throughout the sixteenth and seventeenth centuries from which jurists could, within limits, pick and choose quotations to justify their interpretations of the evidence. There was thus a considerable amount of leeway if considerations of gute policey prompted law professors towards a favorable construction of the evidence. Law professors could refute ius commune arguments with quotations from jurists with a contrasting view; moreover, they could also quote the writings of a particular jurist selectively. A consilium from 1572, serves to illustrate the use of such rhetorical strategies. Tübingen’s law professors applied ius commune arguments strategically to refute presumptions against Michael Schaich, the killer of Hans Feuer. The circumstances appeared grave: Schaich had knifed an unarmed man in response to a verbal insult. There were no witnesses aside from the victim’s wife to confirm the slayer’s claim that he had been insulted and provoked, and her evidence was disputed as partial in court. There were, however, pragmatic considerations in Schaich’s favor which predisposed the law professors to take a negative view of the fiscal accuser’s demand for the death penalty. The slayer was an upstanding citizen, a good householder, and, as the law professors noted approvingly, he had also reached an agreement with the family of his victim prior to the trial.27 They suggested that Schaich be banned from his village district and from carrying weapons, from frequenting taverns and from attending public social events until the Duke might lift these bans.28 In order to justify this verdict, the law professors carefully refuted each of the presumptions that spoke in favor of an animus occidendi. Two of these presumptions concerned the wound that the victim had received and the type of weapon that the slayer had used. Schaich had struck the victim’s head with a knife. Most Commentators considered the use of weapons such as knives, swords or daggers that were especially dangerous or ‘lethal,’ as they said, an aggravating factor. The same was true with regard to wounds on especially 26  Heeger enumerates several examples in which Tübingen’s law professors departed from Carpzov in their consilia, see Die praktische Thätigkeit der Juristenfakultäten, p. 41. Heeger argues that during the seventeenth and eighteenth centuries, differing regional interpretations of ius commune emerged from the more important universities, such as an usus württembergico or an usus Saxonico. Since consilia were frequently compiled and circulated in bound volumes, these regional interpretations often gained influence beyond their home universities. See ibid., p. 12. 27  See HstA A 209 Bü 141, consilium from April 28, 1571. 28  See ibid.

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vulnerable body parts, such as the head. Yet the law professors were skilled in setting ius commune arguments against each other. In this instance, they conceded that Commentators such as the French jurist Hyppolitus de Marsiliis considered a wound in the head an important praesumptio for an animus occidendi.29 But they subsequently referred to the Italian jurist Ägidius Bossius who had argued in a consilium that such an animus occidendi could only be presumed if the slayer had also injured the victim’s brain, which Schaich had not done.30 Tübingen’s law professors were equally resourceful in their discussion of the slayer’s weapon. Although most Commentators accepted the Digest’s distinction, made in Hadrian’s lex Cornelia de siccariis, between household tools grabbed in haste versus swords and knives, not every Commentator interpreted this law to indicate that all knives were equally lethal.31 The jurists from Tübingen based their argument on a consilium written by the Italian jurist Franciscus Aretinus. He explained that a knife only proved an animus occidendi if it was a type of knife that was forbidden from carrying or that the slayer did not usually carry.32 Tübingen’s law professors asserted that this was not the case, thus implying that Schaich had killed Feuer with a knife that farmers and artisans were commonly allowed to use according to Württemberg law. Consequently, the law professors argued, one could not presume dolus from the use of this weapon. Their reasoning is a good example of the ways in which law professors could simply circumvent a passage from the writings of the Commentators by referring to a differing interpretation.33 Jurists of the ius Commune not only wrote manuals and handbooks, but also published collections of consilia they had written for paying clients. In such consilia, jurists often tried to stretch the interpretation of evidence or find loopholes in doctrines about evidence in order to make a particular claim. 29  Ibid. 30  Ibid. 31  See Mommsen et al., vol. 4, p. 819. 32  See ibid. 33  Another difference of opinion among Commentators concerns the interpretation of the requirement of tempus. In order for a slaying to qualify as self-defense, the slayer had to react immediately to an attack. A delayed response constituted a violation of the requirement of tempus. If the slayer had violated this requirement due to just anger, the slaying could be considered an Excess. Most Italian jurists defined the acceptable time frame for the slayer’s response rather narrowly, but the jurist Jacobus Menochius (1532–1607) argued in this consilium that the requirement of tempus was only slightly exceeded if the slayer killed weeks after his victim’s attack, as long as he proved that his anger had lasted this long. See Engelmann, Die Schuldlehre der Postglossatoren, p. 125.

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Frequently, ius commune jurists used the concept of just anger to legitimate mild sanctions. Anger explained the slayer’s excessive reaction according to the theory of Excess. Late medieval Commentators and German jurists, such as Carpzov, stressed that anger had to have a just cause in order to be mitigating. Just cause was an elastic concept, however, and ius commune literature offered a variety of scenarios and definitions. “Just causes” were arranged on a spectrum; some causes were “juster” and more deserving of a lenient punishment whereas others could be considered less “just” and result in a more severe sanction. Carpzov suggested, for example, that judges use a variety of arbitrary punishments, ranging from monetary fines to public whipping.34 Jurists generally suggested the careful weighing of all circumstances in such cases.35 The “justness” of a slaying’s cause could be a matter of interpretation. This was also true as far as the definition of anger and its mitigating quality was concerned. Ius commune definitions of a slayer’s anger were malleable and in Württemberg consilia, law professors used different concepts of anger to distinguish between degrees of intent and thus of culpability. As the following examples illustrate, consilia authors could use these concepts to reinforce their evaluation of a slayer’s character and to support a lenient judgment if reasons of gute policy rendered this opportune. There are subtle differentiations within ius commune literature between two types of mitigating anger: one emphasized the just indignation of a slayer, and another which focused more strongly on the fact that his judgment was impaired at the moment of the homicide. Most Commentators agreed and stressed like the Italian lawyer Julius Clarus, writing during the sixteenth century, that it was the provocation which mitigated the punishment rather than the impulse itself, and emphasized that this impulse could only be mitigating if the anger had been a maxima iracundia, a greatest anger, which however was very hard to prove and extremely rare.36 There existed a different interpretation, however, advanced by the French Commentators Hyppolitus de Marsiliis and Andreas Tyraquellus, both writing during the sixteenth century. These lawyers went a step further in diminishing the responsibility of slayers who killed impulsively. They argued that slayers overcome by an impulse were generally not themselves—their senses were deranged and their capacity to form an intention was severely impeded. To them, it was the impulse, an impediment to the senses, rather than the provocation which constituted the mitigating

34  See Oehler, Practica, pp. 223–224 (pars. 1, quaestio 29, nr. 15–25.). 35  See, for example, ibid., p. 226 (pars.1, quaestio 29, nr. 35–37.). 36  See Engelmann, Die Schuldlehre der Postglossatoren, p. 119.

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circumstance. An angry man was comparable to a madman.37 For both jurists this argument implied that the punishment of the angry slayer should also be mitigated even if his victim had not caused his anger.38 This opinion was rejected by contemporary Italian Commentators, but also by most German jurists.39 Jurists maintained a distinction between an unintentional anger based on such a just cause and an unjust, intentional rage, often equated with murder and indicative of a bad and unchristian character, which was separate from the temporary anger of a slayer who had committed an Excess. Compare the case of Konrad Hauser from 1649, where anger was taken as an indication of a generally uncivic character. Hauser had assaulted a tavern apprentice for no good reason, merely because he had not responded to his jests. The jurist writing the consilium for this case emphasized that Hauser was not just guilty of homicide, but also of violating rules of conduct prescribed both by the land law and by religion. Hauser had “profaned the Sunday by playing skittles in a tavern …” rather than attending the church service and suddenly insulted the tavern apprentice whom he attacked without prior provocation, finally stabbing him.40 Hauser was not propelled by a just anger, but by an “unnecessary anger” that had “sprung from his own mischief.”41 The author chastized the slayer with a religious language that was usually reserved for murder verdicts. The law professors emphatically denied that his anger could serve as an excuse if the defendant could still make such choices and argued that if such “riotous anger” was accepted as a mitigating circumstance, this was a “recipe for encouraging misdeeds and terrible manslaughter … Innocent blood would be shed and cry for vengeance to God, whose wrath would 37  See, for example, Andreas Tyraquellus, De poenis legum ae consuetudinem statutorumque temperandis aut etiam remittendis (Venice, 1565), prima causa, no. 20. 38  See ibid., no. 10: “…. etiam si, qui occisus est, non dederit causam irae, quae occisorem ad maleficium impulerit, ut videlicat in hoc casu sit mitius puniendus …” (“also if, who is killed, did not cause the anger, which led the slayer to the crime, it is evidence that in this case he may be punished more leniently”) and Hyppolitus de Marsiliis, Practica causarum criminalium (Lugano 1529), § Quoniam, no. 94: “Attamen est in potestate iudicis non condemnare homicida poena mortis quem impulit iracundia, orta etiam aliter quam ex facto offensi” (“And it nevertheless is in the power of the judge not to condemn to the death penalty the slayer whom anger drives, which sprang from causes other than the acts of the injured”). 39  See, for example, Oehler, Practica, p. 49 (pars 1, quaestio 6, no. 16). 40  HStA A 209 Bü 1906, consilium from June 25, 1649: “… das angeclagter denn sontag prophaniert mit kegel spiehl …” This consilium was written by two independent jurists, rather than by law professors from the university of Tübingen. 41  Ibid.: “… aus unnötigem zorn …”, “… aus aigenem unfug …”

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descend upon the land.”42 Hauser was executed. In their evaluation of Hauser’s anger, the law professors denied again that anger produced a state comparable to temporary insanity which would be exculpating. Such unjustified rage was always associated with intent. Throughout the seventeenth century, fiscal accusers often used anger as an incriminating circumstance to bolster their claims of intent and with them a request for the death penalty. In his accusation of Jakob Dettinger from 1672, the counsel argued that Dettinger deserved the death penalty for his homicide, since he had “taken his reason off like a set of clothes,” and had therefore become a “wild animal” that killed sinfully and maliciously. This concept of unchristian and unreasonable anger might have been reinforced by governmental policy norms which warned of the evil effects of such wild and uncontrollable anger: according to a policy ordinance from Württemberg, it could lead to “murder and other vices.”43 While a slayer’s fury could thus indicate a character fault which prevented him from qualifying as a “good subject” and from deserving lenient treatment, a slayer’s just anger could be interpreted as an indication of his overall good character. In a consilium from 1650, the depiction of the just anger of Martin Erckenweiler illustrated not only that he had just cause to be angry but also that he was a lawabiding and thus a “good” subject. This representation of his emotional state supported the author’s utilitarian estimation of Erckenweiler’s position in his community. The law professor reasoned that Erckenweiler had 42  Ibid.: “… wann man dergleichen geringe hundtsuff, zorn, gechei, und andere colorirte scheinursachen zur entschuldigung vortringen lassen wellte, würde thür und thor geöffnet zue der gleichen unthaten und erschroeckenlichen todtschlägen und viehl todschläger der ordenlichen straff entgehen entlich das vergoßene unschuldige blueth umb rach gen himel zu gott schreÿen und göttliche bestraffung verursachen …” 43  HStA A 309 Bü 13: “… die menschliche vernunfft ausziehet und in ain wildes und reissendest hier verwandelt …” Protestant moral literature might have lent additional credibility to this dicourse; the popular Protestant poet Hans Sachs was, for example, emphatic about its evil effects. He characterized the angry man as one for whom “the heart beats and is swollen, reason and modesty count for nothing anymore, his mind is enraged, his blood is boiling, his body is shaking … this is what an angry man is like; he is without reason … he will bring unhappiness upon himself that will haunt him all his life” (“Das hertz klopffet und auffgeschwilt, Vernunfft und pschaidnheit nichts mehr gilt, entrüstet wird all sein gemüt, darzu tobet all sein geblüt, ihm zittert auch sein gantzer leib … So ist der mensch in seinem zorn On vernunfft … das er mit unglück wird beladen, das im offt bringt sein lebtag schaden …”). See Adalbert Keller, ed. Hans Sachs. Werke, vol. 20, p. 495/496. Sachs stressed that it was a man’s responsibility not to be overwhelmed by anger, noting that he could resist its harmful effects if he “with reason tamed [it]” “… mit der vernunfft den zoren zem …”; ibid., p. 497.

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always “sich wohl verhalten” (“behaved well”) and suggested a lenient punishment in the form of a monetary fine which would not shame him or prevent him from continuing to provide useful services to the community as a baker.44 Erckenweiler was a Tübingen citizen who was one night rudely roused from his sleep, when one baker apprentice and two butcher apprentices attempted to wake him. When he did not react to their knocks on the door, the apprentices started to bang at his window shutters. Erckenweiler woke up and angrily called the apprentices “hundsfött” (“dog’s cunt”).45 According to the author of the consilium, the baker’s apprentice took offense, and yelled back in turn that “he inside [Erkenweiler] might be such a one [i.e. a hundsfött], he [the baker] for his part was an honorable man.46 Erckenweiler told him to leave, “otherwise he would drive him away himself.”47 The baker’s apprentice challenged him to “come outside if he felt like it.”48 Erckenweiler immediately got up, grabbed a Brechscheide (a heavy tool shaped like a crowbar but made of wood), opened the door and demanded why the three were molesting him in his house and repeated: “I will drive you away.”49 The baker’s apprentice, however, had drawn his epee and held it in front of him, pointing towards the door, “as if he had been waiting” for Erckenweiler.50 Erckenweiler took immediate action and hit the epee with his Brechscheide so that the blade broke and subsequently struck the baker’s apprentice who fell to the ground. Erckenweiler then hit one of the butcher apprentices, named Georg Seitz, killing him with this blow.51 Erckenweiler subsequently fled to Reutlingen but returned to stand trial after receiving a salvus conductus, which as we have seen in the previous chapter generally prompted consilia writers to suggest a lenient punishment. The aggravating circumstance in Erckenweiler’s case was that it could not be established without a doubt that his life had been threatened. He had committed an Excess because he could have stayed indoors, and he had also not killed the baker’s apprentice who had insulted him and met him with a drawn sword, but the butcher apprentice standing next to him. The “Reutlingen factor” together 44  See Universitätsarchiv Tübingen, 84/8, fol. 788r/v. 45  See ibid. fol. 782r: “… huntsf …” (The author of the consilium abbreviates the term “hundtsfött.” It was common practice to abbreviate especially rude words in official documents.) 46  Ibid., p. 782r: “… er drinnen könne wol selbst der gleichen einer sein, er seÿe ein redlicher kerl …” 47  Ibid.: “… er wolle ihn sonsten fortbringen …” 48  Ibid.: “… er sole nur außer kommen wann er lust habe …” 49  Ibid.:  … ich will euch bald hinwegbringen …” 50  Ibid., p. 782v: … alß wann er uf ihn gewartet …” 51  See ibid.

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with Erckenweiler’s previous good conduct and useful position in his community prompted a mild judgment of circumstantial evidence. The author of the consilium established that a Brechscheide was not a lethal instrument because it was made from wood rather than from steel (thereby ignoring Carpzov’s argument that a heavy wooden tool could also be considered lethal) and stressed the fact that, in contrast, the baker’s apprentice had threatened Erckenweiler with a lethal weapon.52 While theses pieces of circumstantial evidence indicated a lack of intent, Erckenweiler’s emotional state explained why his reaction to the apprentices’ provocations had been excessive. In his description of Erckenweiler’s just anger, the consilium writer interpreted this emotion as indignation rather than as emotional perturbation and thus avoided a possible confusion with murderous rage. The consilium describes how Erckenweiler’s just anger had been roused and steadily increased due to the apprentices’ successive provocations. He first became “angry and displeased” when he was roused from his sleep.53 This “displeasure” increased to “just anger and irritation,” when none of the three apprentices answered him when he asked who they were.54 When he found himself face to face with the armed baker’s apprentice, this just anger had increased to an “iustissima ira,” a most just anger, which prevented Erckenweiler from judging the situation correctly and thus from perceiving which of the apprentices had provoked him.55 The law professor represented Erckenweiler’s anger as that of a justly indignant citizen provoked by the uncivic behavior of his victim. In assessing the role played here by anger, the author argued that Erckenweiler’s response was just and understandable, but also downplayed the effects of anger on his mind. While his just anger had impeded his judgment, the author claimed that the greater part of this impediment had resulted from the confusion caused by the darkness. While Erckenweiler exceeded the requirements of self-defense by opening the door, thus seeking danger instead of avoiding it, his anger was comprehensible rather than irrational: the language of the law professor almost implied that Erckenweiler’s action displayed his good sense. The author thus used the concept of just anger to reinforce the author’s evaluation of his general worth as a subject. This example shows how the consilium author used the concept of anger to support considerations of gute policey. 52  See ibid., fol. 787r. See Oehler, Practica, p. 29 (pars 1, quaestio 3, no. 13). 53  Ibid., fol. 783v: “… zu zorn und unwillen bewegt worden …” 54  Ibid., fol. 783r: “… irritiert und … ad iustam iram provocirt worden …” 55  Ibid., fol. 784r: “… justissima ira …” Here the author of the consilium is quoting a treatise written by the jurist Andreas Gail in order to explain Erckenweiler’s emotional state.

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Just anger was not considered separately from, but was a logical conclusion of, the consideration of more tangible evidence, such as the course of the dispute or the weapon that the slayer had used. Such pieces of evidence could be constructed to indicate a lack of intent, which was reinforced by the concept of just anger. Law professors could elaborate their representations of this anger and depict it in such a manner that it demonstrated the slayer’s general “just” character and thus support their interpretation of a homicide as unintentional. Since just cause was a flexible concept, just anger could be used to interpret the slayer’s mental state in a number of different scenarios. One more example serves to illustrate the elasticity of the ius commune concept of anger in Württemberg consilia. Although the law professors rejected the French Commentators’ interpretation of anger as a case of diminished intent, ius commune offered consilia authors another way in which they could stress mental perturbation in those cases where gute policey prompted a lenient verdict, but where it was a bit more difficult to construct a case of just cause or where the slayer’s anger seemed a bit less just. While jurists were reluctant about taking too far the concept that emotional perturbation mitigated guilt, they occasionally relied on a combination of ire and drunkenness. Drunkenness constituted a state of diminished intent according to ius commune, which mitigated punishment. While policey regulations frowned on bawdy drinking customs and contemporary morality condemned drunkards as irresponsible householders, drinking was also an important and accepted part of male sociability, and occasional drunkenness did not necessarily indicate a character flaw.56 Drunken anger allowed the law professors and the Oberräte to maintain that a slayer’s actions did not necessarily define his character or measure his worth as a subject. While a slayer who had been propelled by drunken anger might stand in need of correction, his intoxicated state at the time of the killing did not annihilate his worth as a subject.57 Ius commune thus allowed nuanced interpretations of emotional and mental states, which could be used to support considerations of gute policey. 56  For a nuanced discussion of cultural and legal attitudes towards drinking in early modern Germany, see Ann Tlusty, Bacchus and Civic Order. The Culture of Drink in Early Modern Germany (Charlottesville and London, 2001), for example, pp. 80–102. 57  See, for example, Tü 84/8, fol. 257v, 1634, HStA A 309 Bü 117, 1657 or HstA A 209 Bü 141, 1571. It is important to note, however, that drunken anger was only considered mitigating if the homicide could be classed as an Excess. In the above mentioned case of Konrad Hauser, the jurists were unimpressed with the defense counsel’s allegation that Hauser had been drunk and should thus be judged leniently. Hauser had clearly been the aggressor so that neither his anger nor his drunkenness could save him; see HStA A 209 Bü 1906, 1649.

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When Tübingen’s law professors wrote consilia for their ducal patron’s court, they continually balanced local pressures and necessities with the application of ius commune rules of evidence. The interpretation of ius commune in these consilia was thus colored by local factors, and, in the great majority of cases, duke and Oberräte were satisfied with the verdicts suggested by the legal experts from Tübingen.58 But there could also be exceptions. Very occasionally, legal principles and those of gute policey clashed, and the Oberräte were dissatisfied with the suggestion they found within a consilium. This could happen when Tübingen had too readily advocated leniency, or if the law professors had for once ignored local circumstances which encouraged leniency. In some cases, the dissatisfaction of the Oberräte was not even directed at Tübingen’s law faculty, because an independent lawyer or a different law faculty had written the consilium. This happened only rarely, and we cannot glimpse the reasons for these commissions in the sources.59 The remainder of this section discusses some of these rare cases of governmental dissatisfaction with a consilium and the solution that was forced upon duke and Oberräte, namely, the request of a second consilium (Zweitgutachten).

Strategic Use of Experts: Second Consilia

The requesting of a second consilium was standard practice throughout Germany in cases where a first one was considered unsatisfactory. Often, the original was enclosed with the court records so that the jurists who wrote the second assessment already had an inkling of the client’s drift. Comparisons between first and second consilia are interesting because they illustrate how important it was to judicial authorities to legitimate their decisions within the framework of the ius commune: rather than exercise the ducal prerogative of overriding a consilium, duke and Oberräte regularly sought to bolster their own wishes with another source of legal expertise. And, like the examples mentioned above, comparisons between first and second consilia underscore the malleability of ius commune concepts which allowed for the adaptation of 58  Karl Härter uses the term “policification of the criminal law” to refer to the increasing influence of considerations of gute policey on judgments in criminal cases, see Karl Härter, “Social Control”, p. 43. Apparently this process also included a “policification of the ius commune,” as law professors interpreted the ius commune with gute policey in mind. 59  At times, the law faculy was perhaps overburdened with the drafting of consilia. In the records, the law professors repeatedly mentioned this problem. Oberräte and duke were sometimes tired of waiting; see Geipel, Die Konsiliarpraxis, p. 48/ 49.

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legal rules to governmental wishes. Second consilia were a useful tool which the Oberräte resorted to sparingly, but they could do so with considerable effectiveness. Three examples illustrate possible ways in which duke and Oberräte could utilize the flexibility of legal precepts to legitimate their own wishes with expert legal knowledge. One instance in which the Oberräte might request a second consilium was if the punishment suggested in the first consilium appeared too harsh, for example, if the death penalty had been requested. This was so in the cases of the slayers Hans Rothfelder and Hans Lipp. In both cases, duke and Oberräte were averse to changing a death sentence to a bürgerliche punishment without additional confirmation from a legal expert. The circumstances of these homicides were especially serious. In Rothfelder’s case, it was a matter of debate whether the victim had provoked him at all, and in the case of Hans Lipp, the law professors evaluated a slaying where the defendant had struck without prior provocation, putting the crime in the vicinity of murder. Both slayings were eventually defined instead as non-capital manslaughter; the versatility of ius commune legitimated these second assessments. The consilia in Rothfelder’s case show the malleability of the concept of Excess, and those in Hans Lipp’s case illustrate how far the ius commune concept of negligence could be stretched. Political expediency and consideration of local circumstances prompted this kind of flexibility. In 1657, Hans Rothfelder stood trial for the killing of Hans Rebstock during a brawl at a fair in the village of Jesingen.60 The circumstances of the slaying gravely implicated Rothfelder. At the fair, Rothfelder had joined a fight between Hans Arnold, a weaver, and Jacob Mesinger, a cooper. The investigation of the case could not satisfactorily uncover why Rothfelder had entered the melee. Shortly afterwards, Hans Rebstock, the mayor of Jesingen, arrived to make peace and tried to separate the disputants. During the ensuing tussle, Rothfelder killed Rebstock with a blow on the head with his epee. During the trial, Rothfelder’s defense counsel argued that Rothfelder had acted in self-defense because he had been attacked prior to the slaying. Mesinger had slightly wounded Rothfelder’s hand, and Rothfelder also claimed that Rebstock had hit him with a stick, a claim corroborated by one of the witnesses.61 Unfortunately, neither the trial records nor the correspondence between the Oberräte, Vogt and duke survive; only the two consilia are extant. We can only speculate about the reasons for ordering a second consilium, nor do we 60  See HstA A 209 Bü 1917. 61  See ibid., 1st consilium from July 8, 1657, for a summary of the arguments of the defense counsel.

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know how the Oberräte ultimately decided the case. A closer look at these two consilia is nonetheless worthwhile, because they illustrate the flexibility with which ius commune concepts could be applied to justify differing interpretations of the course of a dispute. The first consilium regarding this case was written by two lawyers from Tübingen, but they did not belong to the university.62 Perhaps we can guess at the reasons for the choice made by the Oberräte. Hans Rothfelder was not a Württemberg citizen, although his home village was located just a few miles from Tübingen. He was an inhabitant of Poltringen, which belonged to the barons of Wolkenstein who in turn held parts of the village as a fief from the house of Habsburg.63 The authors of the first consilium mentioned that the prosecution of the case had been made more difficult by quarrels over rights of jurisdiction between the Austrian administration, (referring to the Wolkenstein officials) and Württemberg.64 If there was debate over where the trial should be held, duke and Oberräte had evidently asserted themselves, since Rothfelder was tried in a Württemberg court. Perhaps after gaining this point, the Oberräte wanted to make a concession to the Wolkensteiner barons and thereafter employed two independent jurists rather than engaging the law faculty of Württemberg’s university. But these jurists did not take a lenient line, and suggested capital punishment. Perhaps the lawyers imagined that the Oberräte were inclined to be harsh towards a stranger who had killed the mayor of a Württemberg village with what appeared only a minor provocation. The Oberräte were dissatisfied with this consilium, however. As we learn from the second consilium, the baron of Wolkenstein had himself written a letter of supplication on Rothfelder’s behalf.65 It is possible that neither duke nor Oberräte wanted to strain relationships between the earldom and the duchy further after there had already been some disagreement over the location of the trial. Perhaps this was the reason the Oberräte asked for a second consilium, and this time it was written by a law professor from Tübingen. Since his was a second opinion, the author was most certainly aware that the Oberräte wished

62  Jochen Geipel finds in his analysis of Tübingen’s consilia that the consultation of private jurists was not infrequent, although in homicide cases it was the exception. See Geipel, Die Konsiliarpraxis, p. 26. 63  Roland Fakler, Ammerbuch (Norderstedt, 2013), p. 58. 64  The authors of the consilium mentioned that two witnesses for the defense had not been examined due to “quarrels over jurisdiction” (“Jurisdictionsstrittigkeit”) between the House of Austria and Württemberg; see ibid. 1st consilium. 65  See ibid., 2nd consilium from August 17, 1657.

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for a more lenient verdict. Tübingen’s verdict was indeed milder; the law professors suggested five years of military service.66 The authors of the first consilium had taken a strict approach because they did not accept that Rothfelder had acted in self-defense. The authors had written that neither the alleged attack by Mesinger nor the one by Rebstock justified Rothfelder striking the latter. If Rebstock had hit Rothfelder with a stick, then Rothfelder had not been justified in striking Rebstock with his epee, since Rebstock’s blow had not constituted an act of aggression but one of making peace; he had only used his stick in order to separate the disputants.67 And if Mesinger had truly wounded Rothfelder’s hand (a detail which was unclear, since there was only one witness who mentioned the blow), then Rothfelder had no cause to hit Rebstock, since the latter had nothing to do with Mesinger’s attack.68 According to this view of the dispute, Rebstock was a “tertium,” an uninvolved third party who had not initiated an attack against Rothfelder.69 Yet Rothfelder had wounded Rebstock “mit bloßer wehr” (“a naked blade”) and thus caused his death.70 According to the jurists, Rothfelder’s unjustified attack could not be excused with hot anger, as the defense counsel had alleged, referring to Carpzov who rejected the use of hot anger as a mitigating circumstance where just cause was lacking.71 Another argument that justified the imposition of the death penalty was Rothfelder’s choice of weapon. His hooked epee, “fast einem polnischen säbel ähnlich” (“almost resembling a Polish saber”) was a weapon “ad caedem perpetrandam apto” (“fit to perpetrate murder”).72 The jurists referred to those passages in Carpzov in which the author explained his concept of dolus indirectus: that the use of a lethal weapon could be interpreted as a sign of dolus, or malicious intent to kill, even if the slayer had only intended to wound his opponent.73 Carpzov restricted the application of dolus indirectus to situations in which the slayer killed without sufficient provocation of the victim, which 66  See ibid. 67  See ibid., 1st consilium. 68  See ibid. 69  Ibid. 70  Ibid. 71  See ibid. The passage by Carpzov that the jurists referred to can be found in the first part of Carpzov’s Practica rerum criminalium, quaestio VI, no. 7 et seqq. See also Oehler, Practica, p. 47. As discussed earlier, several French Commentators argued that hot anger mitigated the killing of an uninvolved third party, but this concept was rejected by the majority of jurists. 72  Ibid. 73  See ibid. Carpzov discusses the concept of dolus indirectus in the first part of his Practica (quaestio 1, no. 27 et seqq.) See also Oehler, Practica, pp. 8.

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was just how the consilia authors defined Rothfelder’s slaying. These facts overruled other presumptions mentioned by the counsel of the defense, for example, the argument that Rothfelder and Rebstock had not been enemies and had not quarrelled previously.74 Accordingly, the poena ordinaria could be imposed.75 The Tübingen law professors refuted these allegations and recommended instead a poena extraordinaria, probably aware that this was what the Oberräte wished. To do so, they had to legitimate their claim that the slayer had not possessed a direct or indirect will to kill Rebstock. The jurists used a different ius commune concept to that employed by the authors of the first consilium to refute the argument that Rothfelder had been the instigator of the fight and had hit Rebstock without cause. According to several ius commune jurists, a homicide that happened “in rixa,” in other words during a brawl with unclear origins, could not be punished with the poena ordinaria.76 Instead of concentrating solely on the interaction between Rothfelder, Mesinger and Rebstock, as the authors of the first consilium had done, Tübingen’s law professors took into account the fact that the incident had taken place in the context of a larger fight in which a number of disputants were involved. They referred to witness statements indicating general chaos, such as the description by one witness of “gefecht and getümmel” (“fighting and turmoil”), and to another claim from a witness who saw “several people jumping about and around each other with their epees drawn, and Mesinger had drawn his knife.”77 This alleged confusion allowed the law professors to conclude that it was unclear who had been the original instigator and therefore that the poena ordinaria could not be imposed.78 74  The jurists wrote “dann man jetzmahlen nicht auff daß praeteritum, ob er gegen den Verwundten einige Feindtscahfft und widerwillen getragen, zuesehen, sondern auff gegenwärtig factum, undt auff den Actum vulnerandi selbsten, welcher sein boßhafftig gemüth tum temporis erstdedicierter maßen gnugsam an den tag geben”(“… one should now not look to the past, whether he had been enemies with the victim or not, but one should regard the facts as they present themselves and especially the act of wounding itself, which shows his malicious intention, as has just been demonstrated …”) ibid. 75  See ibid. 76  See ibid., 2nd consilium, where the jurists quote several passages to substantiate this argument. There were different interpretations of the concept of a homicidium in rixa, see Brunnenmeister, Die Quellen der Bambergensis, p. 192, fn. 1. 77  See HStA A 209 Bü 1917, 2nd consilium: “Er habe Leüth gesehen untereinander umbspringen, welche die degen hauß gehabt, der Küeffer aůch mit seinem bandmesser umbgeloffen.” 78  Ibid.: “Und dieweil dann obdeducierter maßen in disem beschwehrlichen casu man nicht gewiß, were aigentlich autor rixa und aggressor gewesen, so kann auch in solchem dubio die ordenliche todtsstraff kein statt fünden” (“and because one can not be certain—as has

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After stating this general presumption that it was difficult to ascertain the primary aggressor, the law professors then raised presumptions that rendered it likely that Rothfelder had not attacked without provocation. The consilia writers explained that Rothfelder had not in fact attacked an uninvolved third party, as the independent jurists had claimed—rather, he had defended himself against two allied aggressors. This argument was based upon the testimony of witnesses who had mentioned that Rebstock and Mesinger were standing next to each other. Although the testimony could not establish without doubt which of the three disputants had been the first to use violence, Rebstock’s and Mesinger’s proximity, as well as the fact that both hit Rothfelder at some point, could be taken as proof that “Mesinger and Rebstock had opposed the defendant together.”79 The jurists argued that Rothfelder must have been aware of Mesinger standing nearby with a drawn blade, and that he had hit Rebstock because he was “terrified of his two opponents, one of whom was armed.”80 In this way, the authors of the consilium treated Mesinger and Rebstock as one enemy, and suggested that Rothfelder had done the same. From this reconstruction of events, the law professors derived the following praesumptio: if Mesinger and Rebstock had both opposed Rothfelder, then it could hardly be suggested that Rothfelder had been the aggressor.81 The jurists quoted the Italian Commentator Bartolus who had written that “it was unlikely that one person would tackle two opponents, especially if they were armed.”82 Rothfelder had thus hit Rebstock to forestall a dangerous attack. The interpretation of the homicide as one committed in rixa, together with the presumptions indicating that Rothfelder’s blow had been a reaction to a threat rather than an unprovoked attack on an uninvolved third party, raised sufficient doubts about Rothfelder’s alleged malicious intent. The use of a hooked saber could not therefore be interpreted according to Carpzov’s concept of a dolus indirectus since, as the authors summed up, “diese verwundung in rixa vorgangen” (“this wound was given during a brawl”) whose instigator been demonstrated above—who has been the instigator of the fight and the aggressor, one cannot impose the death penalty in such doubtful cases.” 79  Ibid., 2nd consilium: “dass die zween, allß der Kueffer und seel. Verstorbene Rebstockh, gegen peinlich Beklagten gestanden sein müeßten …” 80  Ibid.: “… daß der Verhaffte denn hieb darauf auß besorgender gefahr, ex terrore duorum adversariorum et alterutrius armati, gethan haben möchte …” 81  Ibid.: “… dahero dann für peinl. beclagten diese praesumption entstehet, daß derselbige kein aggressor wohl hat sein können …” (“… from this follows this presumption concerning the defendant: he could not have been the aggressor …”). 82  Ibid.: “Cum non sit verisimile, quod unus solus aggrediatur duos, vel alium socio armato stipatum …”

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could not be ascertained. In such doubtful cases, a poena ordinaria could not be imposed.83 Ius commune offered plenty of legitimising arguments to consilia writers who wished to support differing interpretations of homicides. This was especially easy if witness testimony made it difficult to establish a clear sequence of events. For Tübingen’s law professors, the concept of a homicidium in rixa trumped the concept of dolus indirectus and could thus exempt Rothfelder from the death penalty. Having accomplished this, the law professors went one step further by claiming that the edict of 1627 could be applied in Rothfelder’s case. Although the circumstances of his slaying might be considered serious enough to warrant the imposition of a peinliche poena extraordinaria, such as public whipping, there were other circumstances that prompted greater leniency and justified a sentence of five years’ military service. The letters of supplication, firstly, showed that the defendant had led a quiet and blameless life. One of the letters even came from the baron of Wolkenstein, who had interceded on behalf of his subject.84 The law professors therefore argued that Rothfelder’s youth and his good reputation supported the hope that “Besserung” (“correction”) could still be achieved.85 If the Oberräte had ordered the second consilium to placate their noble neighbor, then it served this purpose well. Again, it is interesting that apparently neither duke nor Oberräte had wished simply to override the first consilium by applying the edict of 1627 ex officio to this case. Instead, they had sought to legitimate leniency with ius commune arguments. The broadness of the ius commune concept of Excess and the various interpretative possibilities facilitated the strategic use by the Oberräte of legal experts in their quest for legal legitimation of their desired outcome. The case of Hans Hipp from 1667 illustrates another strategic use of judicial experts and of the malleability of ius commune rules of evidence. Here, the duke was at odds with both the Oberräte and Tübingen’s law professors and went through several legal consultations to outmaneuver their doubts and legitimize his desired outcome with legal expertise. The situation was tricky, since this homicide had the semblance of murder. The slaying had taken place in Tübingen during the night of December 1st, 1667. The victim was Hans Hauser, a rope-maker’s apprentice, who was accosted on his way home from a tavern by three masons’ apprentices. Although Hauser bid them good night as he passed them, they started to hit him, and one of them struck him with

83  Ibid. 84  See ibid. 85  See ibid.

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a heavy measuring stick. Hafner fell down and died a few hours later.86 The reasons behind the attack remain somewhat unclear; the extant case records include neither the Vogt’s report nor the witness testimony. The surviving consilia mention that the masons’ apprentices were drunk and engaging in general mischief-making, and that they had met Hafner previously in the tavern where they had tried to take his hat from him.87 After the homicide, the masons’ apprentices were arrested and examined in prison. Johan Hipp, one of the apprentices, became soon the main suspect because of his inconsistent statements. He varied between implicating and exculpating his companions, at times admitting and at others denying that he had struck Hafner with his measuring stick.88 During the trial, Tübingen’s law faculty was consulted on the question of whether he should be tortured.89 After a law professor sent a consilium that advocated torture, Hipp confessed after being shown the torture instruments in the “Malefizturm,” the “criminal tower.”90 But when a new trial day was set to judge his case, he revoked his confession and alleged, as he had done previously, that Johannes Buetsch, one of the other mason apprentices, had taken the measuring stick from him and struck Hafner with it. After repeated questions and several varied statements, Hafner finally admitted that he had struck Hafner, but had not thought “dass es so übel abgehen sollte” (“that it would end so badly”).91 Hipp’s defense counsel tried to make the best of this admission. He claimed that even though Hipp had struck Hafner, it did not follow that Hafner had necessarily died of the stroke, since Hipp “was a short and weak fellow, and it 86  See HstA A 209 Bü 1925, letter from the Oberräte to the duke from December 19. 87  See ibid., Tübingen consilium from February 12, 1668, p. 43. 88  See ibid., letter from the Oberräte to the duke from December 19. 89  See ibid. 90  The investigation showed that Hipp possessed a measuring stick and that he had carried it with him when Hafner was killed, although one of the various stories told by Lipp to the Vogt was that Hans Jacob Buetsch, one of the masons’ apprentices, had taken the measuring stick and thrown it at his leg after striking Hafner. Lipp insisted that he still had a wound on his leg, but a doctor who looked at it pronounced it to have originated from a scratch rather than from a thrown object. See Tübingen Consilium from Januar 24, 1668. Hipp had also shown somatic signs during his denial which, according to the law professors, indicated that he was hiding something: “… he trembled and sighed and moved his lips as if he wanted to confess …” (“… er jedoch gezittert und geseuffzet auch allermitlen mit dem mund gethan als wann er es sagen wollte …”), see ibid., p. 10. When Hipp finally confessed, he cried “bitterlich” (“bitterly”) and insisted that he had not meant to kill Hafner. See Tübingen consilium from February 12, 168, p. 5/5. When he revoked his confession, he told the judge that he had confessed out of terror and from his fear of torture. See ibid., p. 6/5. 91  See ibid.

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had been just one blow with a short instrument and it was not credible that it would break the casing of the brain.”92 The counsel claimed that it was likely that the fatal stroke had actually been dealt by someone else, which was all the more likely since Hipp had no previous history of being quarrelsome, nor did he hate or envy Hafner.93 Before the trial day closed, Hipp himself then asserted for a final time that he had not meant to kill Hafner.94 Tübingen was once more consulted for a consilium and a suggested verdict. The law professors first considered whether further torture was necessary or whether a verdict could be imposed on the basis of the evidence as it stood thus far. The consilia authors concluded that the evidence was indeed sufficient: despite Hipp’s varied statements and revocations, he had finally confessed to having struck Hafner. Since the wound had been lethal and the doctors found that it resulted definitively from Hipp’s measuring stick, “there was no doubt that the defendant had committed this manslaughter.”95 Their interpretation of the slayer’s intent was based mainly on the argument that the measuring stick could be considered a lethal weapon. The authors argued that “jurists agreed that if someone intentionally hurt another with a lethal instrument and this person then died … this should be considered a homicide committed in dolus according to divine law, the ius Commune, the Carolina and common sense.”96 Although they did not refer to Carpzov, their reference to “jurists” at the beginning of this statement was most likely meant to include him and his concept of dolus indirectus. They also quoted the Old Testament to provide further legitimation.97 Since Hipp had struck Hafner without provocation, the law professors saw no reason not to impose the death penalty. As circumstances 92  See ibid., p. 8: “… denn peinlich beklagter ist kurtzer und schwacher kerl und hat nur ein Streich mit einem kurtzen Instrument, nicht glaublich, daß Hirnschalen dabei zerschellen kann …” 93  See ibid. 94  See ibid., p. 10. 95  See ibid., p. 17: “Als ist nunmehr einiger zweiffel nicht übrig daß nicht der peinlich Beklagte disen Todtschlag begangen habe.” 96  See ibid., p. 36: “Hier haben aber neben anderen mehr Rechtsgelehrten ir und allwegen darvor gehallten, daß wann immer vorsätzlich iemand, mit einem zum tödten bequemen instrument, zumahlen an gefahrlichen orthen deß leibs, verletzt, und derselbe darvon stirbt…. derselbe nach göttlichen, gemeinen kayserlichen und in peinlicher halsgerichtsordnung vorgeschribnen rechten, auch nach der gesunden vernunfft, pro dolose homicida zuehallten …” 97  See ibid., p. 37. They specifically quoted a passage from Moses 4, which declared that the death penalty could be imposed if the murder weapon was made of wood and capable of killing someone. A reference to Carpzov’s dolus indirectus can be found further on in the consilium; see p. 41, 46 and again p. 47.

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were especially grave, neither the defendant’s youth nor his good reputation, which the defendant had urged in his favor, could save him. In their summary of this consilium, the Oberräte agreed with the law professors and seconded their suggested verdict. In one of the rare instances of disagreement with his Oberräte, however, the duke responded that a second opinion should be requested from the university at Gießen, a city located in the Landgraviate of Hesse.98 The duke explained enigmatically that he wanted this second consilium “aus gewissen ursachen” (“because of specific reasons”).99 Although he did not go into further detail, the Oberräte mentioned in a later missive that several letters of supplication had reached the duke during the trial. Four guildmasters belonging to the masons’ guild had written to him, and there had also been a letter from the masons’ guild as a whole.100 It is likely that these letters, which probably vouched for Hipp’s good reputation and satisfactory work as a mason, had prompted the duke’s uneasiness at the sentence of death. Yet even if he was prepared to support a more lenient punishment, he did not want to exercise his prerogative of mercy without further legal consultation. He also took the step of requesting that Tübingen’s consilium was removed from the court records so that Gießen’s law professors would not be influenced by it.101 The Hessian professors at first prolonged proceedings. Unlike their colleagues from Tübingen, they did not regard Hipp’s confession on his last trial day as sufficient proof. They argued that Hipp’s statements were too varied on the whole and cited ius commune jurists who alleged that a defendant who withdrew his confession given under torture should be tortured again if the circumstances of his homicide gravely implicated him. The consilium did not end with a verdict suggestion, and the law professors suggested instead that Hipp should be led to the Malefizturm once more, this time to be tortured rather than merely to be shown the instruments.102 The Oberräte and the local judge complied with this request. Following torture, Hipp did not retract the confession that he had given earlier.103 Gießen’s law faculty subsequently sent a second consilium with an attached verdict. The 98  We do not learn from the records why Gießen was chosen. More often, second consilia were requested from Strasbourg and Heidelberg. 99  Ibid., ducal note from February 21, 1668 (added to letter from the Oberräte to the duke from February 17, 1668). 100  See ibid., letter from the Oberräte to the duke from April 21, 1668. 101  The second consilium was indeed removed; the first consilium was, however, included in the trial records sent to the Gießen law faculty. See ibid., consilium Gießen. 102  See ibid., consilium out of Gießen from March 15, 1668. 103  See ibid., letter from the Oberräte to the duke from April 21, 1668.

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authors did not justify their decision in great detail. After a lengthy exposition that a defendant could not be convicted of the death penalty without proof of a malicious intent to kill, the law professors briefly stated that Hipp had lacked such an intent because he had struck Hafner with a tool that was not made for the purpose of killing and because he had been “loaded with wine” at the time of the homicide.104 The author thus regarded the measuring stick in a different light to that in which Tübingen’s professors had seen it. Whether tools should be considered lethal was a question of debate among jurists. Although he did not mention this passage specifically, it is likely that the author from Gießen had in mind Hadrian’s distinction between weapons such as “pots and pans,” which did not point towards an animus occidendi, and weapons such as swords and knives, which did. As we have seen earlier in the chapter, there were differing interpretations of this passage by ius commune jurists; Carpzov, for example, referred to a verdict that had imposed the death penalty on a slayer who had killed his victim with a hammer.105 Since none of these interpretations was binding, the author of the Gießen consilium was free to ignore them and to consider the measuring stick a non-lethal tool without further discussion. He could also ignore the biblical passage quoted extensively by the author from Tübingen, which maintained that a fatal stroke with a piece of wood should be punished with the death penalty.106 Once Gießen’s lawyer had defined the measuring stick as a non-lethal weapon, he could also dispense with Carpzov’s dolus indirectus. The argument that Hipp “had been loaded with wine,” which established a claim of diminished intent in the consilium from Gießen, had also been ignored completely by Tübingen’s professors. In the Gießen consilium, it provided an additional justification for a poena extraordinaria. The author suggested that Hipp should either be condemned to work ad opera publica for a time or be exiled from Württemberg.107 Both punishments were bürgerliche punishments.

104  See ibid., “… durch ein zum Todschlag nicht destriciertem Instrument und von einem mit wein beladenem Menschen.” This brief exposition is an example of the variations possible in the structure of a consilium. Although it was customary to back every assertion with quotations, there was no prescription that obligated law professors to do so in every instance. 105  See Oehler, Practica, p. 29 (pars 1, quaestio 6, no. 16). 106  References to the Bible were on the whole rare in consilia concerned with manslaughter, and their strictness was more frequently used to back up arguments in consilia dealing with murder and leading to the death penalty. 107  See ibid. This reference to lead was further confirmation of the stick’s lethal effect; according to Roman law, weapons made from iron prompted judges especially to presume an animus occidendi.

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It was now the task of the Oberräte to ponder the results of the various consilia and present their own conclusions to the duke. The Oberräte reiterated that they shared Tübingen’s interpretation of the measuring stick and argued that it was an instrument “ad occidendi satis” (“sufficiently lethal”) and moreover molded with lead.108 They considered the arguments from Tübingen therefore “stärker” (“stronger”) and reaffirmed their previous opinion that Hipp should be sentenced to death, which meant that the various letters of supplication should be ignored.109 The duke nevertheless waited before he responded to these suggestions. He was, apparently, dissatisfied with their recommendation of the death penalty and asked other experts for their opinions, thus bypassing his Oberräte. He consulted two members of his secret council, the “geheimer Rat”, a special advisory body that had been founded in the middle of the century and that reported to the duke only.110 Most of its members were also trained jurists. The duke had already consulted them in this matter earlier, as shown by a letter from Johann Ulrich Zeller, a member of the council, written on 23 March.111 This showed that the duke had elicited his opinion regarding the first consilium from Gießen’s law faculty, and that Zeller had agreed with its suggestion of torturing Hipp further. After the Oberräte rejected the second consilium from Gießen in favor of Tübingen’s verdict, the duke asked Zeller and one of his colleagues for another opinion. Both of them, however, sided with the Oberräte and the law professors from Tübingen, and also advocated the death penalty. Zeller and his colleague argued that the consultation of scripture was the safest way to decide a disagreement between ius commune jurists. This argument allowed the authors to support a death sentence, since their arguments now rested exclusively on biblical passages that advocated capital punishment for slayers.112 Just like Tübingen’s law professors, the authors referred to the biblical passage which stated that slayers who killed with wooden weapons deserved the death penalty.113 Privileging scripture allowed Zeller and his colleague to use the dramatic language typical for consilia judging murder: slayers 108  See ibid., letter of the Oberräte from April 10, 1668. 109  See ibid. 110  See Dieter Mertens, “Württemberg, p. 136. 111  For further information regarding Johann Zeller, see Gabriele Haug-Moritz, Die württembergische Ehrbarkeit. Annäherungen an eine bürgerliche Machtelite der Frühen Neuzeit (Sigmaringen, 2009), p. 36. 112  See Consilium from April 22nd. The author quoted the same passages that were referred to in the second consilium from Tübingen (Genesis 9, 6, Exodus, Leviticus 24, Psalm 17 31). 113  See ibid.

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had to be executed to forestall God’s vengeance, since God would punish those lands where “bloodguilt” had not been atoned.114 Despite receiving yet another expert opinion, this further confirmation of the Tübingen consilium must not have been to the duke’s liking, explaining why he sent for still another opinion, which arrived six days later. Unfortunately, this document is not signed, and so we do not know whether the author was an independent jurist or another member of the secret council. He may have been consulted previously, suggested by the fact that he titled his comment “Votum secundum,” and affirmed from the outset that he had already given his opinion and did not intend to deviate from it now. He considered the Tübingen consilium to be “zu hart” (“too harsh”), and he also felt that it deviated too much from ius commune teachings by justifying the poena ordinaria with praesumptiones rather than with clear evidence such as an unambiguous confession. In making these statements he too ignored Carpzov’s dolus indirectus, and argued that “animus occidendi” had not been proven, neither by witness testimony nor through conclusive presumptions.115 The homicide was therefore not “doloso” but “culposo,” i.e. lacking a malicious intent.116 He likened the slaying to a homicide committed in negligence, usually referred to as “culpa,” committed “quasi per lasciviam, als aus muothwillen beschehener streich” (“licentiously, a blow struck out of high spirits”).117 This jurist dismissed the references to the Bible in the consilia from Tübingen and the members of the secret council, since, as he argued, scripture also recognized a non-capital homicide committed in culpa. He also claimed that according to imperial law each death sentence had to be justified with the ius commune rather than with biblical passages. Instead of death, he suggested that Hipp be punished with a three-year long exile or with a period of forced labor that lasted for a year or for 18 months. The jurist concluded that the six months that Hipp had spent in prison should also be considered as a mitigating circumstance.118 Having received this opinion the duke was finally satisfied. Two days after the unknown jurist had sided with 114  See ibid. This is similar language to that which we have seen Tübingen’s law professors use in the case of the slayers Halder and Holzaster, discussed in Chapter 2. The authors also rejected the argument that Hipp had not meant to kill Hafner as irrelevant. If Hipp’s levity in striking Hafner would be considered a mitigating circumstance, many other slayers who deserved capital punishment could no longer be sentenced to die. 115  See ibid., commentary from April 28, 1668: “… quia non constat de animo occidendi, qui non probatur, nec per testes, nec praesumptionibusque urgentissimi.” 116  See ibid. 117  See ibid. 118  See ibid.: “… bevorab weil fast ein halbes jahr in carcere deteniert worden….”

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Gießen, he added a note to the endorsement of the Oberräte of the Tübingen consilium.119 In this note, the duke agreed with this jurist that Hipp should be spared from capital punishment, although he also decided that Hipp should not be punished with forced labor but instead with perpetual exile “damit alle ärgernuß auß dem weg geraeumt werde” (“so that all nuisance should have an end”). The duke thus opted for a compromise that saved Hipp’s life but which constituted at the same time a harsher punishment than the ones suggested by Gießen and the unknown jurist. The choice of a tougher sanction might have been a concession towards his Räte, yet the duke had also managed to meet the pleas of the mason’s guild and spared Hipp’s life. Although he could have overridden both the consilium from Tübingen and the advice of his Räte with his prerogative of mercy, he did not rest until he had collected sufficient legal expertise to legitimise his clement leanings. He had used the custom of consulting with experts to the utmost, involving the members of two advisory bodies, two law faculties, and an additional, unnamed jurist. In Chapter 1, we came across a situation in which disagreement arose between a duke inclined towards mercy and Oberräte who favored a harsh response. But where in the case of Hans Klett in 1621, Duke Johann Friedrich had tried to bypass legal proceedings with an ex officio pardon, in 1668 Duke Eberhard III made extensive use of judicial expertise to justify his decision. In concluding, one more case of double consultation is of interest, because it included the local court in the decision-making process. In 1658, Tübingen’s law professors evaluated Jacob Wössner’s homicide and suggested the lenient punishment of a low monetary fine. Wössner and his victim Keckh had been involved in a long-standing dispute over the rights to a stream that ran between their fields. On the evening of the homicide, Keckh had encountered Wössner in the process of redirecting the stream to water his crops. A dispute arose quickly: Wössner and Keckh exchanged insults, and these words soon led to violence. Wössner provoked Keckh by putting a rake in his hand, compelling him to undo his redirection of the stream. When Keckh applied the rake to this purpose, Wössner tried to take it from him. They fought over the instrument, but Wössner finally managed to wrestle it out of Keckh’s hand. Wössner then struck Keckh on his right temple with the rake. Keckh fell to the ground, but did not immediately die, lingering on for 21 days before expiring, despite the efforts of surgeons to save him.120

119  The note was dated April 30, 1668. 120  See HStA A 209 Bü 7, consilium from Tübingen (April 10, 1659) and consilium from Straßburg (May 19, 1659).

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While the fiscal accuser demanded the death penalty because Wössner was a “vero dolosus homicida” since he had killed Keckh with a rake, an instrument “ad necem apto” (“appropriate for killing”), Tübingen’s law professors argued that a malicious intent was lacking because it was not clear that Keckh had actually died from the wound.121 A medical report which followed the death asserted that Keckh had not followed his doctor’s instructions and had neglected to care for his wounds.122 Without an intent to kill, only a poena extraordinaria could be applied, and the consilia writers chose a monetary sanction for Wössner rather than public flogging or permanent exile, because they “considered his good reputation and his year-long satisfactory service to the local court and because his life had been irreproachable before this misdeed.” As they also stated, “There was good cause to hope that he would in future provide for his family in honest and honorable ways and would not offend governmental authorities.”123 The law professors had been mindful of gute policey and advocated the quick reintegration of a good subject like Wössner into his community. But the law professors had apparently overreached themselves in this instance through their efforts to take gute policey into account. In this instance, the Oberräte were not content. They wrote to the duke that the suggested sanction appeared to them “gar zu gering und zu gelindt” (“too small and too mild”).124 They therefore suggested that the duke either command the local judges to request a second consilium, or at least suggest it to them. The duke accepted their suggestion, although interestingly he left to the local judges the question of whether they wanted to obtain a second consilium.125 Apparently, in this case the duke found it difficult to negotiate considerations of gute policey with stricter legal principles of punishment. Since there appeared to be valid points on either side of the argument, he offered no decision himself and instead left it to local knowledge and local needs to decide how important Wössner’s quick reinstatement was for the good of the community. 121  See ibid., 122  See ibid., consilium from Tübingen, April 7, 1659, 123  See ibid., p. 18: “… weil wir des peinlich beklagten vitam anteactam sein guotes praedicat unnd dass er viel jahr ein gerichtsstell … ohne clag verwalltet, unnd ausserhalb dieser begangenen misshandlung ein ungevarlich leben und untadelichen wandel geführet angesehen, zuemahlen bei ihme guoter hoffnung ist, das er die seinige innskhuenfftig ehrlich und redtlich ernehren und gegen der vorgesetzten obrigkait sich aller gebuehr unverweisslich erzaigen werde, ist auch seiner mit der relegation in der urthel verschont worden.” 124  See ibid., letter of the Oberräte from April 14, 1659. 125  See ibid., ducal note from April 22, 1659, attached to the aforementioned letter.

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This offer nevertheless seems to have confused the local judges, whose response indicates that they were somewhat unsure what to make of this suggestion. They wrote that they had decided to adopt the “sichersten und gewissesten weg” (“the safest and surest course of action”) and thus requested a second consilium from the University of Strasbourg, apparently fearing that neglecting to do so might after all offend the duke and his Oberräte.126 Strasbourg’s law professors were presented with the trial records and Tübingen’s consilium. They were thus aware that Württemberg’s legal authorities had been dissatisfied with the mild verdict suggested by the first consilium. In their own evaluation of the homicide, the law professors accepted the mitigating circumstances that their colleagues in Tübingen and the counsel for the defense had enumerated. They argued, however, that while the homicide was “culpose” rather than “dolose,” the circumstances of the homicide did not justify the imposition of the most lenient poena extraordinaria.127 Instead, Wössner should be punished with “relegatio”, that is, exile. The authors chose ius commune quotations that justified their choice of punishment. They referred, for example, to Carpzov and argued that Wössner had committed a severe form of “culpa,” a so-called “culpa lata”, because he should have known that a blow to the head with a rake could have been deadly.128 They also quoted several ius commune jurists who advocated that if there was doubt about the wound’s lethality, the slayer should at least be punished with exile.129 The authors subsequently addressed directly the circumstances that had been considered of prime importance in Tübingen: Wössner’s good reputation. They argued that “even though the doctors from Tübingen were moved so much by the fact that the defendant had lived an honest life and had been a member of the local court that it led them to suggest a monetary fine, in our own opinion, which is based on the laws, these circumstances are insufficient to justify such mitigation.”130 The professors thus recommended that Wössner be banished from Württemberg for five years.131 126  See ibid., letter from the local court to the Oberräte, May 21, 1659. 127  See ibid., consilium from Strasbourg, May 19, 1659. 128  See ibid. 129  See ibid. 130  See ibid., p. 45: “Und obwohl die Herren Doctores Tübingenses den umbständt das namblich der verhafftete das gericht besessen unnd sonsten im übrigen seinem geführten leben sich bürgerlich gehalten: so weitt bewegt, dass sie die sach nun auff eine muletam pecuniarium gestellet. So seind wir doch daran in rechter fundierter meinung das solchern umbstandt zuo dergleichen millterung der poen mitt nichten sufficient seÿ.” 131  See ibid., p. 46.

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The Oberräte were content with this consilium and wrote to the duke that they “thought it better supported than the consilium from Tübingen.”132 The duke, however, once again offered the local judges the choice of verdict.133 The judges voted to accept the first consilium, thus favoring a more lenient punishment. However, the second consilium had apparently influenced them sufficiently to sharpen the sentence suggested by the first consilium. They thus ruled that Wössner should remain under arrest until he had been able to pay his fine, although after repeated supplications from his wife and children, the judges asked the Oberräte whether Wössner could be freed immediately. Both duke and Oberräte agreed to this request.134 This case shows how gute policey and judicial strictness had been negotiated at several levels, encompassing the duke, the Oberräte and the local court. The process of consulting a second time gave proceedings the semblance of judicial strictness as well as of legal objectivity, but also offered a space for local officials to partake in the decision-making process. While the ducal suggestion that they could request a second consilium had inclined them at first towards a harsher course, they were later allowed to correct their judgment in favor of clemency. Throughout all of this, the repeated consultation had prolonged the judicial process, lengthening Wössner’s time in jail and thus demonstrating the fact of ducal judicial authority, even if the final decisions were influenced by clemency and reasons of gute policey. Second consilia were an important tool to solve contradictory concepts that arose during the negotiation between gute policey and ius commune principles. Since legal precepts offered much room for maneuver, second assessments could be used strategically by duke and Oberräte, as the examples discussed above show. These cases also underscore how important expert legitimation had become to the administration of criminal justice. Yet lawyers were not the only experts whose opinions had acquired weight. The development of criminal justice administration in early modern Württemberg brought another group of experts into the judicial limelight: medical men. Medical inquests had been legally required in Württemberg since the mid-sixteenth century, which added new legal parameters to the judgment of homicide—namely, forensic standards concerning the lethality of a wound, but also new administrative regulations that stipulated when medical testimony was valid evidence. 132  Ibid., letter from the Oberräte to the duke, 25 May, 1659: “… finden auch selbiges mehrers alß der Juristen Facultät zu Tübingen Consilium fundirt.” 133  See ibid., ducal order from May 30, 1659, attached to the aforementioned letter. 134  See ibid., letter from the Oberräte from June 14, 1659 and the attached ducal order from June 24, 1659.

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But both forensic standards and administrative rules could be handled flexibly in legal practice and could open loopholes for the defense rather than contribute towards conclusive judgments. Ius commune rules could prove supple when handled by jurists; medical evidence had a similar potential for malleability in the hands of lawyers or local officials. The following section discusses cases where jurists contested the evidence of the inquest record in order to justify their evaluation of a slayer’s intent.

Analysing Corpses: The Role of Medical Inquests in Homicide Trials

The victim’s corpse had constituted one of the most important forms of evidence in homicide trials since the Middle Ages. In cases where the slayer’s identity was unknown, the famous medieval Bahrprobe put the corpse in the center of the judicial investigation, whereby the presence of the slayer was thought to cause it to begin bleeding.135 Corpses sometimes also “acted” as witnesses or in place of an accuser in medieval trials via the so-called “dead man’s accusation”, which required the presence of the corpse in court.136 In contrast with this “active” function, in early modern trials the role of the corpse was passive. The purpose of the medical inquest was to establish whether the wound which the victim had received by the slayer’s hand had been lethal. The corpse thus became the locus for the projection of medical knowledge as surgeons retraced the slayer’s actions in the wounds and gashes that marked the body. The inquest also opened a door to the slayer’s mind, since a lethal wound was a strong presumption of an animus occidendi. Instructions for carrying out medical inquests were laid down in the Carolina. Art. 149 required the presence of at least one or more Wundärzte 135  There are famous instances of the use of the Bahrprobe in medieval literature. Siegfried’s bleeding corpse, which convinced Kriemhild that she was right in suspecting Hagen, is only one of the better known of such episodes. But the Bahrprobe did not only occur in the fictional realm; while rare, there are instances of its use, even in early modern Württemberg. In 1586 began the murder trial of a peasant and his maid who had plotted the death of the peasant’s wife. According to this consilium, the Bahrprobe provided evidence that the local officials had arrested the right people. See also Bettina Bildhauer, Medieval Blood (Cardiff, 2006), p. 41. 136  See Heinrich Brunner, “Die Klage mit dem toten Mann und die Klage mit der toten Hand,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, vol. 31, Heft 1 (1910), 235–252. The “accusation with the dead hand” could take the place of the “accusation with the dead man,” requiring only the presence of the dead man’s hand or of his fingers.

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(“surgeons”) who analyzed both external and internal injuries and routinely performed dissections. The inquest also took place in the presence of the judge, the court scribe and two additional members of the local court. The results of the investigation were to be laid down in an inquest record.137 In their Policeyordnungen, Württemberg dukes tightened the Carolina’s provisions further. As far as medical witnesses were concerned, Württemberg ordinances demanded not only the presence of one or two Barbiere (“barbers”) or Chirurgi (“surgeons”, a term used interchangeably with Wundarzt), but also that of the local physician, the so-called physicus.138 Instead of a Barbier, a “Bader” could also be present at an inquest. The differentiation between the so-called Bader, Barbiere and Wundärzte was not always clear-cut. These professions were organized within the same guild and its members were allowed to perform venesection and surgery, although Bader and Barbiere mostly performed minor surgical operations.139 In contrast to these Handwerkschirugen (“artisan surgeons”), a term used by historian Sabine Sanders to refer summarily to Barbiere, Bader and Wundärzte, the physicus was not a member of an artisan guild. Physici had studied medicine at a university and were employed by local authorities. In addition to practising medicine, they assumed the role of overseer of health concerns and medical practice in general within a city or an administrative district.140 Physici did not perform surgical operations, but rather concentrated on internal medicine.141 Württemberg rules regarding medical inquests were binding; without a properly conducted inquest, legally valid proof of the wound’s lethality did not exist. The poena ordinaria could

137  See Kaufmann, p. 98. 138  See Reyscher, Vollständige, historisch und kritisch bearbeitete Sammlung, vol. VI, p. 6, ordinance from January 10, 1656. 139  See also Robert Jütte, Ärzte, Heiler und Patienten: Medizinischer Alltag in der frühen Neuzeit (Munich and Zurich, 1991), p. 22. As their professional description indicated, barbers also cut hair and shaved beards, and Bader operated Badstuben (“bathhouses”). See Sabine Sanders, Handwerkschirurgen. Sozialgeschichte einer verdrängten Berufsgruppe (Göttingen, 1989) for a discussion of the hierarchy among Handwerkschirurgen and the different medical tasks they were allowed to perform, e.g. pp. 56, 219. For a discussion of the social status of Barbiere, Bader and surgeons, see Robert Jütte, “Bader, Barbiere und Hebammen. Heilkundige als Randgruppen?” in Bernd-Ulrich Hergemöller, ed., Randgruppen in der spätmittelalterlichen Gesellschaft. Ein Hand- und Studienbuch (Warendorf, 1994), pp. 89–120. 140  See Sander, Handwerkschirurgen, p. 37, and Mary Lindemann, Health and Healing in Eighteenth-Century Germany (Baltimore and London, 1996), p. 72. 141  See Sander, Handwerkchirurgen, p. 41.

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not be imposed in such a case, even if other evidence pointed towards a slayer’s animus occidendi.142 Since the records of medical inquests constituted crucial evidence, they were important points of reference during homicide trials. Fiscal accusers often utilized the inquest’s findings in their opening statements in order to justify their plea for a harsh punishment. During the trial of Jakob Dettinger in 1678, for instance, the fiscal accuser drew on the record of the medical inquest when he claimed that Dettinger’s lethal blow “had corresponded to his bloodthirsty intent…. and had injured the right side of the head and the os frontis in so hard and so dangerous a manner that he (the victim) died four days afterwards wretchedly and without regaining consciousness“.143 Like the man killed by Dettinger, many homicide victims lingered after their attacker’s assault.144 This time of illness and ailment was a liminal phase. Much could go wrong: a doctor might prescribe the wrong treatment, or arrive too late, or the patient might neglect to take his medicine or contract an infection that hastened death. If death resulted from causes other than the wound the victim had received during the fight with the defendant, the latter could not be punished with the poena ordinaria. In a case from 1624, for example, the lawyers recommended the poena extraordinaria because the attending Barbier had testified at the medical inquest that the victim’s wound had not been lethal to begin with, but had only become so when the patient had taken “unordentliche mittel” (“inappropriate medication”) and had not taken care of himself.145 Another defendant could not be punished harshly because the medical witness testified at the inquest that the victim had hastened his own death by an unhealthy diet.146 The claim that a wound had not been lethal therefore offered itself as a defensive strategy in cases in which the victim had not died immediately. Such arguments already appear in sixteenth-century letters written by slayers requesting permission to settle their homicides by agreement. Sonder 142  See Reyscher, Vollständige, historisch und kritisch bearbeitete Sammlung, vol. VI, p. 7, 1656. 143  HStA A 309 Bü 13, Trial record, fol. 33: “… bis ihm ein streich nach seinem blutgierigen willen geraten welcher an das haupt auf die rechte seiten und das os frontis so hart und gefährlich angegangen, dass er…. des 4. Tages gantz sinn und vernunft los, elend und erbärmlich dahin geschieden …” 144  See also Gerd Schwerhoff, “Criminalized Violence and the Process of Civilisation: a reappraisal,” Crime, Histoire & Societes/Crime, History & Societies 6 (2002), 18. 145  See HStA A 209 Bü 462, 1624, consilium from December 8, 1624. 146  See HstA A 209 Bü 1466, 1656, consilium from June 21, 1656. The Barbiere complained that he had contributed to his illness by drinking cold milk and by eating apples, pears, peaches and plums in immoderate amounts.

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Gonzenhauser who fled the duchy in 1558 and wrote a letter to the duke to plead for mercy asserted that the wound he dealt his victim had not been mortal; rather, the victim died because he neglected to care for himself. Instead of resting and following the instructions of his doctor, as became a wounded man, Felix had run home, shouting and acting wildly, “das weib und seine stiffkinder alles zum haus hinaus geschlagen” (“beating wife and stepchildren out of the house”).147 Even then he did not go to bed, but went into the stable to sleep in the hay. With such inappropriate behavior he had brought about his own death during the night.148 In 1553, Ludwig Heil wrote in his own letter that the wound Hans Wagner had received by his hands had not been a lethal one since it had not touched Wagner’s brain, and that Wagner would still be alive if he had not neglected to have it treated. In the night following the fight, Wagner had secretly left his sickbed at a friend’s house to visit his young wife. “It follows without doubt,” Heil concluded, “that from this the powerful hand of God touched him on account of his negligence, whence he died.”149 In seventeenthcentury trials, defense counsel used similar strategies to strengthen their claim that the defendant had not meant to kill his victim. In 1648, the defense counsel of Hans Schmollinger alleged that the wound he had dealt his victim had not been lethal as such. But his victim “had neglected himself and failed to visit a Barbier or a Bader,” and “had not kept to his bed and had sat in the sun and pursued his trade.”150 In a case from 1655, the defense counsel made his own attempt at forensic diagnosis. He argued that the wound in question had not been lethal, and that death had resulted from other causes. After the victim had received a blow 147  HstA A 209 Bü 244, letter from Sonder Gonzenhauser to the duke from 1558. 148  Ibid.: “… und volgends haim in sein behausung gefiert worden, er von stundan ein ungestuembe greuwlige weis angefangen, das weib und seine stiffkinder alles zum haus hinaus geschlagen, weder nachparn noch niemands umb sich leyden auch in dhein beth nit gewelt, sonder sich in der hew gelegt, und alls es nacht zwischen ains und zwayen, ist gedachter Michel Felix in der scheuren (laider got erbarms) tods verschiden.” Unfortunately, the testimony of the medical witness at the inquest is not extant in this case. 149  HstA A 209 Bü 243: letter from Ludwig Heil to the duke from 1553: “… darauf dan one ainigen zweifell ervolgt, das in die gewaltigk hannd gottes umb seines misshaltens willen beruert, unnd dardurch mit todt abgangen.” At the medical inquest, the attending Barbiere were likewise sceptical that the wound had been mortal. 150  HStA A 209 Bü 1227: “… sich selbsten negligiert in deme er anfänglich weder Barbierer noch Bader … gebrauchet … nicht zu Bett gelegen, seige in der Sonnen gesessen und seiner [I could not clearly decipher the next word but assume it to be “Handwerck”, therefore the translation “trade” above] … nachgangen …” (these arguments of the defense counsel are summarized in the consilium from November 1648).

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on the head from the defendant, he did not take good care of himself, but instead, “went home and drank wine, as he customarily did. He thus heated his body up, and he became very much enraged, all of which caused an attack of the gout, an illness from which he had been suffering for a while, which attack caused his death.”151 Here, the defense counsel had clearly exaggerated statements in the medical inquest. Referring to the testimony of physicus and chirurgi, the law professors stated in their consilium that the defendant’s blow had caused internal bleeding, which may have caused an attack of gout, but that death occurred once the blood “zum herzen getrungen” (“had reached the heart”).152 According to the inquest record, the blow had been lethal, and the medical witnesses had not mentioned alcohol or rage as aggravating factors. The defense counsel had used elements from the inquest record combined with details about the victim’s habits which he may have learned from the witness testimony and added to his own medical diagnosis. His argument that overheating of the body due to alcohol and rage would cause illness might have been inspired by Galenic-Hippocratic concepts of the bodily humours. Medical witnesses at the inquest were not necessarily those who had attended the patient, meaning that a defense counsel’s independent research might uncover facts unknown to them. In the aforementioned case, however, the defense counsel’s speculations were not considered by the law professors, although there were certain other circumstances which prompted them to judge a slaying leniently and therefore to impose a mild monetary sanction.153 In a case from 1683, the defense counsel also contested the inquest’s findings that the victim’s wound had been lethal. He argued that medical treatment had been deficient because the bleeding of the wound had not been stilled immediately. The law professors did not use this argument, but they also doubted the

151  Universitätsarchiv Tübingen 84/10, p. 601: “… darauf er abgeleibte seiner gewohnheit nach angefangen wein und…. [illegible, probably a word referring to a different alcoholic drink] zutrinken, den Leib erhitzt, sich sehr erzürnt, wordurch er seine alte vorige Kranckheit namblich die Gichter bekommen; und daran gestorben …” It was apparently not uncommon overall to challenge the treatment of Barbiere, Bader or Wundärzte. In an ordinance from 1663, duke and Oberräte regulated “Rechtsstreitigkeiten zwischen Ärzten und den von ihnen verwahrlosten Kranken” (“litigation between doctors and patients that had been neglected by them”). The edict particularly addressed the medical treatment of Handwerkschirurgen; Reyscher, Vollständige, historisch und kritisch bearbeitete Sammlung, vol. VI, p. 42. 152  Universitätsarchiv Tübingen 84/10, p. 602. 153  See ibid., p. 603.

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validity of the medical witnesses’ findings, since the testimony of the attending barbers differed slightly with regard to the location of the wound.154 A case from 1683 involving a certain Josef Leßelberger shows how law professors and Oberräte might also be willing to accept medical speculations put forward by defense counsel.155 In this instance, considerations of gute policey inclined them towards leniency, and even though the circumstances of the slaying were grave, the defense counsel’s attempt at forensic diagnosis offered convenient arguments that helped legitimate a milder response to the slayer. The counsel’s arguments challenged the interpretation of the medical witnesses by claiming a better medical knowledge for himself that was based on academic research. The case underscores that causes of death could be interpreted differently and that there were often multiple ways of reading injuries. It also shows that although the introduction of medical witnesses was meant to make the process of finding a verdict more precise, it could also create confusion rather than yield hard and fast evidence. Josef Leßelberger from Aichelbach had killed Bartolomus Schreiber, a soldier. Both had attended a public dance in a tavern. At one point, Leßelberger picked up the epee of one of his friends and struck the floor with it. Witnesses agreed that Leßelberger had not meant to threaten Schreiber, but had done so “aus lustigkeit” (“for fun”) and because he been a little tipsy.156 Schreiber, however, felt provoked by the gesture and drew his own epee to attack. Leßelberger fled with the friend who had lent him the weapon, but Schreiber followed them in hot pursuit. A few bystanders intercepted Schreiber, however, and pulled him inside a shed. Leßelberger then went back into the tavern and exchanged his friend’s epee for a long stick. Running back towards the shed containing Schreiber, he hit him three times on the head with the stick. Schreiber then walked back to the tavern where he lay down on a sofa, complaining about pains in his stomach, and died in the early morning hours, in spite of the efforts of an attending barber-surgeon who performed a venesection on the patient.157 Leßelberger had thus gravely violated the requirements of selfdefense: although he had been pursued by Schreiber holding his drawn epee, Leßelberger had been out of danger when he struck Schreiber.

154  See HStA A 209 Bü 1237, consilium, May 24, 1683. 155  The original trial records are not extant in this case, but the arguments of the defense counsel are summarized in detail in the surviving consilium from Tübingen. 156  HstA A 209 Bü 106, Tübingen consilium from July 19, 1683. 157  See ibid.

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The record of the medical inquest summarized the conclusions of the attending medical witnesses. Present at the inquest had been two barber-surgeons and a physician.158 They found that the vena splenetica had burst—in other words, that Schreiber’s spleen had ruptured. The physician and the surgeons concluded that Leßelberger’s attack had caused this rupture of the vasorum spleneticorum and thus the victim’s demise.159 The counsel for the defense disputed these findings, however, alleging that the wound had not been lethal. In the first instance, he challenged the appropriateness of the medical care that the victim had received before his death. Schreiber had first been cared for by the hostess of the tavern, where he lay down on a sofa after being struck by Leßelberger. Feeling ill, he had asked for theriac, a popular universal remedy, of which the tavern hostess gave him a small dose.160 After this failed to ease his pain, the tavern hostess eventually called the barber-surgeon, who bled the patient. Both theriac and venesection were standard medical treatments which academic doctors were unlikely to regard as dangerous.161 During their testimony, surgeon and physician asserted that the administration of theriac had not 158  See ibid. It is likely that one of the barber-surgeons present had been the one who had attended Schreiber in his last hours, although the consilium does not mention this specifically. 159  See ibid. 160  See ibid., Tübingen consilium, fol. 7r-v. Theriac had served as a universal remedy since ancient times. Theriac consisted of a mixture of herbs, although true theriac also contained viper’s flesh and opium; see Christiane Fabbri, “Treating Medieval Plague: The Wonderful Virtues of Theriac,” Early Science and Medicine, vol. 12/3 (2007), 247–283. Most likely, the concoction that Schreiber took may not have been true theriac, but a local mixture. Since real theriac was costly, local apothecaries or quack doctors often sold cheap home-made mixtures that lacked the most expensive ingredients. It was not uncommon for victims, their relatives or those happening to be near, to try to treat wounds themselves or to wait before calling a doctor, even when the injuries were serious. When Jerg Müller was wounded by Hans Dettinger, his friends first thought that his symptoms might be the result of drunkenness and left his wounds undressed, not calling for a surgeon until 24 hours had elapsed; see HstA A 309 Bü 13, report of the medical inspection from August 16, 1678, fol. 5v. See also Robert Jütte, Krankheit und Gesundheit in der Frühen Neuzeit (Stuttgart 2013), p. 16, who mentions the importance of medical self-help as a strategy of first resort in early modern Germany. See also Jütte, Ärzte, Heiler und Patienten, p. 76. 161  Venesection was an important part of the medical practice of the Barbiere. The pallet used to catch the blood during venesection was the professional sign of the early modern surgeons; see Robert Jütte, “Norm und Praxis in der medikalen Kultur des Mittelalters und der frühen Neuzeit am Beispiel des Aderlasses,” in Norm und Praxis im Alltag des Mittelalters und der frühen Neuzeit, ed. Gerhard Jaritz (Vienna, 1997), p. 98. See also Jütte’s

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been harmful to the patient, and nor did Leßelberger’s defense counsel object to either remedy per se. Instead, he claimed to have specialized medical knowledge that rejected them as insufficient or unsuited to this case.162 He lamented that the physician had not been consulted and that the surgeon had not administered anything “tüchtigeres” (“more potent”) than venesection, thus questioning the surgeon’s ability to decide when his own medical knowledge reached its limits.163 Contrary to the opinions of physicians and surgeons asserted at the inquest, the counsel also argued also that the administration of theriac had actually been harmful in Leßelberger’s case. Theriac, he claimed, belonged to the socalled “sudorifera,” which were sweat-inducing and thus harmful in cases of interior bleeding.164 With his criticism of the medical treatment that Schreiber had received, the counsel aimed to undermine the medical experts’ claim that the wound struck by Leßelberger had been lethal, and implied instead that death may have been hastened by inappropriate treatments. The counsel thus chose a sort of arbiter role for himself in deciding which sort of medical knowledge should be applied to the case in question. His main challenge to the authority of the medical witnesses who had performed at the inquest rested on the interpretation of the wound, which led him to further questioning of their learning and their general medical knowledge. To make this point he quoted a passage from the inquest which referred to hematoma on the“membrum virile” (“virile member”) and the “gemächt” (“genitals”).165 The counsel pointed out that these two terms referred to the same thing, since “membrum virile” was just another term for genitals.166 He concluded that this slip “raised doubts whether the consulted surgeons had

reference to the importance of venesection for surgeons and barbers in Ärzte, Heiler und Patienten, p. 72. 162  See HstA A 209 Bü 106, Tübingen consilium. 163  See ibid. Tübingen consilium. In a consilium from 1687, the law professors had also criticized the fact that aside from venesection and the application of poultices of warm wine, nothing had been done for the victim before his death; see HstA A 209 Bü 395, legal consilium. The law professors did not intend to discredit the surgeon’s profession in general, however, but wrote with a “model practictioner” in mind, whose knowledge and treatment methods corresponded to their academic expectations. 164  HstA A 209 Bü 106, Tübingen consilium. For a discussion of venesection and theriac as universal remedies, see Jütte, Ärzte, Heiler und Patienten, pp. 79, 81. 165  HStA A 209 Bü 106, Tübingen consilium., fol. 9v: “daß beÿ dem verstorbenen sich das Gemächt, wie auch das membrium virile sehr von bluth underloffen befinden …” 166  Ibid.: “… quae duo tamen unum et idem …”

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adequate anatomical knowledge and understood enough about matters to render judgment in the question of lethality.”167 In a second step, the lawyer argued that the medical men had failed to conduct the investigation in as thorough a manner as required by learned medical literature. He quoted Gottfried Welsch, a professor of medicine at the University of Leipzig, who had written one of the first early modern German treatises on forensic medicine in 1660.168 Forensic medicine was on the rise as a subject of interest among academics during the seventeenth century and several treatises and handbooks were published on the subject, of which Gottfried Welsch’s work was a prominent example.169 With his reference to Welsch’s work, the defense counsel attempted to show his access to contemporary medical knowledge in order to characterise the surgeons’ own knowledge as provincial and patchy. Welsch, so the lawyer reasoned, demanded that a forensic inquest not only consider the nature and quality of the wounds but also “alias circumstantias” (“other circumstances”).170 This drew attention to the fact that the doctor had omitted to inquire about the circumstances which had preceded the fight between Leßelberger and Schreiber.171 The lawyer then argued that although Welsch agreed that a ruptured spleen could be fatal, the events leading up to the victim’s death as well as his behavior had rendered it unlikely that the defendant’s attack had caused the vessel to burst. At this point the lawyer then drew his own conclusions from the state of the corpse. Having dismantled the authority of the surgeons and the physician and presented himself as well-read in learned medical books, his own attempt at diagnosis reinterpreted part of the inquest’s description of the corpse. The inquest showed that the corpse had a bluish color from the neck 167  Ibid.: “… daher fast ein zweifel entsteht, ob auch die adhibierte chirurgi rei anatomicae recht kundig gewesen, dass sie die Sach sowohl verstanden, und super lethalitate judicium fällen könnn.” 168  See Hans-Joachim Mallach, Geschichte der gerichtlichen Medizin im deutschsprachigen Raum (Lübeck 1996), p. 20. 169  See Maren Lorenz, “Weil eine Weibsperson immer so viel Gewalt hat als erforderlich”. Sexualität und sexuelle Gewalt im medizinisch-juristischen Diskurs und seiner Praxis (17. bis Anfang des 20. Jahrhunderts), in Neue Geschichte der Sexualität. Beispiele aus Ostasien und Zentraleuropa 1700–2000, eds. Franz X. Eder and Sabine Frühstück (Vienna, 2000), p. 149. For a discussion of the development of forensic medicine at the university of Tübingen, see Mallach, Geschichte der gerichtlichen Medizin, p. 409; Wolfgang Nachtmann, Die gerichtsmedizinischen Gutachten der Tübinger Medizinischen Fakultät (1600–1923) (Tübingen, 1978), or Albert Röder, Medizinische Gutachtertätigkeit in den Jahren 1630–1660 in Frankfurt am Main (Frankfurt am Main, 1995), p. 5. 170  See HStA A 209 Bü 106, Tübingen consilium. 171  See ibid.

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to the calves.172 Such discoloring stemmed from a stroke, “as was well-known” (“bekanntermaßen”).173 Furthermore, if the blow with the stick had truly caused the spleen to rupture, then it also followed that the same hit should have broken the ribs protecting the spleen. These, however, were unhurt.174 Since surgeons and physician had thus neglected to consider these two circumstances, it was now up to the lawyer to analyze the events prior to the homicide in order to explain them and establish the cause of death. The counsel therefore explained that both defendant and victim had attended a public dance before the fight erupted. During this dance, he claimed, the victim had exerted himself by jumping and acting wildly, during which time his vessels could have suffered a rupture.175 Although the lawyer did not mention this explicitly, he probably meant to infer that the signs of a possible stroke he detected on the corpse could have also stemmed from energetic dancing. The counsel’s arguments were not based only on conjectures. Prior to the trial, he had also sent questions to be put to witnesses. These were the socalled “interregotaria ad articulos probatoriales” in response to the “articulos probatoriales.”176 In preparation for the examination of witnesses, both the fiscal accuser and the defense counsel presented their view of the case in the form of short successive statements or articles, the articulos probatoriales or articulos defensionales which were read to the witnesses. The witnesses had to agree or disagree with each article and also give a reason for their answer if they were able to do so. Before the witnesses were questioned, however, fiscal accuser and defense counsel had the opportunity to formulate questions (interrogatoria) concerning each article from their opponent that was put to the witnesses after they had agreed or disagreed with a particular item. One of these questions from the defense counsel’s interrogatoria put to the medical witnesses concerned the cause of death. At the inquest, physician and surgeons had testified that Leßelberger’s attack had ruptured Schreiber’s spleen. But the defense counsel asked whether a ruptured spleen could not also result from other causes apart from a blow.177 In response, the medical witnesses acknowledged that such rupture could result from “springen, fallen und 172  See ibid. 173  See ibid. 174  See ibid. 175  See ibid. 176   See also Schnabel-Schüle’s description of proceedings during criminal trials in Württemberg; Überwachen und Strafen, p. 100. 177  See HstA A 209 Bü 106. The surgeons had also responded to one of the fiscal accusers’ articulos probatoriales that a burst blood vessel could result from beatings, hits but also from a fall.

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dergleichen” (“jumps, falls and such things”), but not from “little jumps.178 Although the defense counsel had earlier attempted to dismantle the medical men’s authority, he referred to these admissions to support his conclusion. He argued that it was most probable that Schreiber’s spleen had ruptured due to “hefftigem tantzen und springen oder andrem vorgangenen Gewalt” (“wild dancing, jumping or other previous violence,”), since the physician had conceded that such ruptures might also be caused by exuberant jumping.179 For the counsel of the defense, it was therefore quite unlikely that Leßelberger’s blows with the stick had led to the victim’s death, as the medical attendants had asserted during the inquest. The inquest’s findings thus became just one of several possible scenarios, and the authority of barber-surgeons and physician counted only in so far as it corroborated the lawyer’s medical deductions. The lawyer’s careful dismantling of medical authority played into the hands of the law professors and the Oberräte who wished to impose a lenient punishment, even though Leßelberger’s case constituted a severe violation of the requirements of self-defense. The law professors and the Oberräte accepted the defense counsel’s view that it might be possible that Schreiber’s spleen had ruptured before he was hit by Leßelberger. They even found one more piece of evidence in the witness testimony to justify this argument, after one of the witnesses had mentioned that during his pursuit of Leßelberger, Schreiber had fallen over a pile of wood.180 Since the defense counsel had extracted from the surgeons the admission that a great fall could also cause the spleen to rupture, this evidence made it “zweiffelich,” (“doubtful”) whether the rupture of the spleen had really been caused by Leßelberger’s attack.181 This piece of information, the law professors argued, had not been available to the medical attendants during the inquest. Through his probing questions, the defense counsel had managed to render the sworn testimony of surgeon and doctor somewhat ambiguous. The interpretation of Schreiber’s wound as non-lethal formed an important part of the law professors’ justification of a mild punishment for Leßelberger, for which they suggested three months of forced labor.182 It seems likely that the law professors were disposed in Leßelberger’s favor from the outset, even though he had attacked Schreiber when no longer in

178  Ibid. 179  Ibid. 180  Ibid. 181  Ibid. 182  Ibid., fol. 37r.

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imminent danger.183 In the beginning of the consilium they had stressed that Leßelberger “had a good reputation and was God-fearing and pious; he had always behaved peacefully towards everyone, had never insulted anyone, avoided drunkenness, had loved his parents as it became a child and had always helped them with their work.”184 The Oberräte concurred with the law professors’ judgment, referring to the medical evidence as inconclusive and stressing Leßelberger’s good reputation.185 Leßelberger’s case illustrates that the defense counsel’s criticism of the medical care and of the subsequent inquest could be useful in cases where law professors and Oberräte were looking to justify mitigation. The case also points towards a potential tension between academic knowledge and the experience of local practitioners that the counsel tried to exploit. This tension played a role in other investigations. In the cases of the killers Michael Hof in 1668 and Samuel Gerber in 1687, to be discussed below, dissension arose through the involvement of various sorts of experts. Although Württemberg’s provisions required only the expertise of the local physicus and a Barbier, Bader or Wundarzt, professors of medicine from Tübingen’s university were sometimes also asked for their opinions. Resulting dissensions could challenge the legal validity of the medical inquest’s findings. The following discussion illustrates how academic knowledge could enter the evaluation of wounds in the form of medical consilia. Medical consilia carried great weight and would generally command a higher authority than the inquest record in the eyes of law professors or Oberräte. Sometimes, a divide could open between medical consilia and inquest records as professors of medicine brought to bear the weight of their own developing academic standards on the inquest’s findings. There were two aspects in which law professors were prone to find fault: the medical treatment that the victim had received before his death and that was recorded during the inquest, and the general style and content of the inquest record. Criticism of both areas tended to establish the superiority of their own professorial knowledge. 183  As a further justification the law professors argued that Leßelberger’s just anger at Schreiber’s provocation had motivated this violation of the requirement of self-defense; see ibid., e.g. fol. 35v–36v. 184  Ibid., fol. 2r: “… und sonst deß guten Pradicats, daß er GOTT [emphasis in text] herzlich gefürchtet, und geehrt, gegen mäniglich sich fromm fridfertig und verträglich aufgeführt, niemanden jemahlen im Geringsten belaidiget, die Trunckhenheit gemeidet, seine Eltern kindtlich geliebet, ihnen getrewlich in der Arbaith under die Arm gegriffen …” 185  See ibid., letter from the Oberräte to the Duke, July 24, 1683. The Duke agreed with the Oberräte, see ibid.

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Medical treatment was often administered by barber-surgeons. Universitytrained physicians, fewer in number and rarely close at hand as well as more costly, were consulted often only as a last resort. The practical knowledge of barber-surgeons, based on experience, was especially vulnerable to academic criticism.186 This did not necessarily mean that professors of medicine disregarded the work of barber-surgeons in general; rather, when asked to judge the work of individual practitioners, they tended to evaluate it according to academic criteria that barber-surgeons often had little chance of fulfilling. Although professors of medicine might lament the fact that a physician had not been consulted, they were just as liable to criticize academically-trained physicians alongside surgeons and scribes when they found fault with the inquest record. This clash between local practice and experience and rising academic standards for forensic medicine had consequences for the investigation of evidence in homicide cases. The application of these standards could prevent the inquest’s results from being legally valid in court. If professors of medicine found fault with inquest records, law professors tended to recommend a poena extraordinaria because they considered the medical evidence inconclusive. This happened in a case from 1687 which serves as a good example of a divide between academic standards and the expertise of local practitioners.187 After the trial of Samuel Gerber, killer of Martin Busch, the law professors wrote in their consilium that this deed would normally deserve the death penalty.188 Gerber had come across Busch as he was walking at night with his friends and attacked him without prior provocation. He might even have premeditated the assault. Witnesses testified that Gerber had announced previously that “he would not go home, but would do some mischief today.”189 He had also told his friend that he “wanted to look for the guy, he had long been his enemy and now he could get back at him.”190 He pursued Busch and his friends, not 186  Developing academic interest in medicine was often accompanied by a distrust of nonacademic medical practitioners. Professor Johannes Bohn argued, for example, in that since the Carolina only demanded the presence of barber-surgeons at an inquest, a doctor with academic credentials should always be present at a dissection in order to establish the lethality of wounds, see K. Händel, “Mitteldeutsche Gerichtsmediziner des ausgehenden 17. Und 18. Jahrhunderts—Biographische Notizen,” in Fortschritte der Rechtsmedizin, Festschrift für Georg Schmidt, eds. J.Barz, J. Bösche, H. Frohberg, H. Joachim, R. Käppner, R. Mattern (Berlin, Heidelberg, New York, 1983), p. 5. 187  See HstA A 209 Bü 395. 188  Ibid., summarized in the letter of the Oberräte to the duke, February 16, 1687. 189  Ibid.: “Er gehe nicht heim, er stelle heüt noch etwas an …” 190  Ibid.: “… seÿe dem burschen schon lang feind gewesen, iezo könne er ihn einmahl haben …”

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heeding his own friends’ entreaties to walk away quietly. When he had caught up with Busch, he struck him with a heavy wooden stick that he had picked up on the way. Busch fell to the ground and died twelve hours later.191 Despite these aggravating circumstances, the consilia authors argued that the death penalty could not be imposed because the inquest record had not produced conclusive proof that the wounds had been lethal; without such proof, the death penalty could not be applied.192 The law professors’ arguments contradicted the inquest’s findings. The attending barber-surgeons and the local physician had investigated the victim’s wounds and concluded that one of them had been lethal and thus the cause of death.193 The law professors could draw on an additional medical consilium, however. As they stated in the beginning of their own consilium, they had requested this kind of evaluation from their colleagues at the university’s department of medicine.194 The reason for this consultation is not clear. One possibility is that the defense counsel had raised doubts about the wound’s lethality during the trial, and that the law professors had responded by requesting a medical consilium. This is speculative, however, since the trial records are not extant, nor did the law professors summarize the arguments of fiscal accuser and defense counsel in their consilium. Their medical colleagues took a dim view of the inquest record in their own consilium. Their criticism remained diffuse, but revealed an academic prejudice in stating that the record was not precise or detailed enough, implying that it was not up to scientific academic standards. The medical professors first found fault with the medical witnesses’ description of the wounds and argued that a more thorough report of the nature and shape of the brain injuries would have contributed to a better understanding of the lethal symptoms. They lamented that the inquest record had only included a description of the wound itself, which could be found between skull and meninges, but that the record had omitted to explain whether additional damage could be seen “under Matre dura und vielleicht in ceribro ipso” (“underneath the meninges and perhaps in

191  See ibid. 192  See Tübingen consilium from February 9, 1687. 193  See ibid. 194  See ibid. See also the medical consilium from February 7, 1687, which begins with the phrase: “auf die von löblichen Juristen Fakultät unserem Collegio Medico nebenst der Insepctions relation eingeschickte Frag … wohl fundirtes judicium dahin zuertheilen …” [“… in order to respond with well grounded judgment to the lauded law faculty’s question sent to our medical college along with the report of the medical inquest …].

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the brain itself.”)195 In addition, the record had not sufficiently stated where the patient had felt pain and what kind of pain he had felt, all of which would have been of great import in a conscientiously prepared medical report.196 These complaints about deficiencies concerning the drafting of the record were not the only doubts that the professors cast on the work of local medical practitioners. They also expressed doubts about the attending surgeon’s medical treatment of the victim. Although they conceded that the defendant had died of the injury to his brain, they wrote that they could not say with certainty whether death had been inevitable. They wrote that a fatal outcome might have been prevented if special “chirurgische operationes” (“surgical operations”) had been performed and pointed out that recovery often occurred in similar cases “bei starckhen constitutionen und gesundtem viscerum, die sich nach aussag der Inspection hier gefunden” (“in cases where there was a strong constitution and healthy guts, which the inquest record had demonstrated in this case”).197 The authors of this consilium neither specified exactly which surgery should have been performed nor were they able to state with certainty that the wound had not been fatal. Unlike the legal consilia, the medical consilia in Württemberg homicide records were brief and rarely provide detailed explanation of the authors’ critique of, or comments on, the inquest record. The general doubts that the medical professors had cast both on the surgeon’s medical treatment of Martin Busch and on the conscientiousness of the medical witnesses at the inquest nevertheless sufficed to render the inquest record 195  See medical consilium. 196  This passage is not quite clear, but the translation I give above seems to me the most plausible. The sentence reads in the original: “Item das vel binis nur ware gemeldet worden, an welchem orth und über was für Wehe oder Schmertzen Casus sich sonderlich beklaget, welches beÿ gewissenhaftem ertheilendem judicio Medico ein großes momentum machet” (ibid.). The tricky words are the first part of the sentence: “Item das vel binis nur ware gemeldet worden …” Technically, these can also be translated as “Further, or second, it was only recorded that …”, which would imply that the medical professors lamented that the surgeons and the physicians had only recorded the patient’s aches and pains. In my opinion, it makes more sense to translate the passage as “Further, or second, if they had only recorded…,” thus implying that the surgeons and physician should have recorded the aches and pains. Without this interpretation the last part of the sentence, in which the medical professors indicate that a description of such pains was of great importance, makes little sense. Other cases can also be found in which academics complained about the careless wording of the inquest record; see, for example, a case from 1663 (HstA A 209 Bü 381, consilium from March 13, 1663). 197  See HStA A 209 Bü 395, medical consilium.

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inconclusive, and thus not admissible as evidence in the eyes of the law professors.198 Instead of the death penalty, they advocated that Gerber be sentenced to two years of military service.199 The case shows how the law professors could close ranks with their academic colleagues against local practitioners, even though the medical consilium had raised doubts without offering conclusive proof that the victim’s wound had not been lethal. A request for a medical consilium could also be part of a defense strategy employed by counsel, as can be seen in the trial of Michael Hof, accused of killing Georg Heßler in 1668. In his plea, the defense counsel argued that Hof’s blow to his victim had not been fatal and that Heßler’s death had resulted from deficient medical treatment. This was in contrast to the surgeons’ inquest, which stated that the stroke had caused internal bleeding and that this had brought about Heßler’s demise.200 The counsel’s defense had few other strong points. As the pre-trial investigation showed, Hof was known as a good and industrious smith, but he had a bad reputation in his community on account of his immoderate drinking and swearing and had also been punished several times for his involvement in brawls.201 The attack itself had taken place after Hof and Heßler had been drinking together in a tavern. Although Hof had been drinking heavily and cursing frequently, no quarrel had taken place between him and Heßler.202 Heßler went 198  It is important to note, however, that professors of medicine did not always question the inquest record. In a case from 1684, they agreed with the barber-surgeons that the wound had been lethal; see HstA A 209 Bü 1560, consilium from May 26, 1684. 199  This case is another instance of disagreement between Oberräte and law professors. Since the circumstances of the homicide were especially heinous, the Oberräte considered the punishment of military service as too lenient. They suggested to the duke that Gerber should be publicly whipped or at least be condemned to a period of forced labor in shackles; see ibid., letter from the Oberräte, February 16, 1687. (They suggested a third possibility which was, however, subsequently crossed out with a few strokes, namely that if military service should be the chosen punishment after all, that he should not enjoy equal status with the other soldiers but be treated as a “servus” (“servant”); see ibid.) The duke agreed with the Oberräte that military service was too lenient a sanction and ordered that Gerber suffer public whipping and permanent exile instead; ibid, ducal resolution from February 17, 1687. The duke did not change his mind after a letter of supplication from Gerber’s family arrived a few days later, in which his relatives pleaded that his sentence be commuted to forced labor according to the ducal edict from 1627; see ibid., ducal resolution from February 23, 1687, attached to a letter from the Oberräte from February 22, 1687. 200  See HStA A 209 Bü 1148, Tübingen consilium from April 7, 1668, fol. 3r. 201  These facts from the pretrial investigation (the record of which is not extant) are summarized in the legal consilium from Tübingen; see ibid., fol. 2r. 202  See ibid.

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home first, but Hof later caught up with him, because he was afraid of going home alone. He also insisted that Heßler walk more quickly so that they would get home sooner. This annoyed Heßler who asked him whether he was a fool to be in such a hurry.203 Heßler questioned Hof as to why he had not left the tavern with Glaser, who was apparently another comrade. He chided Hof about his previous cursing, telling him: “you are cursing the whole day and now you are too afraid to walk by yourself; are you afraid that the devil will lead you?”204 The Oberräte explained in a letter to the duke that Heßler had been referring to Hof’s known habit of invoking the devil while cursing.205 Heßler’s reproaches angered Hof, who lifted his hoe in response and hit him. Württemberg subjects were allowed to carry a hoe, but, as Tübingen’s professors asserted, it was also a tool that could prove lethal if wielded as a weapon. After Hof struck him with the hoe, Heßler fell to the ground. Although Hof then helped Heßler and led him to a nearby tavern, he cursed and swore in front of the tavern host that Heßler was a “Schelm” and a “Dieb” (a “good for nothing” and a “thief”) and that he wished he had killed him.206 The Oberräte noted reprovingly in their report to the duke that Hof had shown neither “rëwe” nor “leid” (“regret” nor “grief”).207 Heßler continued to be in pain but did not receive medical treatment until six days had elapsed. He died three weeks after the attack. The sudden attack on an unarmed man made it difficult to represent Hof as a good subject who deserved a lenient punishment, suggesting that the defense counsel’s demand for a medical consilium was made as a last resort. The fiscal accuser had demanded the death penalty and was, however, equally sure of his case and seconded this demand. In reaction to these requests, the law professors asked their medical colleagues for a consilium, and sent them the court records including the report of the inquest. The medical professors’ evaluation supported the defense counsel’s case. They responded to three questions that the law professors had put to them: whether the wound had been lethal, whether the symptoms resulting from the wounds could have been cured, and whether the attending doctors’ treatment had been deficient. The authors’ answers were brief. They merely stated that the wound had not been “in se et absolute lethalis” (“as such and absolutely lethal”) and that the patients’ symptoms might have been cured if he had received medical care sooner. For 203  See ibid. 204  Ibid., fol. 2r: “… dů schwerest den gantzen tag, darnach fürst dir so übel, das dů nicht allein gehen dörffst, fürchst der teüfel führ dich hin.” 205  See ibid, letter from the Oberräte to the duke from February 21, 1668. 206  Ibid. 207  Ibid., Letter from the Oberräte to the duke from April 13, 1668.

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the writers of the consilium it was self-evident that this lapse of six days before treatment was proof of insufficient medical care. In addition, they also wrote that it was possible that the patient might have neglected to care for himself properly, perhaps with respect to his “diaets und anderer Verhaltung halber” (“his diet and regarding other behavior”).208 This last statement was a conjecture, written in the subjunctive and lacking concrete examples or proof.209 The consilia writers also failed to give a specific reason for their claim that wound had not been “absolutely lethal,” or how it might have been cured. The writers’ prestige as learned professors of medicine sufficed, however, and the law professors stated in their own consilium that the authority of the medical consilium superseded that of the inquest record.210 At the same time, the law professors also tried to find similarities between inquest and consilium. They argued that if one “looked more closely” at the wording of the inquest, inquest and consilium were not irreconcilable.211 Although the record stated that stroke had caused internal bleeding which had, in turn, caused lethal symptoms, the record had not stated plainly that the wound had been lethal. The law professors concluded therefore that Hof had dealt Heßler a “gefährlicher streich” (“dangerous blow”) and that Heßler’s death had resulted from its consequences, but that the deed could not be considered a “todtschlag,” (“manslaughter”).212 Here, the law professors distinguished between manslaughter and grievous bodily harm with lethal consequences, a distinction not commonly found in consilia which customarily referred to such acts as homicides without dolus. It is also unclear whether the medical witnesses at the inquest had made this distinction, or whether rather different standards concerning formal requirements in the wording of inquests had enabled the law professors to interpret the inquest record so that it could be reconciled with the medical consilium. The law professors also used the ius commune to substantiate the medical profesors’ doubts about the wound’s lethality further. According to the “Rechtsgelehrten” (“learned jurists”), the authors argued, it was not commonly believed that a wound could be considered 208  Ibid., medical consilium from April 3, 1668. 209  The extant medical consilia also lack the frequent references to authoritative texts that characterized legal consilia. This was perhaps because there did not yet exist such a plethora of authoritative texts, or because standards for forensic consilia were still developing, or perhaps because of a tacit consensus which saw academics look down upon the opinions of those outside the university. 210  See HStA A 209 Bü 1148, legal consilium from April 7, 1668, fol. 11r. 211  Ibid, fol. 10v: “… wann dieselbe genauer angesehen wirdt …” (“… if the same was looked at more closely”) [“the same” referred to the inquest record]. 212  See ibid., fol. 12r.

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lethal if the patient had lived for 21 days.213 Hof’s victim, Georg Heßler, had lingered for exactly 21 days. The law professors did not explain that there was dissension among jurists on this point, showing another instance in which consilia authors represented their view of ius commune as authoritative while ignoring opposing theories. The law professors’ acceptance of the medical consilium thus substantiated their argument that Hof should be punished with a poena extraordinaria. The defense counsel’s strategy of focussing on medical uncertainty had worked. The case of Hof and Gerber also suggest the possibility of academic solidarity between professors of medicine and professors of law, making the latter more likely to accept their colleagues’ criticism of local practitioners outside the university.214 In Hof’s case, such criticism also justified a purely utilitarian approach in favor of a lenient verdict. Although the law professors stressed Hof’s bad reputation and especially his habit of immoderate drinking and cursing, they also enumerated points in his favor. Hof was, for instance, “a Württemberg citizen” and “had four poor children.”215 According to letters of supplications he was also known to pursue his “ehrliche Handwerk”, his “honest craft” to the satisfaction of his community.216 There was hope, therefore, that his character would improve and that he would be able to continue earn a living for his family in an honorable manner.217 Hof could thus benefit from the contents of the ducal edict issued in 1627, and the law professors suggested a year of forced labor as a punishment.218 The medical consilium had bolstered the law professors’ arguments against the poena ordinaria and in doing so legitimated pragmatic leniency. The defense counsel’s rejection of the record of the medical inquest had thereby played into the hands of law professors looking for reasons to exempt from the death penalty a defendant who had killed under dubious circumstances. In a case from 1688, the defense counsel of Samuel Thierer likewise challenged the medical inquest’s finding that the victim’s wound had been lethal. The counsel argued that he reserved the right to request a medical consilium by a “tapfern und gelehrten medico” (“brave and learned doctor”) to prove his 213  See ibid. 214  Some decades later, in 1707, the jurist Jacob Friedrich Ludovici stressed openly in his commentary on the Carolina that the opinion of Barbiere was doubtful; see Händel, Mitteldeutsche Gerichtsmediziner, p. 2. 215  HstA A 209 Bü 1148, legal consilium, fol. 14v. 216  Ibid. 217  See ibid. 218  See ibid.

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point.219 The fiscal accuser must have risen to this challenge, because, as the law professors later stated, a medical consilium had been requested by both parties. But in this case, too, the medical professors questioned the inquest’s findings. This was particularly easy in this instance, because the victim Hanold had died two days after Thierer had hit him on the head, without having received medical attendance. Yet the medical professors raised doubts rather than stated facts. They argued that the patient might have recovered, since recovery in such cases was possible, even though this could not be asserted “gewisse und ohngezweiffelt” (“for certain and without doubt”).220 The defense counsel’s strategy was successful, however, and their medical colleagues’ doubts sufficed to convince the law professors that a poena ordinaria could not be imposed.221 While medical consilia could contest the validity of an inquest, medical testimony was also rendered inconclusive if not all the necessary formalities had been observed. This could be the case, if, for example, fewer than all of the required witnesses had been present at the inquest where the attendance of one or two Barbiere, Bader or Wundärzte, a physician, the local court scribe, two members of the local court and the city scribe of the nearest town was necessary.222 It was, however, often impossible to implement these rules in practice, since it seems to have been difficult for local officials to organize the correct people to attend and record the inquest.223 In a case from 1675, the law professors argued in their consilium that the inquest record was invalid because the inquest had not taken place “coram scabinis et actuario” (“in front of members of the local court and the court scribe”).224 When the inquest was held for the victim of Hans Ott in 1678, the law professors argued that the inquest was invalid because a correct record “drawn up by a court scribe”, was necessary in order to establish whether the victim’s wound had been fatal, and no court scribe had been present to do so.225 To make matters worse, the local physician had also been absent, since he was out of town and travelling on the 219  See HstA A 209 Bü 1164, 1688, legal consilium from January 5, 1688. 220  See ibid., medical consilium from January 3, 1688. 221  See ibid., legal consilium from June 11, 1688. 222  See, for example, a case from 1652 where all these conditions were met; HstA A 209 Bü 1687. 223  See, for example, HstA A 209 Bü 381, 1663, consilium from March 13, 1663. 224  HStA A 209 Bü 926, consilium from November 8, 1675. The same absence was lamented in a case from 1665; see HstA A 209 BÜ 1724, from June 12, 1665. 225  HstA A 309 Bü 15, consilium from March 30, 1678: “… von einem actuario beschehener Auffzaichnung …” to make the “probatio corporis delicti” sufficient for a poena ordinaria.”

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day of the inquest.226 The regular presence of a physicus at an inquest might have been rendered difficult in general by the fact that the number of physici working in Württemberg was small overall.227 Similarly, in 1677, the law professors did not doubt the surgeon’s claim that the wound had resulted in the victim’s death “a few days” after the fight with the defendant.”228 Yet because the court scribe had not been present, they did not accept the document as evidence and exempted the defendant Hans Seitz from the poena ordinaria.229 Attendance was particularly meagre at an inquest in 1664: not only were all persons affiliated with the local court missing, but the city scribe and physician were also absent, leaving present only a single “Chÿrurgus.”230 Defense counsel could use these frequent formal omissions to puncture an accusation by challenging the judicial validity of the inquest record. The defense counsel of the slayer Press was quick to claim in 1674 that “the inquest had not been done correctly.”231 This could be a successful strategy and strengthened the case for a poena extraordinaria. This could also serve the law professors’ purpose if they were looking for additional reasons to justify a lenient punishment. In their consilium concerning Press, they accepted the defense counsel’s objection to the inquest, arguing that the defendant had acted in self-defense and should be acquitted, but “in case the accused had acted wrongly, this would be atoned for by his long stay in prison during the trial and it also has to be taken into account that there had also not been an inquest.”232 226  See ibid. 227  See Sander, Handwerkchirurgen, p. 43. 228  See HstA A 209 Bü 64, 1677, letter from the Oberräte from November 20. In this case, the Oberräte even used the fact that the medical inquest had been omitted altogether as a reason to waive the “expensive” peinliche trial and impose a sentence of three months of public labor ex officio. This was a rare instance of dispensation with a trial, but there were special circumstances in this case which had hindered the Vogt in conducting a timely pre-trial investigation. Seitz and the victim Benedict Eigenherr were soldiers stationed in the garrison at Asperg. Shortly after the homicide, part of their company had been ordered to march towards a different garrison so that several witnesses of the homicide could not be examined. In the bustle attending these troop movements, the commander of the Asperg garrison apparently forgot to order the medical inquest. 229  See ibid. 230  See HStA A 209 Bü 921, consilium, October 17, 1664. 231  See HStA A 209 Bü 784, consilium, October 26, 1674: “… die inspection nicht ordenlich fürgenommen …” 232  Ibid., summary of the consilium in a letter of the Oberräte, October 31, 1674: “… auch falls ihme etwas beÿ zuomessen wäre, er dises durch langwirige gefängnuos genuog gebüßet haben würdte, auoch bei dem entleibten cörper keine Inspection vorgenommen worden.” See also consilium, October 26, 1674.

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Governmental attitudes towards botched inquests may thus have been double-edged. On the one hand, these mistakes offered a convenient excuse or default option that justified mild practices of punishment within the legal parameters that the Oberräte wished to observe. On the other hand, invalid inquests also forced the Oberräte to allow exemptions from the poena ordinaria in grave cases. In 1677, the slayer Bernhard Feger was saved from the death penalty only because the medical inquest had not been held in accordance with Württemberg police ordinances.233 During the greater part of the seventeenth century, duke and Oberräte accepted invalid inquests as a reason for mitigation, but also issued admonitions to ensure a more diligent observation of Württemberg rules. Württemberg ordinances show complaints about the frequency of formal deficiencies in inquests.234 Trial records often also contain documents in which duke and Oberräte expressed their displeasure about an inquest that had been held incorrectly. One such instance is a case from 1661, in which the defendant Jakob Schweitzer could not be punished with the poena ordinaria because the inquest had not been conducted according to the rules of Württemberg’s ordinances, even though he had flagrantly killed his victim with an axe when this victim had tried to make peace between him and another disputant. In a letter to the duke, the Oberräte demanded that the local officials should be chided for this serious lapse.235 Another example where duke and Oberräte expressed their anger over a deficient inquest is the aforementioned case of Samuel Gerber from 1687. Here, the defense counsel had not only challenged the surgeons’ treatment of the victim, as we have seen, but had further argued that the record of the inquest was invalid because the city scribe had not attended it.236 The fiscal accuser had tried to forestall this argument by claiming that a substitute scribe named Georg Friedrich Fuss had been present, and therefore demanded that the judges find witnesses for his attendance and insert his name into the inquest record.237 As the law professors summarized in their consilium, however, 233  See HstA A 209 Bü 1299, consilium from February 6, 1678. 234  See for example Reyscher, Vollständige, historisch und kritisch bearbeitete Sammlung, vol. VI, pp. 6, 66 for a reiteration of such complaints. 235  See HstA A 209 Bü 1144, letter of the Oberräte from September 4, 1661. Another instance where the Oberräte complained about formal errors attending to the inquest is the case of Hans Seitz from 1677, where the duke and the Oberräte demanded that the local officials should be “sharply admonished” on account of their negligence; see HStA A 209 BÜ 64, letter from the Oberräte from November 20. 236  See HstA A 209 Bü 395. 237  See ibid, consilium from February 9, 1687: “… dass zwar der herr stadtschreiber nicht selbsten, jedoch in seinem Namen ein hergeschickter Scribent, Georg Friedrich Fuss bena-

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the fiscal accuser had not been able to prove the presence of this scribe.238 Since the inquest therefore proved invalid, the Oberräte wrote reprovingly to the duke that “such mistakes, whether they occur to help out the offenders, or happen out of ignorance or lack of conscientiousness, cannot be tolerated, because it is then impossible to impose the death penalty, no matter how dolose the circumstances which burdens the land with blood guilt.”239 The duke agreed and attached a response in which he noted the deficient observation of the rules concerning the inquest with “sonderbarem Mißfallen” (“with particular displeasure”) and requested the diligent and conscientious observance of the inquest rules in future.240 This was not the only instance in which the Oberräte lamented that their norms were not observed whilst accepting simultaneously the consequences of these infringements. In frequent edicts and commands to local officials, duke and Oberräte criticized the defective build and equipment of the city towers where defendants were imprisoned before and during their trials. These temporary prisons were often so uncomfortable that a defense counsel’s plea for a sentence reduction on account of the hardship the defendant had already suffered was frequently successful.241 Similarly, duke and Oberräte complained in their edicts that trials often took too long, because counsel prolonged proceedings hmet, sich dabey eingefunden. Auch zu dem Ende an den Malefizrichter in specie verlanget, über diesen Umbstandt das ermelter scribent der inspection mit beygewohnt sich zu Ingersheimb zu erkhundigen und auf war befindung den defectum Subscriptionis in der Inspectionsrelation noch ersetzen zu lassen …” (“… that even though the city scribe had not been there himself, Georg Friedrich Fuss, a scribe sent in his name, had appeared. He [the fiscal accuser] requested in particular that the judge send him to Ingersheim to investigate this circumstance—that said scribe had been present at the inquest—and if found true, to add the missing signatures …”). 238  See ibid.: “… es hat auch der fiscalische Herr Patron…. die Anwesenheit solches scribent nullatenus probirt…. so ist endtlich hierdurch dass man letzlich ex parte des fürstlichen Herrn Anwaldts hierauf nicht mehr geantwortet, desselben absentia haud obscure gestanden worden” (“… the fiscal accuser had not been able to prove the presence of this scribe … therefore because the fiscal accuser no longer answered to this [the request to prove the scribe’s attendance] he had thus plainly admitted his [the scribe’s] absence.”). 239  HStA A 209 Bü 395, letter from the Oberräte from February 16, 1687: “… dergleichen fehler, sie werden gleich dem Thäter außzuhelfen begangen, oder gehen aus ohnwissen oder uhnvorsichtigkeit vor, damal nicht zu dulden, dieweilen man so dann zur todesstraf, wie dolos auch sonst dz factum sein mag, nicht schreiten kann, sondern blůtschulden auf dz gantze Land laden můß.” 240  Ibid., attached ducal response from February 17, 1687. 241  See Reyscher, Vollständige, historisch und kritisch bearbeitete Sammlung, vol. V, p. 457, edict from 1653.

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unduly, which also lengthened the time that a defendant spent in prison.242 While the Oberräte lamented these facts, we can speculate that such prolonged imprisonment was perhaps not always unwelcome as a sort of counterbalance resulting from the pragmatic attitudes of the Oberräte. The frequent reiteration of norms underscored the governmental right to legislate such norms and recalled this ducal prerogative to the attention of subjects. At the same time, as we have seen throughout, government officials also accepted that the implementation of norms was a flexible process and depended much on communal participation and circumstances. The Oberräte might therefore accept and occasionally utilize the loopholes in the legal system while lamenting them in their edicts.243 It was, nevertheless, part of the dukes’ prerogative to change their attitude towards infringements of their own rules. While it seems to have been the case that until the early 1680s an incorrectly held medical inquest was considered a reason not to administer the poena ordinaria, there are a few cases between 1682 and 1700 in which the death penalty was nonetheless imposed. One of these concerns the punishment of Michael Kumel’s homicide in 1682, which I have already discussed briefly towards the end of the last chapter. Kumel was a bailiff who had killed the schoolteacher of his village before fleeing.244 He had been promised Geleit and a superfacto trial, but was nevertheless sentenced to death at the determination of the duke. The inquest of his victim’s corpse had not been performed correctly, since the court scribe had not been present. A medical consilium was requested from the university of Tübingen. Apparently, this consilium made up for the deficient inquest record. The consilium‘s assertion that the wound had been lethal was accepted as valid legal evidence “obschon die inspectio legaliter nicht eingenommen worden” (“even though the inquest was not conducted according to legal prescription”).245 Similarly, in a case from 1685, defendant Hans Jacob Widman was executed even though the two members of the local court required by Württemberg rules had been missing at the inquest.246 Both Kumel and Widman had killed their victims under 242  Such reiteration of particular edicts was common governmental practice; for a discussion, see Dinges, “Normsetzung als Praxis?”. 243  We can draw a parallel between the treatment of Württemberg regulations on the superfacto procedure, which were also often difficult for local officials to penetrate, and the requirements for holding an inquest, which, although less complicated to understand, often strained communal administrative capacities. 244  See HstA A 209 Bü 1157, consilium, August 26, 1682. 245  See ibid., letter from the Oberräte from September 1682. 246  See HstA A 209 Bü 693, Tübingen consilium from April 10, 1685.

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aggravating circumstances; Kumel had lain in wait for his victim, and Widman shot an unarmed mason in a tavern in response to the man’s questioning whether he knew how to shoot. The mason had been killed instantly, proving the wound’s lethality, even though “der inspection keine scabini beÿgewohnt.” (“… the court scribes had not been present at the inquest”).247 The aforementioned Jacob Schweitzer, who had killed under at least equally serious circumstances in 1666 by assaulting his peace-making victim with an axe, had been able to escape death. Further research has yet to determine whether the stricter attitude manifested in Widman’s and Kumel’s case was continued into the eighteenth century. In other cases during the last decades of the seventeenth century, an incorrectly held medical inquest continued to count as a mitigating circumstance. The extension and development of criminal procedure did not always influence legal practice in predictable ways. Expert legal and medical norms could be ambiguous, and procedural regulations were often difficult to implement. These uncertainties could benefit both defendants and government officials, who sought to negotiate rules of evidence and procedure with their pragmatic concepts of gute Policey. Legal actors could exploit and utilize the ambiguities inherent in the normative framework; the very indeterminateness of the complex web of norms and prescriptions facilitated the justification of mild practices of punishment. The Württemberg cases illustrate the ongoing negotiation patterns between local circumstances and normative prescriptions that are characteristic of early modern German criminal justice. In the territories of the empire, these negotiations typically took place within a jurisdictional framework strongly influenced by the ius commune. Yet we can also see similar patterns on the fringes of the empire where ius commune played a comparatively small role. The next chapter offers a view of bargaining processes in homicide cases from a different perspective by focussing on the settlement of manslaughter in late medieval and early modern Zurich.

247  Ibid. In 1695, the law professors also did not accept as a mitigating circumstance that the inquest had not been conducted correctly. This was a case, however, in which the victim had died immediately; see HstA A 209 Bü 1447, consilium from June 8, 1695.

CHAPTER 4

Accusations and Mediations: The Prosecution of Manslaughter in Zurich In 1621 the Zurchers Rudolf Hafner and Jagly Schnider were drinking wine outside the Swiss town of Schaffhausen when they met two Württemberg citizens. The Swabians addressed the Zurchers, asking them for a share of the wine. Apparently suspicious of their intentions, Hafner told them that he did not want to share the wine and continued: “wer weist, was ir fuer luet sind …” (“who knows what kind of people you are”).1 One of the Swabians retorted angrily “was geschneits dich was wir für leute seiend” (“it’s none of your fucking business what kind of people we are”).2 Enraged at this insult, Hafner retorted that they were “hundsschwaben” (“dog-Swabians”).3 The Swabian answered that if he and his friend were “hundsschwaben,” Hafner and his companions should be called “hundsfued” (“dog’s cunt”).4 Violence followed quickly, the ensuing fight leaving one of the Swabians, Caspar Eytinger, dead. While this case illustrates prevailing prejudices between Swabians and Swiss which occasionally fuelled disputes in the medieval and early modern period, the resolution that followed this violent encounter also points towards the shared Alamannic tradition of compensating the families of homicide victims.5 When the mayor of the Württemberg city of Urach heard of Eytinger’s death, he acknowledged Zurich’s right of jurisdiction over the case. He asked, however, that the city council ensure a settlement to compensate Eytinger’s widow. Zurich’s council members agreed to this request, and told the local Vogt to help negotiate an agreement between Rudolf Hafner and the Swabian relatives.6 1  StaZH A 17.2, 1621, unnumbered, letter of supplication from Rudolf Hafner to the council. 2  Ibid. 3  Ibid. 4  Ibid.: “… wan sye hundschaben siegind so seigind wir mit reverenter zu melden hundsfued …” 5  See, for example, Thomas A. Brady jr., German Histories in the Age of Reformations, 1400–1650 (Cambridge, 2009), p. 51. See also Rudolf Schloegl, Fabio Crivellari and Eva Wiebel, eds., Fremde Nachbarn. Schweizer und Schwaben im westlichen Bodenseeraum 1400–1800 (Constance, 2000) for further discussions of cultural interactions between Swiss and Swabians during the early modern period. 6  See ibid., record of agreement from August 1622.

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In Zurich, the official recognition of the claims of injured kin had a long tradition and continued to influence the procedure and punishment of manslaughter well into the seventeenth century. This chapter traces the merging of extrajudicial with official justice, and analyzes how this process shaped the treatment of manslaughter during the early modern period. As in Württemberg, Zurich’s council members increased their control and supervision of the extrajudicial interactions between slayers and injured kin from the late fifteenth century. Yet in Zurich, council members officially ceded a significant role to injured kin in the prosecution of homicide for a longer period than was the case in Württemberg. There, ius commune provided a framework which officially upstaged extrajudicial negotiations, even if these continued to influence proceedings behind the scenes. Unlike Württemberg, Zurich’s council did not formally consider Roman law in their criminal jurisdiction. Legal proceedings were not officially or directly based on the Carolina or other juridical literature, even if ius commune terms and concepts started to appear in judgments of the seventeenth century. As elsewhere, the story of the prosecution of manslaughter in Zurich was propelled by the city council’s growing claims of authority over criminal jurisdiction, but the absence of ius commune’s authoritative weight rooted punishments and procedures firmly in customary traditions of dispute settlement and private compensation well into the seventeenth century.7 This chapter tells the story in two parts. Part One focuses on chronology and traces the evolution of a special procedure for manslaughter cases during the sixteenth century. Unlike in Württemberg, Zurich’s archive contains rich and detailed legal sources from 1376 onwards, which allow us to trace the late medieval stages that created the context for the emergence of this early modern procedure.8 As in other areas of the German empire, manslaughter 7  For a discussion of the late consideration of criminal procedure and law based on ius commune in Zurich, see Thomas Guggenheim, Die Anfänge des strafrechtlichen Unterrichts in Zürich (Zurich, 1965) or Albert Meier, Die Geltung der Peinlichen Gerichtsordnung Kaiser Karls V. im Gebiete der heutigen Schweiz (Bern, 1911). 8  These form a part of the well preserved sources of the court of the city council, the Ratsgericht, which were bound in books, the so-called Rats- und Richtebücher. Until 1500, manslaughter proceedings were recorded in these books. After that time period, these records were kept in separate files. The Rats- und Richtebücher then only recorded those homicides which were punished with the death penalty. Records of the prosecution of manslaughter can be found in different kind of sources. Trial records and witness testimony collected beforehand were recorded separately, and verdicts were recorded in the so-called Ratsmanuale, proceedings of city council meetings which were bound into volumes each covering a six-months

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punishments became stricter and the council’s supervision of its prosecution tightened over time. Yet the Zurcher story provides another example to show that this long-term development was neither straightforward nor exclusively propelled by top-down measures. In Part One, I argue that the development of stricter categories and punishments in manslaughter cases occurred partly in reaction to, and was endorsed by, the legal strategies of witnesses and injured kin. Furthermore, council members looking to extend their competencies with regard to the settlement of manslaughter did not always pursue a consistent strategy, but often vacillated between various approaches and leaned temporarily towards harsher measures with regard to homicide around 1500. Around the mid-sixteenth century, however, they settled on a compromise between previous attempts at strictness and leniency. The categories and punishments that this compromise entailed remained in place during the sixteeenth and seventeenth centuries and were utilized within the framework of a revised trial procedure that combined concessions to the claims of injured kin with a heightened degree of supervision of the negotiations of such demands. Part Two draws on individual cases to examine in detail the ways in which this sixteenth-century procedural compromise was implemented in legal practice. The records suggest that the procedure used in manslaughter cases provided a convenient forum for participants to act out strategies of vengeance and reconciliation in an official legal setting. Council members aimed to compensate the heightened supervision entailed by this interaction between parties in front of the court with a flexible approach to the implementation of their statutory categories and punishments of manslaughter. The strategies and wishes of injured kin could significantly influence the course and outcome of the prosecution of manslaughter. At the same time, the records allow us to identify the effect of the council’s political and legal pragmatism. Gute Policey in Zurich compelled councillors to adopt solutions that cemented a lasting peace between slayer and victims’ kin, albeit often under strained circumstances. The sources indicate that they also became increasingly interested in fast and inexpensive solutions, meaning that they were sometimes willing to shorten proceedings. These flexible strategies of finding case-by-case solutions meant that councillors switched back and forth between the role of judge and mediator throughout the sixteenth and seventeenth centuries.

period. Very often, however, a copy of the verdict was also included in the files containing the trial proceedings. The subsequent discussion of the prosecution of manslaughter in Zurich is based on 591 sources.

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Government and Courts in Zurich The imperial city of Zurich became a part of the Swiss Confederacy in 1351, which nominally formed a part of the German empire until 1648.9 In the fourteenth century, Zurich was a city of middling size in comparison with other imperial cities, numbering roughly 6000 inhabitants. During the fifteenth century, the city also gained authority over adjacent rural territories, the so-called Landschaft. By the late seventeenth century, Zurich had become a city-state with about 8000 citizens living in the city itself and about 112,000 people inhabiting the Landschaft.10 Inhabitants of the Landschaft had no political say and were governed by the Vögte, who were chosen by the council and always held Zurcher citizen rights.11 Zurich had a so-called guild constitution; in 1336 the dominant political position held by patricians (i.e. local nobles) was replaced with “a government

9  See Francisca Loetz, Mit Gott handeln. Von den Zürcher Gotteslästerern der Frühen Neuzeit zu einer Kulturgeschichte des Religiösen (Göttingen, 2002), p. 83 and the literature cited there for a detailed description of the composition of the Swiss Confederacy. For a discussion of late medieval Zurich’s foreign policy, see Hans Berger, Der Alte Zürichkrieg im Rahmen der europäischen Politik. Ein Beitrag zur “Aussenpolitik” Zürichs in der ersten Hälfte des 15. Jahrhunderts (Zurich, 1978). 10  The number of inhabitants living in the Landschaft increased from 27,000 in 1467 to 112,000 in 1671. See Claudia Schott-Volm, “Policey in der Schweiz: Das Beispiel Zürich”, in Policey im Europa der Frühen Neuzeit, eds. Michael Stolleis, Karl Härter and Lothar Schilling (Frankfurt, 1996), p. 491, who based these figures on the statistics developed by Werner Schnyder, “Zurich’s Bevölkerungsentwicklung vom 14.–18. Jahrhundert,” Statistik der Stadt Zurich 35 (1929), 5–19 and on Anton Largiadèr, Geschichte von Stadt und Landschaft Zurich, vol. 1 (Erlenbach-Zurich, 1945), p. 268. The figures from 1671 are based on a contemporary census decreed by the council. Schott-Volm explains that the city council kept the number of inhabitants purposely low, see Schott-Volm, “Policey in der Schweiz,” pp. 491–492. 11  See Schott-Volm, “Policey in der Schweiz,” pp. 491–492. For a discussion of the social position of the Vögte, see Hans-Rudolf Dütsch, Die Zürcher Landvögte von 1402–1798. Ein Versuch zur Bestimmung ihrer Herkunft und Würdigung ihres Amtes im Rahmen des zürcherischen Stadtstaates (Zurich, 1994) or Erwin Eugster, “Die Entwicklung zum kommunalen Territorialstaat,” in Geschichte des Kantons Zürich. Band 1. Frühzeit bis Spätmittelalter (Zurich, 1995), pp. 299–335, for further reading regarding the late medieval expansion and organisation of Zurich’s territory. For a discussion of concepts of graded citizen right (Bürgerrecht) in Zurich, see the historiographical overview of Hans Jörg Gilomen, “Sozialgeschichte der spätmittelalterlichen Städte, 1990–2010”, in Sozialgeschichte der Schweiz—eine historiographische Skizze, eds. Katja Hürlimann et al. Traverse 1 (2011), p. 18 and the literature cited there.

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based on a council composed of equal representation by the guilds.”12 From then on, political power lay with the artisan guilds and the Konstaffel, the guild constituted by the patricians and Rentner, comprising rich Zurchers who lived from the yields of farms outside the city but did not have a profession.13 The guilds elected their members into the city council, which was itself divided into a large council of about 200 members and a smaller body of 24 members (referred to henceforth simply as “the council”). The large council decided on certain important affairs, such as taxes or territorial expansion, but ongoing governmental transactions were conducted by the small council, which met almost daily to regulate the economic, legal, and political affairs of the city.14 Over time, the balance of power between the Konstaffel and the artisan guilds shifted towards the artisans, a process that culminated in a law issued in 1498 which freed patricians and Rentner from the obligation to join the Konstaffel, and allowed them to join one of the artisan guilds, bolstering its numbers and prestige with their wealth and influence.15 Within the guilds, the fortunes of influential families fluctuated with trade and according to the changing political atmosphere of the fifteenth century.16 From the sixteenth century, historians have observed increasing oligarchic tendencies in the exercise of power by the Zurcher council.17 Rich merchant and Rentner families began to dominate the artisan guilds and thus the council itself, displacing proper artisans in positions of power during the seventeenth century.18 Over the course of the seventeenth century, power remained concentrated in the hands of select families.19

12  Schott-Volm, “Policey in der Schweiz,” p. 492: “… ein Ratsregiment mit paritätischer Zunftbeteiligung….” 13  For a history of the Constaffel guild, see Martin Illi, Die Constaffel in Zürich. Von Bürgermeister Rudolf Brun bis ins 20. Jahrhundert (Zurich, 2003). 14  See Wilhelm Heinrich Ruoff, Die Zürcher Räte als Strafgericht und ihr Verfahren bei Freveln im 15. und 16. Jahrhundert (Zurich, 1941), pp. 30–42 and Schott-Volm, “Policey in der Schweiz,” p. 493. 15  See Schott-Volm, “Policey in der Schweiz,” p. 492. 16  See Otto Sigg, Die Entwicklung des Finanzwesens und der Verwaltung Zürichs im ausgehenden 16. und 17. Jahrhundert (Bern-Frankfurt am Main, 1971). 17   See Schott-Volm, “Policey in der Schweiz,” p. 494 and Hans Conrad Peyer, Verfassungsgeschichte der alten Schweiz (Zurich, 1980), p. 112. 18  As Schott-Volm argues, 1601 was the last time that an artisan was elected mayor; see “Policey in der Schweiz,” p. 494. 19  See Schott-Volm, ibid., who refers to Werner G. Zimmermann, “Verfassung und politische Bewegungen,” in Zurich im 18. Jahrhundert, ed. Hans Wysling (Zurich, 1983), pp. 9–34.

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A watershed in the fortune of the city was the introduction of the Reformation between 1522 and 1525, which was heavily influenced by the teachings of the pastor Hyldrich Zwingli between 1522 and 1525. After this time the council attempted to shape politics according to Zwingli’s communal concept of a union between the Church and state, and henceforth supervised the organisation of Zurich’s Church and its teachings. Council members used their new role and its attendant responsibilities to legitimate their authority.20 As in other cities and territories of the German empire, the council had supervised urban comportment through sumptuary legislation since the late fifteenth century.21 This output of policy ordinances, called Mandate (“mandates”), continued after the Reformation was introduced. Prevalent concepts of the common good and gute Policey were now legitimated with Reformation morality.22 For the city 20  See Schott-Volm, “Policey in der Schweiz,” p. 495. For a discussion of the influence of Reformation concepts on the council’s policies, see Hans-Ulrich Bächtold, Heinrich Bullinger vor dem Rat. Zur Gestaltung und Verwaltung des Zürcher Staatswesens in den Jahren 1531 bis 1575 (Bern, Frankfurt am Main, 1982). 21  Hans-Jörg Gilomen, “Innere Verhältnisse der Stadt Zürich 1300–1500,” in Geschichte des Kantons Zürich. Band 1. Frühzeit bis Spätmittelalter (Zurich 1996), pp. 376–377. For a general discussion of the ideological function of the concept of the common good in late medieval Swiss cities, see Elisabeth Wechsler, Ehre und Politik: Ein Beitrag zur Erfassung politischer Verhaltensweisen in der Eidgenossenschaft (1440–1500) unter historischanthropologischen Aspekten (Zurich, 1991), pp. 256–262. 22  See Schott-Volm, “Policey in der Schweiz,” p. 495, and for further reading see also Claudia Schott-Volm, ed., Repertorium der Policeyordnungen der frühen Neuzeit, vol. 7: Orte der Schweizer Eidgenossenschaft. Bern und Zürich (Frankfurt am Main, 2006). See also Arman Weidenmann, “Von menschlicher und göttlicher Gerechtigkeit,” Zürcher Policeymandate im Spiegel zwinglischer Sozialethik,” in Gute Policey als Politik im 16. Jahrhundert. Die Entstehung des öffentlichen Raumes in Oberdeutschland, eds. Peter Blickle, Peter Kissling and Heinrich Richard Schmidt (Frankfurt am Main, 2003), pp. 458–459. These Zurcher edicts are commonly referred to by historians as Polizeiordnungen, “policy ordinances.” The term policey was used by the council in these prescriptions: a major edict from 1530 was issued to guarantee “good and honorable policy” (Schott-Volm, “Policey in der Schweiz, p. 502). According to Schott-Volm, the contents of the Mandate corresponded to and were therefore probably modeled on the policy ordinances issued in other areas of the German empire. Even though such transmission cannot be traced directly, Volm-Schott argued that the manner of such reception must have been “comparable to that in other imperial cities or territories” (ibid., p. 497). Schott-Volm asserts, however, that it is possible to trace the more direct influence of policy-ordinances issued by the Swabian Reichskreis. She provides two examples in which Zurich issued prescriptions on the same topic shortly after the Swabian publications, see ibid. After the introduction of the Reformation, a commission appointed by the city council, the so-called Reformationskammer, supervised the implementation of these mandates. For a discussion of the Reformationskammer, see Christoph Wehrli, Die Reformationskammer. Das Zürcher Sittengericht des 17. und

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council, gute Policey contained an imperative to ensure that the population lived in harmony with godly commands. This paternalistic concern justified the council’s demands of obedience from the population.23 At the same time, however, council members also emphasized that their political decisions were motivated by consensus. For example, when peasants of the Zurcher Landschaft started their own rebellion in 1525, using Reformation teachings to legitimate their demands, members of the council stopped the insurgence, although they also gave in to some of the demands. From this point onwards, reformatory initiatives rested with the council; the Zurcher Reformation was a typical Magistratsreformation (“a Reformation orchestrated by the magistrate”), according to Peter Blickle’s term, a movement in which government edicts and laws dictated the rhythm of change and reform.24 In order to quell resistance and ensure the public peace in the aftermath of the Reformation, it became crucial for the city council to base their decisions on a widespread consensus among the population. To meet this need, they conducted Volksanfragen (surveys) to ensure that they could justify legislation with a “consensus communis.”25 Mandates were discussed with the Vögte and upstanding citizens from the Landschaft, whilst individual prescriptions of these edicts also reacted to complaints and wishes coming from the population.26 This domestic policy of equilibrium corresponded with a foreign policy which aimed at fostering peace and balance. Following defeat by Swiss Catholic cities in 1532, following Zwingli’s optimistic urging in the hope of spreading his Reformation among the Confederacy, Zurich concentrated on the maintenance of its territory and on peaceful relations with its neighbors.27 18. Jahrhunderts (Zurich, 1963) and Peter Ziegler, Zürcher Sittenmandate (Zurich, 1978), pp. 79ff. 23  See, for example, Weidenmann, “Von menschlicher und göttlicher Gerechtigkeit,” p. 458 where he discusses the council’s use of scripture in its reaction to the peasants’ demands in 1525. 24  See ibid., p. 457 and Heinzpeter Stucki, “Das 16. Jahrhundert,” in Geschichte des Kantons Zürich. Band 2. Frühe Neuzeit—16. bis 18. Jahrhundert, eds. Niklaus Flüeler and Mariane Flüeler-Grauweiler (Zurich, 1996), pp. 203–204. The term Magistratsreformation was coined by Peter Blickle in order to describe the dynamics of Reform in Swiss cities. See Peter Blickle, “Die soziale Dialektik der reformatorischen Bewegung,” in Zwingli und Europa: Referate und Protokolle des Internationalen Kongresses aus Anlass des 500. Geburtstags von Huldrych Zwingli vom 26. bis 30. März 1984 in Bern, eds. Peter Blickle, A. Lindt, A. Schindler (Zurich, 1985), p. 87. 25  See Weidenmann, “Von menschlicher und göttlicher Gerechtigkeit,” p. 465, fn. 42, and the literature cited there. 26  See ibid, p. 468 and p. 477. 27  See, for example, Stucki, “Das 16. Jahrhundert,” p. 224.

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The Zurcher city council supervised jurisdiction in criminal matters within this expanding territory from the late medieval period onwards. The city possessed a complex system of courts with occasionally overlapping jurisdictions, of which the council court, the so-called Ratsgericht, was the most important. Its judges were the 24 members of the small city council.28 As lay judges, these council members had no formal legal training and, until 1400, the Ratsgericht judged only non-capital offenses.29 Judgment of capital offenses, the peinliche jurisdiction, belonged to the Reichsvogt, an imperial representative who held the so-called “Blood-court” on a public square. In 1400, however, the town acquired from the emperor the right to hold this “blood court,” and capital offenses were henceforth judged by the Ratsgericht.30 The city council traditionally had considerable control over Zurich’s other courts, the so-called “city court” and the court of the Vogt. The “city court,” which was available to settle disputes over debts, was presided over by the Schultheiss, a city official appointed by the former mistress of the city, the abbess of the Frauenmünster monastery. But the city council appointed the judges who adjudicated in this court, meaning that they exercised considerable influence on its legal practice. The court of the Vogt judged lesser offenses: verbal assaults, lighter physical attacks, or disputes over debts. In essence, it represented a continuation of the court of the Reichsvogt. After 1400 the city council appointed the Vogt and thus effectively controlled this court too. It is, furthermore, important to note that this complex arrangement of courts was superimposed over entrenched practices of private arbitration and settlement within the urban guilds. Many disputes that did not involve capital offenses were settled by the guild-masters, and never came before a court.31 These private arbitrators as well as the judges

28  The following overview is based on the detailed discussions of Zurich’s jurisdictional system by Ruoff, Die Zürcher Räte, p. 30 and Burghartz, Leib, Ehre und Gut, p. 35. 29  A legal profession did not develop in Zurich until the seventeenth century when ius commune gradually began to influence its legal system. Roman law generally did not take hold in cities of the Swiss Confederacy until this time; see Guggenheim, Die Anfänge des strafrechtlichen Unterrichts. 30  See Ruoff, Die Zürcher Räte, p. 17, points out that even before 1400 the council members conducted a preliminary investigation of cases judged by the Reichsvogt. See also Pascale Sutter, Von guten und bösen Nachbarn. Nachbarschaft als Beziehungsform im spätmittelalterlichen Zürich (Zurich, 2002), p. 185, for a discussion of the importance of mediation and arbitration practices in Zurich’s dispute culture. 31  Several guild-statutes prescribed that disputing guild members should wait a week before bringing an accusation before the courts of the cities; this was to allow guild masters time to settle a dispute internally. For a discussion, see Ruoff, Die Zürcher Räte, p. 26.

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of the Vogt- and the Schultheissengericht assigned only monetary compensations to be paid to the injured parties. Of all the various fora in which Zurich’s citizens settled their disputes, the Ratsgericht was the only institution which prosecuted a breach of the city peace, or Stadtfrieden. The judges assigned monetary compensations to be paid to the injured parties, but also fines for the breach of this peace. Stadtfrieden was an important legal and political concept and marked the radius of a city council’s jurisdiction. It subordinated the inhabitants to city laws and restricted private violence, particularly the feud.32 The restriction of violence was an important aspect of the maintenance of the Stadtfrieden. Like the laws of other German and Swiss cities, Zurich’s statutes not only prescribed fines for violence that breached the city peace, but also regulated the use of lethal weapons.33 In their endeavor to restrict violence within the city walls, councils also charged the citizenry to assist them: any citizen who witnessed a fight or brawl was obligated by law to demand Stallung, i.e. to request that the disputants make peace; those who refused were fined.34 Violence, however, also had an important part in the masculine code of honor, as the numerous fights and brawls that were investigated by the Ratsgericht demonstrate. As Susanna Burghartz has convincingly argued in her study of fourteenth-century Zurich, the regulation of violence within the walls of late medieval cities was constituted by compromises between the demands of peacekeeping and cultural attitudes towards violence.35 Our analysis of this balance will be enriched if we do not view “honor” and “city peace” as mutually exclusive, self-contained value systems, but rather, as cultural subcodes within the larger code of urban culture. Burghartz describes these subcodes as concepts which could both complement and contradict each other.36 The semantic fields of these subcodes and the various relationships 32  See Burghartz, Leib, Ehre und Gut, p. 42, and Osenbrüggen, Das Alamannische Strafrecht, pp. 55–57. For a detailed discussion of the concept of Stadtfrieden, compare also Eibach, “Institutionalisierte Gewalt im urbanen Raum.” 33  See Burghartz, p. 44. 34  For a discussion of the practice of Stallung and the strategic use that disputants could make, see Susanne Pohl, “Uneasy Peace.” 35  See Burgharz, Leib, Ehre und Gut. See also Susanne Pohl, “Ehrlicher Totschlag”—“Rache”— “Notwehr.” Zwischen männlichem Ehrencode und dem Primat des Stadtfriedens (Zürich 1376–1600), in Kulturelle Reformation. Sinnformationen im Umbruch 1400–1600 (Göttingen, 1999), pp. 239–283. 36  See Burghartz, Leib, Ehre und Gut, pp. 14–15, 200 and by the same author, “Disziplinierung oder Konfliktregelung? Zur Funktion städtischer Gerichte im Spätmittelalter: Das Zürcher Ratsgericht,” Zeitschrift für historische Forschung 16 (1989), 398–400.

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between the two codes were thus not stable, but open to constant situational adjustment. The semantic structure of “honor” was especially subject to change. “Honor” could refer to a cultural subcode with connotations such as “the right to violent self-assertion” or “blood vengeance”, and as such would be in opposition to the cultural subcode of “city peace,” with its connotations of “conflict avoidance” or “settlement in court.” On the other hand, “honor” might equally function as a code of peace because, in an urban ideology centered on the maintenance of the city peace, “honor” could be gained by its preservation. The meaning of “honor” and its relationship to “peace” was thus by no means consistent. Rather, it was inherently unstable. As Ortner has argued, such cultural inconsistencies can function as catalysts of historical change because they continuously challenge societies to adjust these relationships.37 In Zurich, the history of manslaughter may be read as an example of such a process of negotiation, as it was propelled by continuing efforts to adjust the balance between urban rules concerning the Stadtfrieden and communal norms regarding honorable violence. The first part of this chapter illustrates that the council attempted to bring the settlement of manslaughter under its control during the late medieval period by integrating both communal distinctions between honorable and dishonorable violence and customary concessions towards the vengeance claims of injured parties. The discussion traces changes in the categorization and punishment of manslaughter as well as in the procedure utilized to bring the offense before the court.

Part One: Punishment and Procedure in Late Medieval Zurich



Honorable and Dishonorable Violence: The Categorization of Manslaughter by the Ratsgericht When the butcher Heini Graser was killed by Welti Oechen in a Zurich slaughterhouse in 1377, his brother sought to portray the deed as murder. The Zurich Ratsgericht, however, rejected the term outright. The homicide had taken place after a heated quarrel, and witnesses confirmed that Graser had insulted the honor of Oechen and his family.38 Slayings which occurred during a quarrel and in response to some provocation, such as a physical or verbal assault, were called manslaughter—often “simple” or “honorable” (schlecht, ehrlich) manslaughter. As in other areas of the German empire, the term “murder” was reserved for the planned slaying of an unsuspecting victim, an act involving 37  See Sherry Ortner, High Religion (Princeton 1989), e.g. p. 196. 38  See StaZH B VI 190, fol. 92v.

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stealth and surprise, or to a breach of a special relationship of trust between disputants. Murder was considered a “dishonorable” act, and convicted murderers usually suffered an ignoble death by the wheel, a punishment that also tarnished family honor. The typical punishment of honorable manslaughter, on the other hand, was a monetary fine. Honorable slayers, it seems, could pay this fine and reassume their place in society without loss of social standing.39 This was the case with Welti Oechen: having paid a fine of 10 marks, he resumed his position and stature as a respectable member of the butcher’s guild.40 It seems that the category of honorable manslaughter was imposed with discretion, reserved for those groups who had honor to assert in the first place. Day laborers and vagabonds were far more easily charged with murder, and made up the bloodier chapters of Zurich’s criminal jurisdiction. Burghartz has shown that women took part in disputes in late medieval Zurich and also resorted to violence, although if they committed a homicide, their actions were generally called murder rather than manslaughter.41 Those whose acts were considered honorable manslaughter tended to be respectable guild members, masters and apprentices and the servants living in their households.42 Even Zurich’s council members occasionally saw violence as a necessary defense 39  Murder verdicts sually contained words or phrases suggesting the dishonor and immorality of the crime, such as umb solch gross Uebel und Unrecht (“for such shamefulness and injustice”). Verdicts for honorable manslaughter, on the other hand, typically stated that the slayer must pay 10 marks or 50 Pfund, the typical fine. This was not an insubstantial sum. For comparison, in 1424 a wood cutter could earn up to 24 Pfennig per day; see Gilomen, “Innere Verhältnisse”, p. 359. In order to earn 50 Pfund, he would have to work for approximately 400 days (one Pfund equaled 240 Pfennig, see Benedikt Zäch and HansMarkus von Kaenel, Zürcher Geld: 950 Jahre zürcherische Münzprägung (Zurich, 1986), p. 4). If the slayer was not a citizen of Zurich, he was required to pay 20 marks. See Friedrich Ott, “Der Richtebrief der Burger von Zurich,” Archiv für Schweizerische Geschichte 5 (1847), 160. 40  Oechen was also sentenced to an additional fine of 2 marks for taking the knife of the dead Graser, and he was required to replace the knife with one twice its value. According to the testimony of the witnesses, Oechen had intended to use the knife to prove Graser’s intent to stab him. See Susanna Burghartz, Leib, Ehre und Gut, pp. 114–116, who discusses Oechen’s successful life and career after the slaying. 41  I have found only one exception, which stems from the late sixteenth century; see StaZH A 17.1, 1569; see also Introduction, p. 20. For a general discussion of women’s use of violence, see Susanna Burghartz, Leib, Ehre und Gut, p. 145 and Sibylle Malamud, Die Ächtung des ‘Bösen’. Frauen vor dem Zürcher Ratsgericht im späten Mittelalter (1400–1500) (Zurich, 2003), pp. 118–127. The council court’s treatment of female violence will also be briefly discussed in Chapter 5, p. 262. 42  A thorough sociological analysis of the slayers would be difficult if not impossible given the evidence. We can often, however, identify them in the verdicts as bakers, butchers, etc.

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of honor, and were themselves charged with honorable manslaughter. Those who monitored the urban peace were thus also enmeshed in a cultural code of honor which made them vulnerable to censure. This may account in part for the legal tolerance of honorable violence and its consequences. Moreover, in Zurich, the family of a victim was entitled to seek private compensation or blood vengeance for the loss of a relative in cases of honorable manslaughter. Although the sources are silent, Welti Oechen probably negotiated a settlement with the family of the man he killed in order to escape the threat of blood vengeance. The judicial recognition of the requirements of honor thus coexisted with continuous efforts on the part of the city council to guarantee the city peace. This meant that the council abstained from capital punishment and moral judgment and made room for blood vengeance, but also prescribed a considerable fine for the breach of the Stadtfrieden. The sources suggest that the offenses categorized by council members as honorable manslaughter during the fourteenth and early fifteenth centuries comprised a broad range of slayings. The crucial factor was whether the slayer had reacted to a provocation. “Provocation,” or Anlass, was a legal concept in Alamannic law, but with regard to honorable manslaughter, it could encompass violent responses both to light and serious physical attacks as well as to verbal insults.43 When Hans von Frauenfelt killed Stirn in 1380 after they had quarreled over a game of dice, to take one example, the record shows that he stabbed him after Stirn had hit him with his fist.44 He paid the fine for an honorable manslaughter, as did Uli Sanger, who killed Gigenberg after the latter had spread unpleasant rumors about him.45 Although Zurich’s statute recognized the category of self-defense, which carried no punishment, there is little evidence of self-defense verdicts during the late medieval period. To account for this absence one could argue that entrenched notions of private justice and vengeance did not allow for the frequent use of such a completely exculpatory category, which would then deny private parties the right to vengeance.46 43  For a discussion of Anlass, see Riggenbach, “Die Tötung und ihre Folgen,” pp. 138–139. 44  See StaZH V VI 181, fol. 60v. 45  See StaZH B VI 195, fol. 308v. 46  Occasionally we find that judges made use of the exculpatory category of “accident.” Yet late medieval instances of accident are rare. I would speculate that accidents were generally solved out of the courts and that they probably also involved some kind of compensation to the relative. In the sixteenth century, when private arbitrations had come under the supervision of the council, we find that the judges arranged and monitored such settlements in cases where there had been a homicide through an accident. The only “accident” case in the early period came to court because the relatives of the deceased felt that it had perhaps not been an accident (see StaZH, B VI 201, fol. 85v; 1412). However

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The only instance of self-defense before 1500 suggests that in the earlier period it was reserved for extreme cases. In 1466, Ueli Mueliman was acquitted for acting in self-defense. The circumstances are not quite clear but apparently Muelimann had been attacked while he was on an official mission. The court officials of his village had ordered him to arrest a certain Gilgen Marxen. Perhaps Hans Gessweder, the victim, had been a friend of Marxen.47 This case may indicate that a slaying was called self-defense when the victim’s provocation constituted a serious offense, such as hindering the execution of justice.48 Rather, the category of honorable manslaughter appears to have been applied to slayings in which the slayer was forced to defend himself against a physical attack. When Chuono Neisideller killed Hans Bruegglin in 1381, for example, witness testimony made it clear that Bruegglin had drawn his knife first. Yet the council convicted Neisideller of manslaughter, and made him pay the customary fine of 10 marks.49 rare the use of the category “accident” (a category not mentioned in the statutes), Leman of Heslibach, accused of killing Jeclin Sigrist in 1376, apparently tried to make use of it, asserting that he had not killed Sigrist (StaZH B VI 190, fol. 169v). Whereas his accusers argued that Leman had pushed Sigrist from a bridge to his death, Leman asserted that Sigrist lost his balance and fell. Although what actually happened was unclear, as the testimony demonstrates, the judges convicted Leman of honorable manslaughter. In most cases, the circumstances of the slaying were too obvious for the slayer to attempt a defense of accident. 47  See StaZH, A 17 1, 1466. 48  The breach of a sworn peace or domestic peace may have been another serious offense. In the trial of Rudi Imhof, who killed Heini Wetzwile in 1405, Imhof implicitly argued that he killed to defend himself, albeit without any attempt to distance himself from the deed or to show regret. He asserted that Wetzwile had challenged him to leave his house while he was sitting at his dinner, and that the former had subsequently attacked him (see StaZH B VI 198, fol. 226r). To “challenge someone out of his house” was a severe offense; compare Osenbrüggen, Das Alamanische Strafrecht, pp. 364–365. There is no verdict attached to this case, perhaps an indicator that Rudi was left unpunished because he was able to prove self-defense. It is, of course, not necessarily true that the absence of a verdict proves that this was a case of self-defense, as many such cases survive. As Burghartz, Leib, Ehre und Gut, p. 67, has demonstrated, 55% of all cases between 1376 and 1385 did not have a verdict. One other verdict survives from 1391 which could conceivably indicate a judgment of self-defense. After Volmar had killed Matis in 1391, the council decided that the former was not liable for a penalty. But the verdict does not indicate whether the killing was self-defense or an accident (StaZH B VI 194, fol. 278v). Slayers who killed in the defense of their sexual honor were frequently acquitted, see, for example, a case from 1457 (StaZH B VI 220, fol. 348r), in which a husband had surprised his wife and her lover in the act of adultery. 49  StaZH B VI 191, fol. 141v.

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But even if slayers were rarely exculpated in the early period, neither, of course, did they have to fear being convicted of murder and then executed. The broad concept of manslaughter shielded these slayers from the death penalty since it was expansive enough to cover the typical deaths that resulted from tavern brawls. During the course of the fifteenth century, the breadth of the semantic concept of honorable slaying was revised to some extent as an additional category came to be used. In 1468, the judges convicted a slayer of dishonorable manslaughter for the first time.50 Dishonorable manslaughter referred to some kinds of homicide formerly covered by the category of honorable manslaughter, namely, those that were committed in public, but where the victim had not given a sufficient Anlass, and the slayer thus had not reacted to a direct provocation. The appearance of this category did not so much constitute a governmental challenge to established community values as it reflected communal perceptions that the concept of honorable manslaughter was too broad to describe effectively and accurately all slayings resulting from tavern brawls. In several cases, witnesses had stressed that they had not noticed a provocation on the part of the victim or that the slayer had been silent before he struck. An example is the case of Johann Nesi, who stabbed Chuni in 1382. Witnesses asserted that there had been a disagreement between the two about the quality of Nesi’s knife, but because Nesi remained silent after the incident, everyone thought that he had forgotten it. After some time, however, Nesi suddenly turned on Chuni and stabbed him to death without warning. The witnesses stressed that they had never heard Nesi direct a “bad word” towards his victim. The phrase is significant within the overall context of extant witness testimony in homicide cases. Witnesses rarely evaluated or judged the actions of the slayer; their statements are mostly brief and to the point, and at first sight descriptive rather than evaluative. To the judges, the terse statements of witnesses provided an adequate evaluation of a slaying. A further example is the testimony for Neisideller’s slaying of Heini Brügglin in 1381. A witness named Valkenstein told the council “that Heini Brügglin said to Neisideller, ‘you fucking bastard, you won’t deny what you said’,” and that Neisideller then challenged him to take action if something bothered him, whence “Brügglin drew his sword and

50  The category of dishonorable manslaughter was used in many Swiss cities during the late middle ages, and in light of the close connection among the Confederate Cities, it is likely that its creation involved considerable mutual influence. See Riggenbach, “Die Tötung und ihre Folgen,” pp. 61/62, 68/69. Although not a phenomenon unique to Zurich, the ways in which the category of “dishonorable manslaughter” developed and were implemented there illuminate the practice of the city’s homicide trials.

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stabbed Neisideller.”51 This brief narrative of events convinced the council that the slaying should be judged a honorable manslaughter because it had been a response to provocation. The testimony of witnesses suggests that the community shared in the evaluation of such honorable slayings. Their statements usually focused on the provocation that the slayer had suffered prior to his attack, and the council responded by applying the verdict of honorable manslaughter. Witnesses who asserted that they had never heard an exchange of angry words between the disputants implied that they did not feel that the slayer had been sufficiently provoked. When the witnesses in Nesi’s case stressed the slayer’s silence and the absence of “bad words,” they indicated that because Nesi never acknowledged a provocation, they simply assumed that Nesi had forgotten or dismissed their disagreement. Because slayings that took place before witnesses in a public space were generally not considered murder, Nesi was convicted of honorable manslaughter. Yet the council clearly shared the witnesses’ doubts regarding the justification of this slaying. In addition to the 10 mark fine, Nesi was exiled from Zurich for five years without mercy. During the fifteenth century, the council repeatedly attached additional stipulations to the verdicts when witnesses expressed doubts about whether the slayer had been sufficiently provoked: the slayer might be required to pay immediately rather than in gradual payments, or his hand might be cut off.52 There had thus existed an “underdefined category” somewhere between honorable manslaughter and murder that gradually coalesced into the official category of dishonorable manslaughter first used in the aforementioned verdict in 1468.53 In such verdicts, the punishment for dishonorable manslaughter was either 20 marks, double the amount of a honorable manslaughter, or execution with the sword.54 It was applied to slayings that had historically elicited the doubts of witnesses, especially those which lacked a justifiable cause, such as when slayers killed unexpectedly, perhaps taking an unarmed victim by surprise. The new category reflected communal evaluations of homicide 51  StaZH B VI 191, fol. 141v: “… du verhitter lotter, du solt die red nit lögnen, die du gerett hast…. des zuckt H. Brüggeli sin swert und stechet gegen dem Neisideller …” 52  See StaZH B VI 191, fol. 252v and B VI 204, fol. 4r–5v. 53  See StaZH B VI 226, fol. 86r–87v. I have found only one verdict from before 1468 that prescribed a fine of 40 marks because the slayer had killed “dishonorably” (“unredlich”) (StaZH B VI 197, fol. 231r, 1402). This verdict is additional early evidence of the council’s attempt to create a category covering unexpected, sudden slayings, but it was not until 1468 that the category began to be used routinely. 54  The monetary fine was initially used more frequently than the death penalty as a punishment for dishonorable manslaughter. I have found 4 verdicts before 1483 proscribing a fine and two proscribing the death penalty.

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while simultaneously allowing the council to display its judicial authority through the power to interpret and define slayings. Yet it is important to understand that the concept of dishonorable manslaughter was promoted not only by council members, but also by victims’ relatives, who in the early fifteenth century made their entrance onto the stage of homicide trials in the role of accusers. This development was an important step in the story traced in this chapter: the growing role of the Ratsgericht in the negotiations and interactions between slayers and injured kin. Vengeance through the Court: Accusers on the Stage The investigation of offenses before the Ratsgericht was usually initiated by private accusation. But in cases where no such accusation was made, the judges of the Ratsgericht had at their disposal a procedure that enabled them actively to pursue breaches of the peace. This was the so-called Nachgangsverfahren, or Nachgang (from nachgehen, “to pursue, to investigate”). In a Nachgang, the case was initiated by judges, who investigated rumors or denunciations and collected testimony before they met as a panel to discuss the evidence and reach a verdict. No party was present when judges considered the evidence in a Nachgang. However, in a private accusation, or Klage, proof was brought during the trial by the accuser (Kläger), who either produced witnesses or challenged his opponent to swear an oath. The judges then reached a verdict in the absence of the parties. In a Klage, the judges usually assigned a fine as well as demanded that further compensation be paid to the injured party. The Nachgang, on the other hand, primarily punished the breach of the city peace: the judges assigned a fine but mostly refrained from assessing additional monetary compensation to be paid to the victim. In order to receive such compensation, the injured party had to bring a private accusation before the court.55 Both Nachgang and Klage could lead to a so-called blood court, which imposed peinliche sanctions.56 While this blood court shamed the defendant and his family, the Nachgang and Klage were not in themselves dishonoring procedures.57 The Nachgang shared elements of the Roman inquisition procedure, such as the ex officio principle and the judges’ examination of witnesses, although there was a decisive difference: it is important to note that the distinctions between Nachgang and Klage could be fluid. For example, in cases involving smaller offenses, a Nachgang was often stopped as soon as a party

55  See Burghartz, Leib, Ehre und Gut, pp. 66–67. 56  See ibid., p. 88. 57  See ibid., p. 121.

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decided to raise a private accusation.58 Both procedures could also occur at the same time; there are, for example, homicide cases in which both a Nachgang and a Klage were recorded.59 While the Nachgang was an important tool to punish breaches of the city’s laws and its peace, the judges of the council court did not employ it consistently. According to Ruoff, the council even encouraged Klagen, since they saved time and energy because disputing parties brought their own witnesses.60 The procedural tool of the Klage had an important function within the context of the city’s dispute culture. Going to court could constitute just one stage within a longer drawn out conflict between parties, such lasting enmities being a characteristic of its urban culture.61 The aim of taking an opponent to court was not necessarily judicial closure; many entries of Klagen were crossed out in the Ratsbücher, which indicated that the case had been dropped.62 In such cases, the main purpose of the Klage may have been to aggravate or inconvenience the opponent. It is also possible that an extrajudicial (if temporary) solution had been set in place until the dispute flared up again. The procedural form of the Klage was thus an important option for Zurich’s inhabitants, who could utilize it in their disputes as one option alongside various out-of-court strategies. According to Burghartz, city councillors endorsed the role of the court as a convenient dispute forum for quarrelling citizens and may have switched frequently between the role of judge and mediator.63 58  See Ruoff, Die Zürcher Räte, p. 71 and Burghartz, Ehre, Leib und Gut, p. 64. 59  I have found a total of 11 homicide cases during the fifteenth century in which both a Nachgang and a Klage were recorded. In those cases, the Nachgang seems not to have been halted. In most of these eleven cases, the case was probably initiated by a Klage but then subsequently investigated by a Nachgang; see, for example, StaZH B VI 190, fol. 167v. 60  See Ruoff, Die Zürcher Räte, pp. 105–106. He reports that the council occasionally tried to force denouncers to become accusers. Following increasing complaints the council was obliged to discontinue this practice in the sixteenth century. 61  See, for example, Bughartz‘ discussion of a lengthy dispute between two women, pp. 118–121. In Zurich, as elsewhere in premodern Europe, as historians influenced by anthropological studies of dispute settlements have noted, the emergence of centralized legal systems did not so much end feuding culture as transform it by providing new means through which enmities could be conducted. See, for example, Wendy Davies and Paul Fouracre, eds., The Settlement of Disputes in Early Medieval Europe, (Cambridge, 1986), p. 233, Daniel L. Smail, “Telling Tales in Angevin Courts,” French Historical Studies 20:2 (1997), 183–215, or Richard L. Kagan, Lawsuits and Litigants in Castile, 1500–1700 (Chapel Hill, 1981). 62  Compare also Burghartz, Leib, Ehre und Gut, pp. 66–68. 63  See Burghartz, Leib, Ehre und Gut, for example, pp. 200–201.

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With regard to manslaughter, however, such flexibility came about only gradually. Initially, during the fourteenth and early fifteenth century, the justice of the Ratsgericht and the interactions and negotiations between slayers and injured families occurred separately. The severe breach of the Stadtfrieden constituted by a manslaughter was always punished with the standard fine of 10 marks and prosecuted with a Nachgang. There are few additional Klagen from injured relatives during this early period. Even if they raised a Klage, the judges did not assign compensation as they did in cases of minor offenses. This was because the family of the victim had the right to pursue blood vengeance or to negotiate an extra-judicial settlement with the slayer. This meant that relatives could choose between the slayer’s blood or his money, and could influence the sum they might recieve in compensation during these negotiations.64 The early records of the Ratsgericht can tell us only half the story: they record the assigned fine for the breach of the peace, but do not record the injured party’s search for their own compensation or its outcome. While council members probably often assisted in the arbitration of settlements, the official records of the Ratsgericht hardly ever recorded them.65 While there was initially little incentive to raise a Klage in manslaughter cases, the distinction between the extrajudicial search for vengeance and the judicial maintenance of the Stadtfrieden became less clear as the fifteenth century wore on, and is marked by a shift from Nachgänge in homicide cases to Klagen. Families of victims increasingly initiated trials by private accusation 64  Evidence that vengeance killing actually took place is scanty—because it was not considered a legal offense, there was no reason to record it. Letters to the council from slayers in the early sixteenth century complaining about being attacked by people whom they were not aware were related to their victims offer a glimpse of its reality; see for example StaZH A 17.1, 1528, letter of the slayer Heinrich Haldenstein to the council. The case will be discussed later in this chapter. 65  There are a few exceptions; see, for example, StaZH B VI 195 fol. 261r, or StaZH B VI 205, fol. 204v. Before 1500, I have found 4 settlements arbitrated by the council. The conditions in these few early arbitrated agreements focused on financial compensation and donations for the welfare of the soul of the victim. These settlements also sought to forestall further hostilities between the involved families. An agreement from 1437 required the slayer and victim “to be good friends with each other, and Hensli Smid [the slayer] should behave so that they can take pleasure in it.” Smid was further required “not to drink in the company of the family of the victim for one year” (A 17.1). Interestingly, the desires of the living were apparently sometimes at odds with the interests of the dead. In a case from 1421, the council apparently undertook to arbitrate a case between the parties. The family of the victim came to the judges and told them that instead of donations for the soul of their relative, they would prefer a more substantial monetary compensation for the children of the slain man (StaZH B VI 205, fol. 204v).

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before the Ratsgericht, and these records allow us to glimpse their strategies.66 The Ratsgericht adapted to this change: the number of Nachgänge in manslaughter cases decreased, and judges assigned the normal fine for the breach of the peace within the context of the Klage. Although it is impossible to give a definite reason for this rise of private accusations, the process was clearly not inhibited by the city council. The rise in private accusations in homicide cases apparently coincided with a general rise in Klagen over Nachgänge in all areas. In her research, Burghartz compared the number of Klagen (in all crimes rather than simply for homicide) during the years 1376–1385 with the years 1480–1484 and found that a general rise of accusations for all types of

66  In the following account of the number of Klagen and Nachgänge between 1376 and 1600 I have only included cases tried by the council court. I do not include those cases mentioned in the court books that were tried in a village or town in Zurich’s territory which possessed the privilege of the “higher jurisdiction,” a privilege that entailed the right to judge homicide cases. I also do not include those cases ending in a murder verdict or those in which the slaying was called a murder by the judges even if the slayer escaped. Such cases continued to be investigated by judges in a Nachgang. “Murder” was usually associated with cases such as highway robbery or in situations where the slayer was not immediately identified. In such cases, the accused—fearing the death penalty—was often reluctant to admit the deed when finally captured. Judges therefore often used torture to exact a confession, a process unavailable to private parties. Yet the term “murder” was also used for slayings that resulted from a quarrel but which occurred after the disputants had been brought to promise each other “peace.” Slayers convicted of violating such a peace were punished, like murderers, with the wheel. I have found 4 such cases in which such a slaying was brought by a Klage, 3 before 1500 and 1 after 1500.  I include in the following count those cases ending in a verdict of honorable or dishonorable manslaughter, cases in which the slayer was acquitted, or those that involved “guests.” I also include cases that do not have an attached verdict and which were probably settled out of court. For the period between 1376 and 1410, I have found a total of 45 cases. Of these, one case was brought by a Klage, and in five both a Klage and an investigation through a Nachgang were recorded or referred to in the courtbooks. But most cases, 39 in all, were investigated solely by a Nachgang. In the period between 1411 and 1465, I have found 21 Nachgänge, 12 Klagen, and 3 cases involving both a Nachgang and a Klage. In 3 additional cases, the procedure is unclear. These numbers indicate an increase of Klagen when compared to the earlier period (1376–1410). It is difficult, however, to evaluate this increase because the total number of cases decreased during this period, due perhaps to economic or political instability. It is also important to note that after 1465 the total number of cases increased again, and the percentage of Klagen rose to roughly 50%. Between 1466 and 1500, I have found 10 cases in which the procedure is unclear, 1 case in which both a Nachgang and a Klage was recorded, 11 Nachgänge, and 20 Klagen. After 1500, homicides other than murder were regularly initiated through private accusation.

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offenses had occurred.67 Of course, this is too small a sample from which to generalize, but her data is possibly strengthened in the light of the evidence for the manslaughter cases. As I have mentioned earlier, the council probably welcomed Klagen, finding them a welcome relief from the task of searching for proof as required by a Nachgang. Another way of understanding this gradual shift from Nachgang to Klage in manslaughter cases during the fifteenth and sixteenth centuries is in the context of changing attitudes toward the practice of blood vengeance. The records show us that the city council increasingly sought to regulate this practice. A statute of 1448 recorded in detail who was allowed to pursue blood vengeance and who was not, limiting the number of avengers to the closest kin.68 Court registers also imply that council members took further steps to bring vengeance slaying under their control. From about 1400, recorded verdicts begin to mention that the council had given official permission to the injured party to pursue blood vengeance.69 These measures may suggest that the council was seeking to tie the execution of vengeance to an official trial. Blood vengeance would then be allowed only with official permission issued after a trial. Such a measure might well have offered an inducement to those families seeking blood vengeance to make use of the court system in pursuit of vengeance. With the change from Nachgänge to Klagen, kin groups began to play out some of their enmities through the Ratsgericht, introducing a “language of vengeance” into the courtroom. Thus, many decades before the first official use of dishonorable manslaughter, accusers had begun to argue for harsher punishments for slayings that could not be considered murder and made use 67  Burghartz, Ehre, Leib und Gut, p. 65. The rise of accusations in honorable manslaughter cases confirms Burghartz’s argument that the Nachgang was not a criminal procedure in the modern sense, in other words, a tool to discipline and aggressively pursue crimes. The rise in Klagen in front of the Ratsgericht is possibly connected with the decline of the Vogtgericht toward the late fifteenth century, see Ruoff, Die Zürcher Räte als Strafgericht, p. 17. Consequently, Klagen that would previously have been brought in front of the Vogtgericht were now all brought in front of the Ratsgericht. 68  See Die Zürcher Stadtbücher des 14. und 15. Jahrhunderts, ed. H. Zeller-Werdmüller, Bd. III, Leipzig 1899, no. 106, p. 200. This statute decreed that a father could take vengeance for his child, a child for his father and grandfather, a grandfather for his grandchildren and great-grandchildren. In addition, siblings could avenge each other, as could cousins and their descendants. 69  These verdicts stated that the “body of the victim was allowed to the killer,” meaning that permission was granted to pursue blood vengeance. During the 1390s, this is recorded in manslaughter verdicts three times. From 1400 onwards the phrase became a standard addition to the manslaughter verdict.

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of a vocabulary of dishonorable slaying that would later be adopted by the council in its efforts to define the new category. From their first entrance into the courtroom, accusers sought to stigmatize slayers by representing them and their actions in the most unfavorable light.70 To this end, they often employed expressions associated with murder in the verdicts of the Ratsgericht. These verdicts at times expressed moral condemnation of the slaying, asserting that the homicide had been a heinous attack on an innocent victim, “a shame and an injustice” (übel und unrecht). As murder usually involved slayings where no witnesses were present, the verdicts frequently stressed that an attack had taken place “at night and during a fog” (by nacht und nebel), a conventional phrase that served to underscore the heinous secrecy of the deed.71 Accusers began to utilize these phrases in their descriptions of slayings that technically qualified as honorable manslaughter, i.e. those which had occurred before witnesses and in connection with a quarrel. Accusers frequently stressed that the slaying was not honorable because it was nit verdient noch beschult (neither deserved nor with a cause).72 Although accusers made every effort to denigrate their opponents, most accusations ended with verdicts of honorable manslaughter, since the circumstances of the slayings did not fit the category of murder.73 Yet we can speculate that in their desire to stigmatize 70  Witness testimony suggests that stigmatization of the killer through questioning the “honorableness” of the killing was a common part of the vengeance game. In 1450, for example, after Peter Snider had killed Hans Dorner’s servant, a rumor spread by Dorner’s wife that Snider had attacked Hans Dorner dishonorably reached Snider’s relatives in a very short time (see StaZH B VI 217, fol. 144r–145r). The opportunity to present their case in front of members of the council might have lent credibility to such rumors spread by the accusers. 71  This language of wrongfulness was not restricted to murder cases but was generally used to characterize heinous, secret acts. See, for example, the use of the term uebel in a verdict for theft, StaZH, B VI 216, fol. 239r, and in another non-homicide, StaZH B VI 217, fol. 44r. 72  Of course one must be careful when attributing to accusers the deliberate choice of certain judgmental phrases and expressions. It is important to consider the influence of scribes who may have expressed oral accusations in standardized forms when they wrote them down. Yet until the latter part of the fifteenth century, these judgmental phrases and expressions, although similar in style and tone, varied considerably. Scribes in this period apparently did not yet use a set of standardized expressions to formulate the accusations. I have therefore assumed that the accusations from this time preserve at least to some extent the individual style of the accusers. 73  I have found only 3 cases before 1468 in which accusers had been successful in reaching a higher verdict. One of these is from 1448, where in addition to the customary manslaughter fine, Claus Zender was banished from Zurich for two years (StaZH B VI 216, fol. 183r). Unfortunately, we do not know how the slayers responded to the vicious charges of their

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their opponents, accusers contributed to a vocabulary of wrongfulness that became attached to the category of dishonorable manslaughter. When the new category was introduced into legal procedure towards the end of the fifteenth century, the council used language emphasising deceit and injustice to define it which could echo the allegations made by accusers; as such verdicts which included a reason as to why the slaying had been judged as dishonorable often condemned it as lacking a justifiable cause, noting that it was undeserved (“unverschult”) or presumptuous (“muotwillenklich”).74 Accusers enthusiastically embraced the new category. After its introduction, they routinely asked that a slaying be punished as a dishonorable manslaughter, flavoring their opponents and whether it changed their confident self-representations. Statements by slayers before the first use of dishonorable manslaughter in 1468 are rare; here I have found only the statement by Rudi Imhof in 1405 discussed earlier. The court books repeatedly state simply that the slayer had confessed to the slaying, and they do not include any explanation he might have given. Indeed, many cases from this period provide no details at all. Moreover, and perhaps more significantly, many slayers fled Zurich to await the outcome of the trial. Between 1376 and 1400, I found no evidence of slayers who had run away. Between 1400 and 1468, in 14 out of 32 manslaughter cases the slayer had escaped. The number of runaway slayers possibly increased because slayers feared stricter punishments. The fact that accusers continuously denigrated the slayer, in combination with an apparently increasing concern on the part of the council to punish certain slayings more strictly, might have contributed to an increasing apprehension about the council’s decision. 74  See e.g. StaZH BVI 235, fol. 199r–199v. Soon after the first use of the category in 1468, this vocabulary became even more judgmental as well as more standardized; phrases such as schamlich and lasterlich (“shameful and sinful”) were routinely used to characterize the slaying in both accusations and verdicts. See e.g. StaZH BVI 229, fol. 114r–114v. Toward the end of the fifteenth century, accusers may have received “expert” help in the fomulation of their accusations. During this time, professional procurators or advocates (Ratsredner) had become available to represent parties before the Ratsgericht. The Ratsredner had no formal legal training. To qualify for this position they were required to give a speech in front of council members demonstrating their ability to address the council court. The number of Ratsredner was limited—there were never more than five or six at one time. Apparently they were not always respected members of society. According to Arthur Bauhofer, Ratsredner were often citizens who had failed in other professions, see Arthur Bauhofer, “Fürsprechertum und Advokatur im Kanton Zürich vor 1789,” Zürcher Taschenbuch auf das Jahr 1927 Neue Folge 47 (1926), 148–158. Although there are statutes limiting the amount of money they were able to charge, the trial records never refer to their presence in court. It is therefore difficult to determine with certainty to what extent their advice encouraged accusers to use phrases and expressions which the council members had come to accept as a definition of dishonorable slaying. Certainly, the more frequent use of a limited set of standardized phrases may also be due to scribal conventions.

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charges with judgmental phrases and expressions. In their desire to stigmatize their opponents, accusers thus continuously endorsed, confirmed, and perhaps even contributed to a vocabulary of wrongfulness that became attached to the category of dishonorable manslaughter. Although their accusations rarely ended in a death sentence, accusers thus utilized the court to stigmatize and put pressure on their opponents, perhaps in order to up the ante for their extrajudicial settlements with the slayer. In the second half of the fifteenth century, the number of private accusations rose again. The possibility of obtaining higher punishments for slayers after the introduction of the category of dishonorable manslaughter in 1468 may thus also have drawn injured parties to seek justice at court. Such increasing utilisation of justice could be advantageous to injured relatives, but it also underscored the council’s authority to define and categorize slayings and inserted the council judges into the interactions between slayer and victims’ relatives, an area which had formerly remained outside the Ratsgericht’s official domain. Towards the end of the fifteenth century, it appears that council members sought to increase their judicial authority further through a series of legislative initiatives. Accusers who applied their requests for the death penalty indiscriminately to slayings participated indirectly in a process initiated by the council: a search for stricter measures to maintain the city peace and to punish homicide. Such measures also included efforts to supervise to a far greater extent accusers’ search for retaliation.

The City Peace and the Law: Authority and Homicide Legislation, 1480–1539 During the late fifteenth century the Zurich city council strengthened legislative measures to ensure the city peace. According to Gilomen, the council evolved into an Obrigkeit (“government”), which increasingly treated citizens as subjects subservient to their authority.75 This took place through a centralization of authority in the hands of the economic elite and through a general stratification of bureaucratic and administrative structures aimed at controlling the increasing territory of the city of Zurich.76 From the late fifteenth century, the council had sought to centralize the administration of this territory, 75  See Gilomen, “Innere Verhältnisse,” pp. 370–71, 384. 76  See, for example, Paul Guyer, Die soziale Schichtung der Bürgerschaft Zürichs vom Ausgang des Mittelalters bis 1798 (Zurich, 1952) and Otto Sigg, Die Entwicklung des Finanzwesens und der Verwaltung Zürichs im ausgehenden 16. und 17. Jahrhundert (Bern-Frankfurt/M., 1971). For a general discussion of government formation in late medieval German cities and territories, see Erich Maschke, Städte und Menschen (Wiesbaden, 1980), pp. 121–137.

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and it made use of the law to control the villages and small towns which had previously enjoyed significant rights of self-government.77 With regard to the administration of justice, we can identify a tendency to centralize legal practice under the authority of the Ratsgericht as an effort to strengthen the maintenance of the city peace. By the end of the fifteenth century, the Vogtgericht (which did not punish the breach of the city peace, but only assigned compensation to the victim) had lost all importance, and most disputes were now judged by the Ratsgericht.78 Private arbitration continued, but council members reserved the right to pursue those who had compensated their opponents, imposing an additional fine on them for a breach of the city peace. Arbitration was now increasingly supervised by the council.79 The extension of the competencies of the Ratsgericht was accompanied by changes in the city councillors’ attitudes towards the treatment of manslaughter. Towards the late fifteenth century, the council considered stricter measures to guard the Stadtfrieden against urban violence and vacillated between two alternatives: abolishing the concept of honorable violence altogether, or finding a new compromise in the regulation of violence. Homicide legislation enacted between 1480 and ca. 1539 shows that the council adopted no consistent strategy, but shifted back and forth between these two approaches. The notion of an era of inconsistent legislation fits well with Herman Romer’s analysis of the council’s composition and political situation at this time, one dominated by struggles for political power among the city’s elite. This was a period of great legislative adjustment. To guarantee their authority, council members experimented with new forms of authority, often enacting extreme measures that were subsequently unenforced or even revoked.80 In one such instance in 1480, the council issued a statute that abandoned the legal concept of honorable manslaughter altogether and punished every slaying, with the exception of self-defense, with the death penalty.81 This statute was apparently nullified by another in about 1490, which reintroduced 77  See Eugster, “Die Entwicklung zum kommunalen Territorialstaat” and Stucki, “Das 16. Jahrhundert.” 78  The Schultheissengericht continued but, as it did not punish offenses against the city peace, its continuation does not contradict the argument that such offenses were increasingly judged by the Ratsgericht. 79  This development culminated in the late sixteenth century when private arbitrations began to be officially recorded; see Ruoff, Die Zürcher Räte, p. 28. 80  See Herman Romer, Herrschaft, Reislauf und Verbotspolitik. Beobachtungen zum rechtlichen Alltag der Zürcher Solddienstbekämpfung im 16. Jahrhundert (Zurich, 1995), pp. 64–65. 81  See StaZH B VI 232, fol. 105v–105r.

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the category of honorable manslaughter but punished it more strictly with a fine of 20 marks and two years of exile.82 In 1529 the council again altered the laws in favor of the harsher statute from 1480, once again imposing the death penalty for every homicide, exempting only self-defense.83 Finally, in the 1530s, a new law reaffirmed a distinction between honorable and dishonorable manslaughter, evidently because the harsher law “could no longer be tolerated,” as was noted anonymously in the margin of the statute book.84 This undated statute can be found in a so-called Kopialbuch (a copy of existing statutes) from 1539, leading us to assume that it was issued between 1529 and 1539.85 According to this law, those who could prove that they had killed in self-defense would not be punished, whereas honorable slayers would be punished with a 20-mark fine and a year of banishment. Before returning, however, a slayer had to reconcile his deed with the family of the victim, who were now denied blood vengeance. The punishment for dishonorable manslaughter was left to the discretion of the council, which meant that they were free to choose between execution by the sword or a monetary fine. The frequent alteration of statutes as well as the variety and inconsistency in the application of verdicts during this period testifies to a growing concern on the part of the city council to reorder and re-categorize the concept of honorable manslaughter. The introduction of dishonorable manslaughter as a category of homicide was evidently only the beginning of the council’s attempt to redefine the category. Nor was this vacillating treatment confined to the statutes, but is also apparent in the verdicts, which display an astonishing variety and freedom from statutory requirements.86 The death penalty 82  I have been unable to locate this statute, although the verdicts refer to it explicitly. 83  See Emil Egli, Actensammlung zur Geschichte der Zürcher Reformation in den Jahren 1519– 1533 (Zurich 1879), pp. 679–680. 84  See Joseph Schauberg, ed. Zeitschrift für noch ungedruckte schweizerische Rechtsquellen I (Zurich, 1844), pp. 367, 370–371. 85  It is difficult to date this statute exactly. There are no verdicts of honorable manslaughter in the 1530s. Either this is due to the loss of sources, or the strict statute from 1520 was still in use. From 1543 we can again find verdicts of honorable manslaughter, and the new statute is regularly enforced. 86  In the decade after the harsh 1480 statute, the verdicts show that the older norms were still in practice. I have found two verdicts for 1480 that prescribed the death penalty and that explicitly referred to the statute of 1480. In the years leading to 1490, however, I have found four verdicts prescribing the old fine of 10 marks for honorable manslaughter and one verdict prescribing a fine of 20 marks, two verdicts of dishonorable manslaughter punished with the sword, and one verdict of dishonorable manslaughter punished with a fine of 20 marks. For the period between the second and the third statute, 1491 to 1529,

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appears at times to have been applied indiscriminately, while the category of honorable manslaughter—even when the harsher statutes were in force—was punished either with fines of 10 or 20 marks plus a two-year banishment. Both judgments also allowed for the possibility of blood vengeance. The category of dishonorable manslaughter was punished either with execution by sword or with a 20-mark fine, in addition to a two-year banishment. Further, we find for the first time a category of self-defense, a category which did not carry a prescribed punishment. This apparent inconsistency in the council’s efforts to control violence perhaps illustrates how deeply the council members themselves were steeped in a mentality that allowed the use of violence in the defense of honor. To make one comparison, in 1485 Jacob Rutschman killed the slayer of his cousin immediately after the original slaying had taken place and without having obtained legal permission to do so. He therefore had to pay a fine of 10 marks.87 In 1501, Hans Leman likewise killed the slayer of his cousin “in the heat of passion” and also before he had obtained legal permission. This time, however, the council was decidedly more perplexed. They called a meeting of the great council and debated whether Leman should go free—because it would have been his right to avenge his cousin—or should be punished. The council was initially divided, but after a long debate they decided to let him go free, despite their apparent efforts to curtail blood vengeance.88 In 1524, the council took care to point out in a verdict that the family of the victim should not take vengeance into their own hands if they found the escaped slayer of their kin. In such a case, they should “tell it to my lords,” so that they could take action.89 The last statute ended the vacillating attitudes towards punishment and vengeance. Since the 1540s, honorable manslaughter had always been punished with a fine of 20 marks and banishment for one year. Blood vengeance was denied to the family of the victim, yet before the slayer was allowed to the verdicts displayed the same astonishing variety of punishments. Here I have found four honorable manslaughter verdicts punished according to the 1490 statute, with 20mark fines and two years of banishment and seven honorable manslaughter verdicts punished with 20-mark fines and one year of banishment, three honorable manslaughter cases punished with 10-mark fines, one dishonorable manslaughter verdict punished with a 20-mark fine and one with the same fine and a year of banishment, and 8 dishonorable manslaughter verdicts that ordered the execution of the slayer by the sword. I also found six verdicts of self-defense, a designation rarely seen in verdicts prior to 1506. 87  See StaZH B VI 236b fol. 243r–250v. 88  See StaZH A 17 1, November 15, 1501. 89  StaZH B VI 248, fol. 190v.

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re-enter Zurich, he had to negotiate a settlement with the injured party, a negotiation now generally supervised by the council. Dishonorable manslaughter was always punished with execution by sword, even though the statute of the 1530s left its punishment to the discretion of the council. Slayers who could prove self-defense went unpunished.90 These changes coincided with the introduction of the Reformation in Zurich, raising the question of how the Reformation influenced homicide legislation. Zwingli and Bullinger based their approach to the matter on the Ten Commandments, promoting the application of the death penalty in their sermons and letters.91 It is therefore perhaps no coincidence that the strict statute of 1529 was issued at the height of Zwingli’s political power in Zurich. Zwingli’s influence may also be apparent in a phrase preceding the statute, which states that the council was “meeting about the ordinances on homicide and on other matters in order to discuss those laws which were not in harmony with the word of God.”92 In his study of the influence of Zwingli’s successor Heinrich Bullinger on the legislation of the council, Hans-Ulrich Bächtold has demonstrated that the increasing frequency of sumptuary legislation can be linked to Bullinger’s admonitions to the council, the so-called Fürträge. Like Zwingli, Bullinger charged the council with the responsibility of enforcing Christian morality. During the second half of the century, Bullinger frequently reminded the council that God’s wrath would be incurred if its members did not fulfil this obligation.93

90  This statute was issued shortly after the new German imperial code, the Carolina, was instigated in 1532. This perhaps led Zurich’s council to codify a new homicide statute in the 1530s. Yet the substance of the Zurcher statute differed from the Carolina, which did not make room for a non-capital category of homicide aside from self-defense. We can not exclude the possibility, however, that the increase in self-defense verdicts that began in 1506 was in some way related to the influence of Roman law that we see in other German territories. And yet for Zurich there is no tangible evidence of such an influence. 91  In a sermon explaining the commandment “Thou Shalt Not Kill,” Bullinger argued that no land could have peace unless the state took revenge on the slayer by shedding his blood (“… und wirdt dem land nit gefridet das todschleger tragt/es trincke dann ouch ir bluot”); Heinrich Bullinger, Summa Christenlicher Religion, Christoffel Froschauer, (Zurich, 1556), Microfiche EPBU-185/1, Inter Documentation Company AG, Zug. 92  Egli, p. 679: “… sollen über die Satzungen der Todtschläge halb sitzen, auch die andern Ordnungen und Satzungen vornehmen, über die dem Gotteswort ungemässen beratschlagen …” 93  See Bächtold, Heinrich Bullinger vor dem Rat, pp. 59–87, for example, at pp. 65 and 80.

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Yet the Reformation did not mark the beginning of the council’s strict judgments, which first took shape in the statute of 1480. Furthermore, the final statute from the 1530s departs from the previous drive towards strictness, and its re-introduction of honorable manslaughter might have been connected with a pragmatic turn during the 1530s. The Zurcher Reformation effort experienced a cooling-off period after the death of Zwingli, whilst Zurich was also defeated at the hands of Catholic cities in the Battle of Kappel. Bächtold has argued that the initial reaction of the council to this event was a certain disenchantment with the political advice of Reformers.94 Instead of cementing political power with strict measures that might include sudden breaks and ruptures with political and legal traditions, council members built authority on a politics of balance and compromise in the aftermath of the Reformation.95 The statutory compromise with regard to the settlement of homicide may well have been an expression of such politics. Additionally, although we cannot document it, we may at least speculate that council members themselves were ambivalent towards the notion of making radical breaks with former concessions to communal perceptions of honorable violence.96 Honorable manslaughter was punished more harshly after the last statute was issued during the 1530s, yet communal distinctions between honorable and dishonorable violence retained their legal validity, and honorable slayers remained safe from the jurisdiction of the blood court. Injured relatives both lost and retained legal privileges, as council members extended their supervision of accusers’ searches for retaliation to the extrajudicial arena outside the courtroom. Blood vengeance had been abolished, and agreements were now mandatory and regularly supervised by the council. The council also made more frequent use of exculpatory categories such as self-defense and accident alongside dishonorable and honorable manslaughter. The criteria for the application of these categories were increasingly mentioned, albeit briefly, in verdicts of of the early modern period. Only in verdicts of honorable manslaughter were such explanations omitted until the seventeenth century. From sixteenth-century accusations and testimony as well as from seventeenth-century verdicts, we can deduce that these contained cases in which a slayer used violence to counteract what he considered to be a verbal provocation, or when a slaying occurred during a knife fight and it was impossible to determine the 94  See ibid., pp. 15–18. 95  See Stucki, “Das 16. Jahrhundert” p. 224. 96  The aforementioned note in the Statute book, that the law punishing every homicide except for self-defense with the death penalty “could no longer be tolerated,” might point towards such resistance.

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instigator. The city council awarded self-defense verdicts in those cases in which a slayer had used violence to counteract a physical provocation, but had not himself provoked the victim’s attack. Many of these self-defense cases were slayings that involved a breach of a special peace or trust on the part of the victim.97 But they also involved slayings that, in the fourteenth century, would most likely have qualified as honorable manslaughter, i.e. those in which the victim had first used force but which had taken place during a heated quarrel. The verdict of dishonorable manslaughter continued to be applied to slayings which had been called honorable manslaughter before the creation of the category in 1468 but which had seemed doubtful and unjustified. Dishonorable slayers were those who had killed without sufficient provocation. The records also show an occasional interest in the inclusion of legal criteria in their justifications of a verdict. While neither ius commune nor the Carolina was officially adopted during the seventeenth century, some such terms and concepts began to appear in verdicts during the seventeenth century. While the language of intent had before only appeared in connection with verdicts of dishonorable manslaughter, which was generally characterized as “wanton” and “intentional,” council members juxtaposed intentional dishonorable manslaughter with unintentional honorable manslaughter during the seventeenth century.98 Moreover, the council began to refer to circumstantial evidence in more detail than they had done during the sixteenth century.99 Starting in the late seventeenth century, we even find a handful of consilia that the council requested from the Antistes, the head of Zurich’s Church. The position of Antistes was held by a pastor with a doctorate in theology, however, who based his suggestions exclusively on the Old Testament rather than on ius commune.100 Such borrowing from ius commune methods apparently marked the beginning of a 97  I earlier conjectured that these cases would probably have been judged self-defense before 1500 as well, even though it is difficult to prove this from the records. 98  These references to the slayer’s intent will be discussed further in Chapter 5. 99  We find, for example, frequent mentions of the use of a lethal weapon as an aggravating circumstance. In a verdict from 1643, the council wrote that a slayer “had grabbed the knife in an irresponsible manner”; see StaZH A 17.3, Urteilbrief from June 12, 1651. 100  See StaZH A 17.4, 1692, letter from Antistes Antoni Klingler. The consultation of theologians in legal cases was also not uncommon in early modern Germany, as Alexander Kästner has argued. In his study of the prosecution of suicide in early modern Saxony, he found that pastors were occasionally asked to write recommendations which assessed the lifestyle of the victim; see “Experten für ein gutes Leben. Zur Rolle von lutherischen Pfarrern in Untersuchungsverfahren nach Selbsttötungen (Kursachen 1700–1815),” in Experten und Expertenwissen in der Strafjustiz von der Frühen Neuzeit bis zur Moderne, eds. Alexander Kästner and Sylvia Kesper-Biermann (Leipzig 2008), pp. 85–98.

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process in which judges experimented with ways of legitimating criminal justice with expert knowledge, but did not significantly impact upon the process of punishment.101 Judges’ decisions were the result of a complicated interplay between official attempts to apply objective categories and the patterns of private justice. The legal categories employed in the judgment of manslaughter were not intractable, but depended on various factors: the actual or alleged circumstances of the slayings, the power and influence of the respective parties, the punishment requested by accusers, and the understanding between the parties. From the sixteenth century, traditional forms of private justice were not displaced, but rather merged with those of official justice. The trend that began in the fifteenth century with the initiative of injured relatives raising accusations before the Ratsgericht continued within the setting of a revised trial procedure. Through this procedure, extrajudicial patterns of retaliation and restitution were granted an officially legitimate influence during the course of the trials. Part Two looks at how negotiations in manslaughter cases could function in early modern legal practice, focusing on the various ways in which council members, accusers and defendants could make use of trial and arbitration procedures to support their respective strategies of restitution or retaliation.

Part Two: Early Modern Negotiations before the Ratsgericht

Compensation through the Court: Procedure and Protocol During the beginning of the sixteenth century, the participation of injured kin in the prosecution of manslaughter was institutionalized in a trial procedure that mingled elements of the Klage and the Nachgang. According to this procedure, described in a statute extant from the sixteenth century, the trial had to be initiated by a Klage.102 If a homicide was committed and no accuser came 101  There was also an increased attention to the wounds inflicted on the victim, because seventeenth-century records frequently mention that an inquest had been held, and in some cases inquest records with detailed descriptions of wounds are extant. In the abovementioned case from 1692, the council even consulted a medical expert with the title of professor, although the sources give no reference to his academic affiliation. He not only described the victim’s wounds with Latin terms, but also criticized the attending physician as being “madly drunk” after he had administered the wrong treatment to the victim; see StaZH A 17.4, letter from Prof. Dr. Johannes Muralt from September 1692. 102  Thus pure Nachgangsverfahren in cases of simple or dishonorable manslaughter disappeared from the records. Unfortunately we do not have an exact date for this statute,

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forward, the council still claimed a fine. A trial was then initiated through a city official who acted as accuser.103 I have, however, only found one case in which this had been necessary. Witnesses could be selected by members of the city council, as was typical for a Nachgang. Yet slayers were also allowed to bring their own witnesses, and it is evident from the trial records that accusers could do so too. Following the initial accusation, three trial days were determined on which the accusation would be repeated and the slayer would be called from the steps of the city hall to defend himself. A slayer’s absence did not prevent his trial, as it did in sixteenth-century Württemberg, where trial proceedings were initiated if a slayer had fled but stopped once he had received permission to negotiate an agreement. In Zurich, trials were held and verdicts pronounced in the slayer’s absence. This custom of judging a manslaughter case across three trial days may have been in existence earlier if the trial was initiated by a Klage. We find reference to this custom in villages and cities within Zurich’s territory which possessed high jurisdiction, as well as in other areas of the Swiss Confederacy. In these areas, however, procedure was different, and its primary aim was to outlaw a slayer. If he did not appear at his trial day, judgment fell automatically to forbid that anyone should give him assistance, his goods were forfeited, and the death penalty awaited him if he returned to the area. This process of outlawing

although it probably originates from the first half of the sixteenth century. See Schauberg, Zeitschrift für noch ungedruckte schweizerische Rechtsquellen I, pp. 365–367 and Erich Wettstein, Die Geschichte der Todesstrafe im Kanton Zürich (Winterthur, 1958), p. 111/112. 103  The use of a public accuser resembled the procedure described in the Carolina in 1532. To what extent there was a mutual influence or at least to what extent the new zeal of the council to prosecute every homicide was due to the Carolina or due to indigenous development is difficult to ascertain. In comparison with the fourteenth and fifteenth centuries, the council had achieved a new level in the prosecution of homicide, bringing before its tribunal a category of cases that had previously been left to families: kinslaying. I have not found a single case of sibling or parent-child killing from either the fourteenth or early fifteenth centuries; evidently, the council refrained from investigating such cases with a Nachgang. Such cases were presumably resolved within the family, and so council members considered them to be the domain of male relatives. In the late fifteenth and sixteenth century, however, we find six cases of fratricide judged by the council, not perhaps a startlingly high number yet a clear sign that the council had begun to claim a more extensive authority.

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was called Verruf.104 In these areas there were thus no distinctions among various categories. It is likely, however, that the Zurich procedure developed out of the custom of Verruf. The continued differentiation between Nachgang and Klage by the Ratsgericht in the fifteenth century suggests that the procedure in its specific form as set out in the sixteenth-century statute probably evolved gradually during the second half of the fifteenth century before it took on concrete form in the 1500s. This trial procedure served fundamentally to underscore the authoritative power of the city council. The ritualized public calling of the slayer on the beginning of each trial day illustrated this authority, while the combination of Nachgang and Klage allowed the council to pursue a thorough investigation and to reconstruct the homicide. The sources suggest that this procedure was often conducted in its entirety and full formality.105 At the same time, the council showed a marked flexibility in adjudicating. While the statute describing the changed trial procedure asserts the importance of the testimony of the witnesses, it also stressed that the judge was free to render a merciful verdict. Conspicuously, it offered the judge more freedom to exercise mercy if the accusers decided not to plead for the death penalty. This statute thus ceded to the disputants a certain influence over the outcome of the trial. From the 1530s onwards, this continuing concession to accusers, who had previously been able to dictate part of the slayer’s punishment by choosing between blood vengeance or negotiating a settlement, may have functioned as compensation for the loss of the privilege of vengeance, allowing accusers to exercise a legal influence on the outcome of trial-based verdicts. Council members had thus created a forum that continued to allow accusers significant influence over the fate of the slayer. Since a detailed description of this procedure is lacking in the historiography, its course of events has to be pieced together through the so-called Urteilbriefe or “verdict letters,” which summarized the proceedings as well as the verdicts. More detailed information can be had through minutes of the various trial days. These were not official documents and were written in an informal, often somewhat illegible hand. They contain useful information, although regrettably few minutes of the proceedings survive. This section describes the standard course of proceedings in order to provide a context for

104  See Riggenbach, “Die Tötung und ihre Folgen,” pp. 144–159. The procedure also resembles the one described in a Württemberg report about local legal customs, mentioned in Chapter 1, p. 50, fn. 32. 105  There are several full protocols of the trial extant from the sixteenth century. These records describe what happened on each of the trial days.

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the subsequent discussion of how injured parties and slayers could utilize elements of the procedure to their advantage. The Urteilbriefe emphasize that it was the right of the victims’ relatives to bring an action and insist on this procedure. The Urteilbrief therefore stated regularly that the relatives had “asked for law and judgment.”106 Once they did so, the slayer recieved a citation or “court summons” that announced the date of the first Rechtstag (“trial day”). The Rechtstage took place at the city hall in Zurich. If the protagonists came from an administrative district within the Landschaft that had its own criminal court, the Rechtstage could either be held there or in Zurich’s city hall.107 During the sixteenth century, slayers rarely answered these summons, but chose instead to await the outcome of a trial at safe remove after having fled. As in Württemberg, it was also possible for Zurcher slayers to obtain Geleit, or safe conduct. The legal practice of Geleit is not as easy to interpret as it is in Württemberg, where it was regularly mentioned in the records of escaped slayers. The extant Zurcher sources contain few references, although it is mentioned more frequently in the minutes of the Rechtstage than in the formal Urteilbrief. However, these extant references to Geleit allow some speculative inferences about how this legal custom worked in practice.108 Geleit did not only safeguard the slayer from arrest and imprisonment, but also from the potential vengeance of the victims’ relatives. The brothers Füssli, for example, received a safe conduct in 1564 to protect them from “the friends of the victim to and from the law” (i.e. on the way to and return from the trial in the city hall). Schauberg explains that slayers were then accompanied to court for their protection.109 The Füsslis were also promised a safe conduct that protected them from being arrested by a city official. This was only a “Geleit zu den 106  “… recht und gericht angerufen …” See for example, StaZH A. 17.1., April 29, 1555. 107  A Rechtstag held at a court of the Landschaft was called Landtag. According to Katja Hürlimann, there was no particular system according to which the location of the trial days was decided. Based on evidence drawn from the Landschaft Kyburg, she speculates that pragmatic reasons might have influenced this decision, since Zurich’s council court met more frequently than the courts in the Landschaft; see Hürlimann, Soziale Beziehungen, p. 35. The criminal courts of the Landschaft might have sent cases to Zurich to get relief from an overflow of cases. We must assume therefore that the records of the Ratsgericht do not contain all the homicide cases which occurred in the Landschaft. 108  For a general introduction to the custom of Geleit in the Swiss confederacy, see Georg Robert Wiederkehr, Das Freie Geleit und seine Erscheinungsformen in der Eidgenossenschaft des Spätmittelalters. Ein Beitrag zu Theorie und Geschichte eines Rechtsbegriffs (Zurich 1977). 109  StaZH A 17.1, April 27, 1555. See Schauberg, Zeitschrift, p. 365.

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Rechten,” however, a safe conduct valid for their passage to the court, which ended after the end of the trial day.110 The city councillors evidently did not want to commit themselves to a verdict that excluded the slayer’s arrest and punishment. The Füsslis did not need to fear arrest, in the end, since they were acquitted at the trial. During the sixteenth century, only six slayers appeared at their trial day, all of whom were acquitted. Although Geleit is not mentioned in all of these six cases, it seems reasonable to assume that they had been granted a form of Geleit and that they had felt assured of a lenient verdict even though, like the Füsslis, they might not have been promised Geleit both “to and from the law,” as was customary in Württemberg. The majority of slayers chose to remain in exile, either because they could not obtain Geleit or because the Geleit they did obtain was less reassuring to them then it had been to those slayers who appeared and were acquitted. Perhaps social status played a role in how convincing the promise of Geleit could appear; the Füsslis belonged to a well-respected and influential Zurcher family, whereas their victim came from a poor family.111 But nor did slayers always choose to make use of a promise of Geleit. In 1602, Melchior Zimbermann, a slayer who was later acquitted, was offered both Geleit to and from the law, but did not appear at his trial day. Instead, he sent a letter containing his defense.112 During the seventeenth century, in a development that paralleled the change that took place in Württemberg, the number of escaped slayers decreased. Slayers were frequently arrested and imprisoned in the Wellenberg, Zurich’s prison located in Lake Zurich. Nachgänger examined the slayers there before the trial, often confronting them with witness testimony.113 Yet despite 110  See ibid. 111  For more information on the Füsslis, see Katja Hürlimann, “Füssli”, www.hls-dhs-dss.ch, 2006. The case will be discussed in more detail in Chapter 5. In other cases, the social discrepancy is less striking, but in several cases the slayer came from a well-respected family. See, for example, a case from 1562, StaZH A 17 1, where the defendant Mathys Ernst was a member of a wealthy family in Zollikon, a village, which belonged to Zurich. See Paul Guyer, Die Bevölkerung Zollikons im Mittelalter und in der Neuzeit. Ihre Zusammensetzung und ihre sozialen Verhältnisse (Zurich, 1946), p. 26. Another example is a case from 1563 (StaZH A 17 1, September 4), where the slayer Hans Petter von Fulach was a member of a noble family; see Martin Leonhard, Fulach, von, http://www.hls-dhs-dss.ch, 2005. 112  See StaZH A 17.2, 1602. 113  This was common practice during a Nachgang; see, for example, the case of Heinrich Schärer, StaZH A 17.4, October 1, 1692. See also Weibel, “Der zürcherische Stadtstaat,” p. 51 where he explains that Nachgänger examined defendants before the trial.

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the higher rate of imprisonment during the seventeenth century, the custom of Geleit may not have been completely discontinued. In 1681, the slayer Johannes Ulrich said during his examination that he had returned to obey the council and hoped for merciful treatment.114 Although the sources do not mention it, this slayer might have had some assurance of a safe conduct or of milder treatment from the council members. Higher rates of imprisonment indicate a change in the attitude of local constables or a greater willingness of bystanders to bring slayers to justice, although this depended on who was present. This was certainly not a straightforward development. Capture depended on the behavior and the attitudes of friends and families of both slayer and victim, as a case from 1611 illustrates. Heinrich Klöti had killed Felix Sennhuser during a knife fight in a tavern, and the tavern host and his wife, clearly well-disposed towards Klöti, encouraged him to flee. Klöti managed to escape, but was apprehended a short while later by Jegli Sennhuser, a relative of the victim who had also brought with him villagers who had been elected to serve on the village court. Together they bound Klöti to a couch in the tavern. This angered the tavern host, who accosted Sennhuser and those aiding him with the words “that even though they were sworn to serve the court, not everything that they did was well done.”115 Later, as he was unobserved, Klöti was freed from the bindings and escaped once again. Witnesses asserted that this had been the work of the tavern host, but luck continued to work again against Klöti as he was apprehended shortly afterwards by Jegli Sennhuser and the court officials, following which he was imprisoned in the Wellenberg.116 The question of how imprisonment affected a slayer’s reputation and honor is difficult to answer due to the lack of concrete evidence in the sources. In a letter from 1611, a defendant who was later freed from the suspicion of having committed a homicide complained that he had suffered dishonor from his arrest. Equally, however, he might have been referring to the fact that he was under suspicion of having committed a secret homicide, a murder, which was a dishonorable crime.117 I have found no evidence that slayers imprisoned after committing a manslaughter suffered lasting social stigma or shame. I have

114  See StAZH A 17.3, examination from June 10, 1681. 115  A 17.2, 1611, witness testimony from January 18, 1611, statement of Anders Wynmann: “… ob er schon ein geschworner, so syge doch nit alles recht was er thuoge …” 116  See ibid. 117  See A 17.2, 1611, letter from Hanns Heinrich Geßner to the council.

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found no surviving letters, for example, in which slayers pleaded to be released from imprisonment or to walk as a “free man” to their trial.118 With the help of the Urteilbriefe and extant minutes, we can infer the order of events which took place during the Rechtstage. According to the 1602 minutes of Melchior Zimbermann’s trial day, the day began with a form of attendance monitoring: the scribe noted the names of the accusers, in this case made up of the victim’s relatives along with their Beiständer and perhaps their Ratsredner, and added their request: that they had come to the court to demand justice for the death of their kin. Then the protocol noted the names of those who made up the slayer’s party. If neither the slayer nor his family had appeared at court, the protocol usually read that “no-one had come in his stead.”119 In Zimberman’s case, the slayer was absent, but his relatives had assembled at court. This frequently happened if the slayer had escaped. According to the Urteilbriefe, the slayer’s relatives regularly told the court that they did not want to “stand for” the slayer, i.e. be responsible for his action and take the blame.120 Instead, they routinely asked the accusing party for a ziembliche as opposed to a hohe Klage, and then turned to the council to beg for a merciful verdict. The expression ziembliche Klage, i.e. “moderate accusation,” meant that accusers were willing to abstain from a request for the death penalty and were willing to negotiate an agreement. If accusers raised a hohe or “high” Klage, by contrast, then they demanded the death penalty. Zimbermann’s father requested that the accusers would not plead “zestark”, i.e. raise a “strong” accusation, an expression that could be used interchangeably with the term “hohe Klage,” and begged for a lenient verdict. He additionally took the opportunity to tell the council members that his son had sent a letter to them which contained his defense as well as the names of the witnesses he wished the councillors to examine.121 In response, as the minutes of the Rechtstag note, the council agreed to send Nachgänger to these persons to obtain their statements in

118  I have also not found details about the slayers’ walks to the cityhall. The situation changed if a slayer was sentenced to death; for a description of a defendant’s walk to his execution, see Wettstein, Die Geschichte der Todesstrafe, p. 133. It was decided during the trial procedure if a defendant should be turned over to a “blood court,”; see Weibel, “Der zürcherische Stadtstaat.” 119  See for example StaZH A 17.2, 1601, Urteilbrief from June 17 for Hans Roggenmoser: “… noch jemands von seynetwegen … erschienen …” 120  Zimberman’s father told the council that since he was “a poor man” he did not want to stand for his son” (“… und wÿl er armer man will sich nit für den sohn instellen …”) StaZH A 17.2., minutes of the trial days from February 13, 1602. 121  See ibid.

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writing.122 Accusers were also allowed to bring witnesses, although it is not always possible to tell from the records which testimony came from the slayer and which from the accuser. The council could also send Nachgänger to investigate on their own and examine additional witnesses. After the parties had presented themselves, the first Rechtstag continued. The accusers now voiced their formal Klage, or accusation, which usually consisted of a re-telling of the events leading to the homicide from their point of view. The accusation ended with their particular plea or request, either a hohe or a ziembliche Klage. If they raised a ziembliche Klage, they usually concluded that they left the verdict to the council’s discretion.123 If the slayer was present, he could present his defense at this point. If he was absent, he was formally called by a town crier from the steps of the city hall to come to court.124 Subsequently, all parties left the room and the council heard the testimony of the witnesses.125 The first trial day commonly ended with the council setting a date for the next trial day. The statute provided that there should be a total of three trial days. During the sixteenth century, it had become common to collapse the second and third trial day.126 This saved the council time and effort and reduced expenses.127 These expenses had to be covered mostly by the parties, whereby the verdict either assigned them to one party or divided the cost between the parties. After the date for an additional trial day was set, the slayer received another court summons, and, in case of his continued absence, was again ritually called to attend the Rechtstag. I have, however, found no case in which a slayer had not appeared at his first trial day but then attended his second or third at the city hall. During the remaining trial days, the accusation was heard again and room was made to listen to additional witness testimony. In Zimberman’s case, his letter containing his defense and the testimony that had been collected at his request were read aloud during the 2nd trial day, which in his case was also 122  See ibid. 123  See, for example, StaA 17.2, December 11, 1609, Urteilbrief for Heinrich Koller. 124  The testimony could also be heard before the slayer was called, see Schauberg, Zeitschrift, p. 365. 125  The slayer’s relatives might be asked again at this point whether they wanted to act in place of the slayer. This was so in the case of the slayer Chilion Brunner, a question that his father declined (StaZH A 17.2, July 6, 1601). The exact order of events in legal practice is difficult to determine, because only the minutes offer a sequential report, and these are seldom extant. 126  See, for example, B VI 250, fol. 19v, 1527. Yet there were also cases where all three trial days were held; see, for example, B VI 254, fol. 37, 1527. 127  See StaZH B VI, fol. 31r., 1527.

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the last. The third trial day ended with the announcement of the verdict.128 The Urteilbrief then stated in many cases that the councillors “had done everything according to protocol and as precribed by the law.”129 Yet unless the slayer was acquitted, as was Melchior Zimbermann, the court’s involvement did not end on the last trial day. Council members acted subsequently as mediators and supervised the negotiation of an agreement. Such agreements could be mediated after the slayer had spent a year away from Zurich, which was part of the punishment imposed on him. In some cases, as we will see later in the chapter, agreements were also negotiated earlier or even while the Rechtstage were still taking place. It is therefore important to consider both the Rechtstage and the mediation proceedings as part of the procedure employed in the adjudication of manslaughter. These different procedural stages provided opposing parties with a forum where they could seek vengeance, restitution or reconciliation in a space supervised and monitored by the council members. The particular wishes and claims staked by the parties could influence the course that each of the different procedural stages could take. The following sections illustrate how opposing parties could position themselves during the Rechtstage and during the subsequent mediations in order to gain the support of the council members. Proceedings could be flexible, and did not always follow a set course. As we shall also see, council members were often willing to endorse the flexible handling of procedure. The discussion starts with examples of accusers bent on retaliation and illustrates how they could use the medium of the Klage during the Rechtstage or the subsequent mediation procedure to take a tough stand. A detailed record of the negotiations during a mediation from 1537 shows how a slayer could try to defend himself against his accuser’s campaign for retribution. Strategies of Vengeance: Hohe Klagen and Tough Bargaining The trial was an important stage in a series of interactions between opposing parties that could have manifold purposes. Depending on the state of the relationship with the slayer, accusers’ thirst for vengeance could dominate proceedings. There is ample evidence in the sources that emotions could run high during a trial. The 1610 case of the slayer Caspar Vischer illustrates in particular that the ire of injured kin could have serious consequences. In this instance, 128  See A 17.2, March 1, 1602. Unfortunately, detailed evidence about what usually happened during the second trial day, if there was one, is scanty overall, since so few of the minutes survived. 129  See ibid.: “… das wir alles nach Ablauf und Rechtens so erledigt haben …”

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one of the victim’s relatives reported that after the homicide, it was a miracle that Vischer had not been lynched by him and another relative right there and then.130 During a Rechtstag, relatives could voice their anger by choosing to raise a hohe Klage, a “high accusation,” in other words a request for the death penalty. Requests of this kind might also be put in writing in a letter of supplication before the trial days had even begun. Hohe Klagen dominated during the sixteenth century. This continued the fifteenth-century trend described earlier in this chapter. As we have seen, relatives generally ended their accusation with a demand that the slaying be treated as a dishonorable manslaughter, a type of killing which was increasingly punished with the death penalty. This demand can be interpreted as a move within a game of vengeance: the death penalty could satisfy the family’s thirst for vengeance, but this demand also raised their bargaining position with respect to subsequent negotiations. Once blood vengeance was granted to them by the council, injured relatives could use this threat to demand a high monetary payment. But even after the abolition of blood vengeance, a hohe Klage prepared the slayer for tough negotiations before an agreement could be reached. The hohe Klage might also function in the stead of blood vengeance; indeed, accusers sometimes made it quite clear that they were serious in wishing for capital punishment. When Mathis Gsell killed Blogk in 1613, the victims’ relatives claimed that they wished to raise the “highest” accusation, since he had killed their friend “without cause.”131 The Blogks made their position clearer still when they told the council at the first Rechtstag that they did not want to be in the same room with the relatives of the absent slayer unless they would consent to be punished in his place. Otherwise, they did not want to allow the slayer’s family to be present while they themselves proceeded with their accusation.132 In all likelihood, they were thus attempting to signal to the slayer’s relatives that they were not ready to negotiate and would insist on a hohe Klage. In this instance the accusers’ desire for retribution was later fulfilled, since the judges imposed a verdict of dishonorable manslaughter.133

130  StaZH A 17.2, July 1st, 1610, Jagli Melcher Stapfer’s testimony. 131  StaZH A 17.2, 1613, Urteilbrief from March 17, 1613; “… ohne einiche ursach …” 132  Ibid.: “… dargegen aber deß entlÿbten verwandten begehrt, deß thäters fründschafft irer klag annderst nit bÿwohnen zelaßen, es sÿge dann das sÿ den theter rechtlich vertreten welten …” (“… the victim’s family desired, however, that the perpetrator’s kin should not be allowed to be present during their accusation, unless they would legally take the perpetrator’s place …”). 133  See ibid.

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Most often, however, the hohe Klage resulted in a verdict of manslaughter, meaning that the interaction between the two parties had to continue. The punishment of honorable manslaughter was now much harsher than during the fifteenth century because the slayer had to spend a year in exile in addition to paying a fine. He could only re-enter Zurich’s territory if the relatives agreed to negotiate an agreement. This interruption in the social and professional lives of slayers was decisively different from the social consequences of manslaughter in the fourteenth and early fifteenth century, when a slayer—provided he paid his fine—could immediately begin negotiations with the relatives of the victim and return to his former station. From the sixteenth century, slayers thus became more dependent on the goodwill of their accusers. Accusers who had raised a hohe Klage and had remained dissatisfied with a verdict of honorable manslaughter could exploit the second stage of manslaughter proceedings as another opportunity to exact vengeance on the slayer. Accusers could, for example, insist on harsh terms during negotiations for an agreement. Depending on the relationship between the parties as well as on factors such as their respective social status, agreements could therefore vary widely as to the severity of their proscription. These proscriptions contained not only specifications of monetary compensation. Aside from such compensation for the family of the victim and donations for the salvation of the victim’s soul (a requirement that naturally disappeared after the Reformation) a settlement also aimed at forestalling further hostilities between the parties by requiring the slayer to avoid the company of the family of the victim. The slayer was typically required to avoid certain places, such as the quarters in which the family dwelled.134 These restrictions could be extended in order to circumscribe still further the movements of the slayer. In a settlement from 1508, the slayer Uly Fellder was told to avoid not only Zurich and its territory, but also the city and territory of Glarus. The circumstances of the negotiation that resulted in these particularly severe prescriptions remain unknown, but may well have been insisted upon by vengeful and perhaps also influential accusers.135 134  Such restrictions were typical for places outside of Zurich; see for example the agreement in Sonder Gonzenhauer’s case in Chapter 1 (HstA A 209 Bü 244, 1558). 135  Perhaps the victim Hans Weber had relatives there, but it is not clear from the sources. In addition Felder was required to avoid the villages of Castel, Utznach, March, Rapperswil and Schmerikon. The only mitigation of these severe requirements was that he be allowed to travel through the village Schmerikon, although he was forbidden to stay there overnight. Yet he was also allowed to travel through Rapperswil and spend the night there if he needed to, and was permitted to eat and drink at a place near the bridge in Rapperswil, see StaZH A 17.1, September 28, 1508.

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To quench a lingering thirst for vengeance, the family of the victim could adopt yet another tactic to make negotiations difficult. This involved lengthening a slayer’s exile as a form of vengeance by refusing to negotiate a settlement with him.136 In 1528, Heinrich Haldenstein, who killed Heini Bluwler in 1527, wrote to the council and entreated its members to convince Master Bluwler, the father of the victim, to agree to a reconciliation. The letter was sent after Haldenstein had already been in exile for more than a year because of the obstinacy of Master Bluwler, from whom he had “found no mercy.”137 In his appeal to the council he claimed to be “very much grieved and pained at heart” to be “away from his fatherland.”138 He assured the council that he would be obedient to them and promised that if his request was granted, he would always “conduct himself with propriety” so that the council members “would be pleased.”139 This case deserves further attention, for the simple reason that it supplies the only instance in which detailed records of the negotiation process have survived. In other cases, by contrast, only the agreement itself is extant. The Haldenstein-Bluwler settlement illustrates how an aggrieved father tried to exact his vengeance on a slayer and, in turn, the strategies available to the latter. The case also throws light on the role that the council judges played. In general, the harsh predicament in which slayers found themselves apparently satisfied the council’s increasing desire to demonstrate its judicial authority. Council members were not eager to humiliate further the slayer by insisting on especially harsh stipulations in the settlements. These stipulations were instead the outcome of a complicated balance between the desires of the parties and the council’s own claim to manifest its judicial authority. In their role as arbitrators, council members were thus willing to accommodate the positions of both slayers and accusers if the situation demanded it. The Haldenstein case shows that such balancing sometimes required skilful diplomacy. The victim Hans Bluwler was the son of the guild master Johann Bluwler, a member of the council himself, and part of an influential group of politicians

136  This tactic was also adopted by the family of Ludwig Heil’s victim in Württemberg in 1535 (HStA A 209 Bü 243, 1557); see Chapter 1, p. 65–67. 137  See StaZH A. 17.1, Haldenstein’s letter from 1528: “… doch hab ich by Meister Bluwlern … kein gnad fuonden.” 138  Ibid.: “… das so mich zum meersten und grösten beschwert unnd bekümbert unnd mir ze hertzen gadt … ich muos besorgen meidung mines vatterlands …” 139  Ibid. “… wil ich mich gepurlich unnd der massen hallten, das ir mine herren ein gefallen haben muessend.”

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close to the reformer Huldrych Zwingli.140 Bluwler was thus an illustrious member of society. Although no such detailed information is available regarding the slayer Haldenstein, we learn from the documents that he was a guild member and therefore must himself have been a respectable member of society. Master Bluwler, however, was apparently disinclined to grant Haldenstein respect or to show any kind of leniency. At his trial, he raised a “hohe Klage” and alleged that Haldenstein had “shamefully and sinfully killed his son, Younghanns Bluwler, stabbing him in the back without warning, without any necessity, cause, or reason.”141 Haldenstein had fled, and no letter is extant to give us a glimpse of his defense, but the council apparently rejected Bluwler’s harsh accusation and judged the case an honorable manslaughter.142 Haldenstein was sentenced to pay a fine of 20 marks and to spend a year in exile. Since this preceded the final abolition of blood vengeance, the right to violent retaliation was also granted to the victim’s family. Bluwler had evidently sought to vent his rage on Haldenstein by refusing to negotiate a settlement, and the sources indicate that at least one attempt on his life was made by a member of the victim’s family. As mentioned above, Haldenstein therefore pleaded with the council members in a letter written whilst in exile, begging them to help convince Bluwler to settle. In response, members of the council exercised their influence with their colleague, with the result that Bluwler finally consented. The settlement, however, contained exceptionally harsh conditions. Bluwler’s desire to harm Haldenstein was especially apparent in the last article of the proposed agreement, which specified that if he or some of his friends thought that Haldenstein had broken the agreement, he should again be banned from the town. Moreover, if he did not leave the town, then he would once again become a free target for Bluwler’s vengeance.143 In his answer, Haldenstein expressed his anxiety that he might unknowingly break the agreement because he did not “even know one third of the family,” further implying that he might already have been in danger from unknown relations. As he told the council, he had, in fact, already been

140  See Hans-Peter Stucki, Bleuler, Hans, www.hls-dhs-dss.ch, 2006. 141  StaZH B VI 250, fol. 30v: “… sinen sun Junnghansen Pluwler mit einem schwerth hinderrucks, unversehener sach, von leben zum tod gebracht hab, an alle nodt, anlass, oder ursach, schamlich unnd lasterlich …” 142  See ibid., fol. 34r. Slayers who had fled after their deed sometimes wrote a letter to the council to justify their homicide. Some of these will be analyzed in Chapter 5. 143  See StaZH A 17. 1, first draft of agreement between Haldenstein and M. Bluwler.

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attacked in Kappel by a certain Felix Pfister, who had struck him with his weapon even though he had been completely ignorant of his intentions.144 The agreement proposed to exclude Haldenstein from important social events, such as private or public festivities in Zurich, as well from the territory occupied by several villages along the lake. In addition, he would be forbidden from frequenting six of the twelve guilds in in the city. This effectively amounted to near-complete social exile, since guilds dominated politics and social life and an individual’s respectability depended heavily upon the manner in which one was associated with them. To complete the humiliation, Bluwler requested that Haldenstein be banned from practicing with a gun in the town square, and that he avoid the major bath houses and hospitals, and be content to visit those away from the center of Zurich.145 The council members appointed to arbitrate this settlement were apparently uncomfortable with these conditions, as indicated by the fact that, after Haldenstein remonstrated with them by letter about their harshness and perhaps also in remembrance of his plea in his first letter of supplication “to do their best for him,” they laid down their office as arbitrators and appointed a new committee.146 The situation was clearly delicate: the conditions demanded by Master Bluwler were extreme, and yet he was an influential colleague whose desire could not easily be ignored. But Haldenstein was also a respectable member of society himself, one who had already been kept longer in exile than was required, and whose pleas for intercession the council members had accepted. For his own part, Haldenstein also showed himself to be an effective and clever advocate. This case is important both because it gives us a glimpse of the politics behind a negotiation, and points towards the kind of confusion that could emerge over the conditions appropriate for settlements in the 144  StaZH A 17.1, Haldenstein’s letter in response to the first draft of the agreement: “… auch so ist der fruinden so fil, der ich nit den triten teil beken….” (“… there are so many relatives, of whom I do not even know one third …) “…. damit und es mir nit gang wie zu Cappell, da mich der Felix Pfister uber sin geschwornen eid nach euer ordnung mit einer hallbarten zu boden schlůg …” (… so that I do not fare as in Cappell where Felix Pfister struck me down with his helbard against his sworn oath and against your laws….”). The letter clause implies that Pfister was one of Bluwler’s relatives who sought to execute blood vengeance. Haldenstein added a somewhat puzzling clause that Pfister had struck him “against his sworn oath and against the city’s statute.” This could mean that Pfister had been in a state of sworn peace with Haldenstein or that he was not closely enough related to turn against Haldenstein. 145  See ibid., first draft of agreement between Haldenstein and M. Bluwler, articles 5 and 6. 146  See ibid., Haldenstein’s response to first draft of agreement: “… und thůnd mir das best …”

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period immediately following the Reformation. The Reformation marked a decisive change in the terms of settlements because it made the donations for the salvation of the dead soul superfluous. Yet not all relatives were immediately convinced that such offices were no longer necessary, exemplified perhaps by Master Bluwler, in spite of the fact that he was an avid proponent of the Reformation and a friend of Huldrych Zwingli. In one of the articles of the proposed settlement, Bluwler demanded that Haldenstein pay him 200 gulden in compensation for the loss of his son, far more than usual, noting that he intended to offer a portion of this sum to the poor.147 Haldenstein replied that he was willing to make good Bluwler’s losses and to pay him appropriate compensation. At the same time, however, he shrewdly denied that there was any necessity to make charitable contributions to the poor, implying that Bluwler’s concern for the poor reflected pre-Reformation attitudes towards salvation.148 If God advised him well enough, he argued, he could himself distribute money among the poor, adding that “it is not our belief that the dead soul can be helped, neither with 200 gulden nor with 2000 gulden“—effectively an accusation of pre-Reformation beliefs on Bluwler’s part.149 Haldenstein’s clever appeal to sound Protestant doctrine must have carried weight. It was perhaps the reason that one of the members of the newly appointed committee of arbitrators was none other than Huldrych Zwingli, the Zurich reformer himself.150 This conflict between Bluwler’s claim and Haldenstein’s reproach that this demand was not in keeping with Reformation values may have perplexed the council, pushing them to the conclusion that only the highest religious authority in town could decide this puzzle. Zwingli was apparently moved by Haldenstein’s reasoning. The desire to maintain sound doctrine might have been stronger than a charitable concern for the poor: in a newly negotiated settlement, Haldenstein was only required to pay 110 gulden to make good the costs incurred by Bluwler through his son’s 147  See ibid., first draft of agreement between Haldenstein and M. Bluwler, article 9. 148  For an analysis of changing attitudes toward the dead during the Reformation, see Craig Koslofsky, The Reformation of the Dead: Death and Ritual in Early Modern Germany, 1450– 1700 (Macmillan, 2000). 149  StaZH A 17.1, Haldenstein’s letter in response to the first draft of the agreement: “… Es ist ouch uenser glaube nit das den abgestorbnen selen geholffen moege werden, weder mit zweyhundert gulden noch mit zweytusend gulden …” 150  That Zwingli served on such committees was not unusual, he was intricately bound up with the political life of the city and, as a friend of Master Bluwler, might have some influence over him.

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violent death, while no further mention was made of additional provisions for the poor.151 Haldenstein had thus effectively sabotaged Bluwler’s claims for exorbitant compensation by appealing to religious doctrine. But the newly negotiated settlement was less harsh and humiliating in other ways as well. Perhaps the arbitrators felt bound by Haldenstein’s previous pleas for their merciful intercession. For council members, one of the important ideological values in the supervision of settlements was the opportunity to display their paternal benevolence. This also brought with it certain responsibilities, however, and portions of Haldenstein’s rhetoric seem to appeal directly to this promise of mercy. Before rejecting Bluwler’s demand for money to be distributed among the poor, Haldenstein tried to excite the arbitrator’s compassion for his wretched state. He had spent years in exile, he pointed out, and thus already had “had great costs.” Exile, meanwhile, had only been endurable in “the expectation of Bluwler’s mercy.” As he continued, “had I known that I had to expect such strictness, I would have been more careful with my money and used it to settle elsewhere, however hard it is for me to be banned from my fatherland.”152 Even though he did not directly accuse the council of harshness, his emphasis on the merciless treatment he had already suffered implied that it had fallen short of the promise of benevolent intercession.153 But when Haldenstein turned to address the individual conditions that Bluwler had devised for him in the first settlement, his indignation got the better of his earlier, more submissive tone. He angrily rejected the stipulation that he should be banned from social festivities, writing “I will not do this. What if I were invited to a wedding or to a festivity at my guild? Should I not be allowed to join in? Should I thus be treated like a leper?”, the latter term forcefully conveying that he considered the conditions for his agreement tantamount to social death.154 Haldenstein further bridled at Bluwler’s demand that he avoid 151  See StaZH A 17.1, August 10, 1530, final agreement between Haldenstein and M. Bluwler, article 10. 152  Ibid., Haldenstein’s letter in response to the first draft of the agreement: “… het ich ouch gemeint soelcher strengen artikeln, hete mus erwarttet sin, ich hett von anfang mines unfals geluogett wo ich mich gesett hett, und soelich verzert gelt zuo beserm nutz gebrucht wie wol mir schwer min vaterland zemiden wer …” 153  Such considerations might especially have moved Zwingli who must have felt bound to achieve a reconciliation. 154  StaZH A 17.1: Haldenstein’s letter in response to the first draft of the agreement: “… will ich nit an inen, den ich moecht an ein hochzitt geladen werden, des glich andern jarstagen uff miner zunfft, soelt ich nit mit inen doerffen … muesd ich allso gesuendert werden

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half of Zurich’s twelve guilds, arguing that this condition was far too harsh since he had friends in a variety of guilds who might wish to invite him to social occasions. He thus agreed to avoid only the single guild in which Bluwler was master.155 Another condition emphatically rebuffed was the demand that he refrain from practising with his gun in the centre of the city when Bluwler and his family were present. The size of the family and the apparent fondness of its members for shooting threatened to make this condition tantamount to a complete prohibition of Haldenstein practising marksmanship in the city. Haldenstein asserted that “he was not able to comply with this,” because “he had a great lust for the gun.”156 To convince the council of the absolute necessity of his continued practice, he wrote that in case “my lords found themselves in an emergency” (probably referring to an attack on the city), there was no other weapon that “he could use as deftly or that he loved as much as the gun.”157 Haldenstein further asserted that the request to avoid certain bathhouses was especially harmful to him. In a letter he argued that “I do not want to do this. It is too painful. What if I become very sick and need care?”158 Haldenstein’s emphatic appeals to the council were partially successful. The conditions in the final settlement were a mixture of compromises between the council’s desire to display their authority as benevolent arbitrators, their need to make concessions to Bluwler’s desire for retribution, and the necessity of negotiating between Bluwler’s high social standing and Haldenstein’s own lower, but nonetheless respectable status. In the end Haldenstein was allowed to frequent all guilds with the exception of two, and was allowed to continue wie ein sunder siech …”. For a discussion of the social function and importance of guild sociability in late medieval and early modern Swiss and German regions, see Christian Casanova, Nacht-Leben. Orte, Akteure und obrigkeitliche Disziplinierung in Zürich, 1523– 1833 (Zurich, 2007), p. 79, Markus Brühlmeier and Beat Frei, Das Zürcher Zunftwesen (Zurich, 2005), Illi, Constaffel, or Katharina Simon-Muscheid, “Zunft-Trinkstuben und Bruderschaften. ‘Soziale Orte’ und Beziehungsnetze im spätmittelalterlichen Basel,” in Geschlechtergesellschaften, Zunft- und Trinkstuben und Bruderschaften in spätmittelalterlichen und frühneuzeitlichen Städten, eds. Gerhard Fouquet, Matthias Steinbrink and Gabriel Zeilinger (Ostfildern, 2003), pp. 147–162. 155  See ibid., Haldenstein’s letter in response to the first draft of the agreement, response to article 2. 156  Ibid.: “… kan ich nit wol an inen, den ich han ein lust zer buechsen …” 157  Ibid.: “… wan min herren not an gieng, wuest ich kein besser gwer unt mir bas gliebte zebruchen, dan ein buechs …” 158  Ibid.: “… wil ich nit an inen were mir ouch schmertzlich, moechte mir ouch krankheiten bresten zuovallen, das ich scherer und badern nottürfftig wer, und muesste mich dan deren behelffen …”

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shooting in the city square, except on Sundays for the next year. He was forbidden to frequent public or private festivities, but was allowed to join a wedding if invited as well as the annual festivities of his guild if he did so in a modest and obedient manner.159 Article four shows further evidence of compromise. In the initial agreement this article required Haldenstein to leave any tavern immediately if relatives of the victim were present when he came in, a standard condition of almost all such agreements in the Swiss Confederacy. It typically went on to stipulate that if a slayer was already seated in a tavern when the victim’s relatives entered, he was allowed to stay so long as he did not disturb them in any way. The article proposed by Bluwler amended this, requiring Haldenstein to leave any tavern that he or his children entered.160 Haldenstein protested that such reversal of custom was not “appropriate.”161 The arbitrators must have agreed, although they also needed to accommodate Bluwler in some way too. The final agreement held that Haldenstein could remain seated if children of the family entered, but should leave if Master Bluwler himself came into the building, effectively combining an amelioration of the former condition alongside a reversal of tradition and custom.162 It would be interesting to know how Haldenstein fared after his return to Zurich and whether eventually there was a more thorough reconciliation and a relaxation of these demands. Unfortunately, the remaining sources contain no further references to these protagonists. Both trial procedure and mediation proceedings allowed accusers to take a tough stance vis-a-vis the slayer. Vengeance could be sought through a hohe Klage as well as through harsh demands during negotiations for an agreement. While accusers bent on retribution could thus utilize the procedure for their ends, slayers could benefit from council members’ role as mediators seeking to establish peace after a verdict had been pronounced. But accusers were not always bent on vengeance; often, restitution was their primary object. The search for restitution led to different strategies, which might affect or even abbreviate the order of proceedings. As the following discussion shows, council members themselves often supported such flexible ways to gain restitution

159  Ibid., see final agreement between Haldenstein and M. Bluwler, articles 2, 5, 7. 160  See ibid., first draft of agreement between Haldenstein and M. Bluwler. 161  Ibid., Haldenstein’s letter in response to the first draft of the agreement, response to article 4: “… mein ouch es sey nit zimlich …” 162  See ibid., final agreement between Haldenstein and M. Bluwler, article 4. In every other agreement that I have found in the archive and that contained this condition, it was phrased in the standard manner.

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because these met with an increasing desire on their part to save time and expenses during the resolution of manslaughter cases. Reconciliation Efforts: the ziembliche Klage and Early Mediation The judicial apparatus available to the family of a homicide victim offered various means of interacting with the slayer. Instead of a hohe Klage, the relative of the victim could raise a ziembliche Klage and in doing so signal their willingness to reach an agreement. In 1577, the family of the victim Koelliker asked simply that the slayer Braendli be punished “as his deed deserved.”163 The family thus left the “slayer’s punishment to the discretion of the council”, a phrase that was a routine formula in a ziembliche Klage.164 Often, accusers even explicitly stated that they wished for an agreement. The father of the victim Jacob Fenner asked in 1602 that his widow and children “receive compensation for their grief, harm and the costs that they had incurred.”165 In Fenner’s verdict, the council members explicitly noted that while they had considered the circumstances of the slaying in their evaluation of the case, they had also taken into account “that the slayer’s brother and his relatives had convinced the brother and the family of the victim to raise a mild accusation.”166 The latter statement is interesting, since it indicates that negotiations between the parties had taken place prior to the trial. A slaying divided the wider circle of people surrounding slayer and victim into factions. As we assumed earlier in the case of Württemberg, we must suppose that these groups came together quickly in the aftermath of a killing. Even before the trial days, slayers wrote letters of supplication and gathered the support of friends, family, or local officials to send petitions on their behalf. In all likelihood, and as this verdict suggests, they also probably tried to contact the victim’s family and gage their attitude. In the case of Koller and Kutler from 1609, the victim himself might have spurred on such interactions. The Urteilbrief mentioned that he had forgiven the slayer before dying and asked his relatives to refrain from a hohe Klage and raise a ziembliche Klage instead.167

163  StaZHA 17.1., December 23, 1577: “… nach der größe und schwere der that …” 164  Ibid.: “… setzen es meinen herren anheimb …” 165  StaZH A. 17.2, 1602, Urteilbrief from February 17: “… zůergetzung ihres empfangnen leÿdts, schadens und costens nach gstalt der sachen zůbedencken.” 166  Ibid.: “… das deß entlÿbten brůder unnd verwandten sich durch des theters brůder unnd frünndtschafft, zů einer milten klag bewegen laßen …” 167  Se StaZH A 17.2., 1602, Urteilbrief from December 11, 1609.

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It was, of course, to the slayer’s advantage if accusers raised a ziembliche Klage, and slayers or their relatives therefore asked for it routinely. If relationships had not advanced satisfactorily prior to the trial, slayers might be prepared to take desperate measures. In a case from 1661, for example, the family of the slayer Hans Seitz used the first Rechtstag to initiate the public staging of the reconciliation process. Just as the injured family was prepared to voice their accusation, the Seitz family asked that the council permit them to talk to the injured party. The council agreed to this, and Seitz’s relatives were allowed to address the friends and family of Rudolf Vogel, the victim. The scribe recorded that the Seitz family “did not talk so much” as voice their distress in front of the Vogels, so that “in the beginning there was nothing to hear but great lamenting, bewailing, moaning and crying, which was pitiful to hear.”168 The Seitz family then asked both the injured relatives and the council for forgiveness and mercy, pointing out that their son also had bemoaned “his mistake” with “great sighs and lamentations.”169 In response, the family agreed to abstain from their accusation and joined with the slayer’s family to beg the council members for mercy on his behalf.170 In this instance the slayer’s family may have used this strategic moment to change the mind of relatives who had been closed to their requests beforehand, and so could, perhaps, be shamed into cooperation in front of the judges. It is also possible, of course, that this strategy was a show arranged beforehand among the parties to convince the council to impose a fine and allow the negotiation of an agreement. Accusers prepared to raise a ziembliche Klage looked at the trial not so much as a means of vengeance but as the first stage of a process leading to an agreement. Depending on how far the understanding between the parties had progressed, such agreements could be less severe than that which Haldenstein had to contend with. In a settlement from 1581 between Poly Weiss and the relatives of his victim, the sources indicate a prior understanding between the parties. The subsequent terms were mild: Weiss paid monetary compensation, but his movements were not restricted.171 The agreement in the aforementioned case of Brändli’s slaying of Koelliker in 1577, where the Koellikers had raised a ziembliche Klage, stipulated a sum of money, while the only precaution against 168  StaZH A 17.3, January 20, 1661: “Ist es statt redens von ihnen anfangklich anders nuetzit anzuhoeren gewesen dann ein großer jammern, schrei, weheklagen und betrauern, also dass es gwusslich gantz erbärmklich und mitleidenlich anzuhoren gewesen.” 169  Ibid.: “… mit großem Seufzen und Wehklagen … seinen Fehler …” 170  See ibid. 171  See StaZH A 17.1, December 17, 1582.

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further hostilities between the families was that he should avoid the tavern in Talwil for two years because it belonged to the father of the victim and leave any tavern if the family of the victim was seated there, although he was allowed to stay if he was there before they entered.172 The sources show varying scenarios in which the ziembliche Klage could play out differently during a trial. The rhetoric that injured parties used when they formulated their accusations provides clues to the state of relations between the parties. Koelliker’s family had, for example, not included any recriminations of the slayer in their accusation. But they also used ‘middling’ expressions of accusation which fell somewhere between incrimination and forgiveness. Even if accusers came to court already prepared to raise a ziembliche Klage because extrajudicial negotiations before the trial days had already advanced satisfactorily, they might take the opportunity to use the Rechtstage to express their lingering feelings of grief and resentment towards the slayer. Accusers’ statements could therefore both denounce the slayer’s actions and offer forgiveness. After Jacob Vogel had killed Georg Meyer in 1622, the remaining members of the Meyer family refrained from a hohe Klage, but blackened the slayer’s actions in their version of events before telling the council how they would plead. In their statement, Meyer’s family described the slayer Jacob Vogel as an aggressive man. In the events leading up to the slaying, Meyer had made peace between Vogel and a number of other Zurchers. But Vogel had been discontented afterwards, and had complained that his adversaries had not hit him like “honorable people.”173 His ire then turned towards the peacemaker, leading Vogel to insult Meyer and those with whom he had first quarrelled “with wild, inappropriate words” and to threaten them by pointing out that he still

172  The agreement also underscored that Brändli should live in Talwil “as becomes an honorable man” (… alda husen und werkhen wie einem biderman zuostad …” A 17.1, August 7, 1579). This unusual emphasis that the agreement did not impinge on the slayer’s honor was perhaps due to the social prestige of the slayer’s family. Both parties lived in Talwil, where the Brändlis were a significant family, its members having often held important positions such as the office of Untervogt or Amtmann, local administrators in the service of the council. The victim was, in fact, the son of the current Untervogt; see Hans Jakob Zwicky, Chronik der Gemeinde Thalwil (Thalwil, 1995), p. 85. It is true, however that the slayer also came from an important family. According to Zwicky, the Koellikers had long exercised the office of administrator of the farms of the nearby monasteries of Muri and Wettingen; see ibid. 173  StaZH A 17.2, 1622, Urteilbrief from September 19: “… das sÿ inne nit geschlagen wie redliche lüth …”

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carried a gun.174 When the others asked him what he meant by this, he shot Meyer, killing him immediately. When the case came to court, accusers from the Meyer family mentioned that they would be fully justified in bringing Vogel before the law and asking for the appropriate punishment of such “violence and evil-doings.”175 But “since the deed had not been done out of hatred or envy,” but was the result of the slayer’s “heedless spirits,” and because the slayer had amicably negotiated an agreement with them, they offered to forgive him and leave it to the councillors “to decide the punishment.”176 Although they softened their original description of Vogel, the victim’s family still portrayed him as an aggressor who deserved a harsh punishment, before juxtaposing this portrait with their own readiness to forgive. This strategy might have assuaged a lingering thirst for vengeance, even though they had officially relinquished their right to raise a “high accusation.” By describing him in this way before the court, they at least had the satisfaction of painting the slayer in a disadvantageous light and promoting the reputation of their deceased son, who had been killed shortly after the act of making peace. In this instance, however, the slayer took a similar opportunity to add his own gloss to the version of events described before the council and to protest his good and amicable relationship with the victim’s family. First, he pointed out that he had not provoked the dispute which Meyer had tried to bring to an end. Vogel related how he had admonished three peasants who “were yelling wildly and employed in mischief-making” by telling them “that they would be better off praying.”177 One of the peasants told him “to fucking mind his own business and stick his words up his ass.”178 Vogel retorted that “he would like to blow a bullet up his ass.”179 Vogel then described how, even though Meyer had indeed made peace between them, Meyer had in fact hit him in the process and so had forced him to defend himself.

174  Ibid.: “… mit wüsten ungebürlichen worten …” 175  Ibid.: “… söllichs gewalts und frefels …” 176  Ibid.: “… Dieweil unnd aber dieser that us dheinem vorgangenen neÿd und hass ervolget, sonder uß unbedachtem mut … beschechen … unnd er sambt seÿnen mitthafften gfruendten und verwanten sich hierumb inn freüntlichkeit … mit seÿn Vogels herren vatter verglichen. So wellind sÿe hiemit von irer klag stohn dem Vogel dieser thatt verzeÿhen unnd also uns die gantze sach darüber fernders zuerkennen, heimbgestelt haben …” 177  Ibid.: “… welliche mit jolen und juchßen eben ein wild wesen geführt habind … es were weger, das seÿ … bettetend …” 178  Ibid.: “… was es inn gheÿe, er sölle im (reverenter) inn das hinder blasen …” 179  Ibid.: “… er dörffte im wol mit der kugelen darÿen blasen …”

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At the end of the proceedings the city council imposed the regular manslaughter fine, evidently having decided that Vogel had told the truth: in other words, that he had been attacked and insulted by Meyer before he had retaliated.180 Seitz’s family must have anticipated this verdict; they probably knew that their relative had not been blameless, and the verdict also corresponded with their own wishes since they were willing to negotiate an agreement with the slayer. But reconciliation came at the price of mutual recriminations; expressions of amity and reconciliation still overlaid latent hostilities. Some families chose standard phrases to indicate their view of the seriousness of the crime, but abstained from using the adjective “high” in their accusations. The family of the victim of the slayer Arkant in 1604 accused him “most seriously” (“ernnstlichen”) a formulation that often accompanied the expression hohe Klage, but did not proceed to use this latter term. Instead, the Urteilbrief stated that “if we [the councillors, my words] chose to be merciful, they would not oppose it.”181 In 1555, the family of the victim Hans Kleyn von Bonstetten told the council that they would have liked to raise a hohe Klage, but because they had little money they could not do so and hoped instead for financial compensation.182 During a Rechtstag, parties thus had an opportunity to vent and express a variety of claims and attitudes. In comparison to the sixteenth century, ziembliche Klagen became more common during the course of the 1600s. This development may have been related to a decline in the execution rate; while 33 slayers were executed during the sixteenth century, only 15 were sentenced to death during the seventeenth.183 Whether or not this contributed to a diminishing of the attractiveness of a hohe Klage is difficult to determine. There is, however, a definite trend from the late sixteenth century in which parties increasingly signalled their willingness to negotiate an agreement with the slayer early on in the trial. Sometimes this willingness could result in a curtailment of procedure. An early example is a case from 1585, where the family of the victim appeared at the trial day but relinquished their right to accuse the slayer because they had already come to

180  See ibid. 181  StaZH A. 17.2., Urteilbrief from January 4, 1604: “… so wir dann darunder dem theter etwas gnad bewÿßind, darwider wellind sÿ nit sÿn.” 182  See StaZH A.17.1, Urteilbrief from April 27, 1555. 183  See Weibel, “Der zürcherische Stadtstaat,” p. 52, who describes a general decline in the execution rate during the seventeenth century.

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an agreement with him.184 Recognizing this agreement, the council stopped the trial, judged the slaying an honorable manslaughter, and specified that the slayer was to pay the customary fine and spend a year in exile. Another official “verdict letter” (Urteilbrief) from 1602 described an abbreviated procedure for a homicide that had occurred in the Herrschaft of Greiffensee, an administrative district within the Zurcher Landschaft. The Urteilbrief stated that the family of the victim Cunrat Fischer “had not insisted on the law and the customary trial days because the manslaughter had been a lamentable misfortune,” thus refraining from drastic recriminations against the slayer.185 Before the Vogt had set the dates for the trial days, there had evidently been contact between him and the victim’s family who had signalled their readiness to forego their accusation. At this stage, the Vogt must have consulted with the council in Zurich. It was customary for Vögte to send a report concerning homicide or other offenses to the council to ask how to proceed, just as was the case in Württemberg. As a result, the family was allowed to negotiate an agreement with the slayer without any prior Rechtstage, although the council reserved the right to assign a fine. This negotiation took place “through the mediation of our Vogt of Greiffensee and other honest people.”186 After a settlement had been agreed upon, the slayer’s father and his Beistand appeared before the city council and begged the judges to show mercy as far as his incurred fine was concerned, and “to open their land to him again,” since he had fled after the slaying.187 The phrase “to open their land” can be paraphrased as “to allow a slayer to return to Zurich’s territory”. Hager’s family added that the victim’s family had agreed to this. The council members agreed to this request. Instead of the customary year of exile and the 20 mark fine, Hager was permitted to return instantly and required to pay only half the sum.188 Having been involved in every step of the proceedings (including the arbitration), the councillors and their representative, the Vogt, had thus demonstrated their judicial authority. At the same time, they had also reacted flexibly to the request of the accusers in order to shorten the course of the procedure. 184  See the case of the slayer Heinrich Uezicken who killed Hans Wächter; StaZH A 17.1, 1585. 185  StaZH A 17.2, Urteilbrief from April 28, 1602: “… unnd daß sich dieser todfal uß leidigem unglück zuogetragen, nit uff das Recht unnd die gewonlichen Landtag getrunngen….” 186  Ibid.: “… durch unnderhandlung unnsers Vogts zuo Greyffensee und anderer ehrlicher lüthen …” 187  Ibid.: “…. ime unnser land widerumb ufthůn wellind. Wie dann deß entlÿbten fründt das­ selbig wol lÿden mögind …” 188  See ibid.

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In 1606 Jacob Wirt killed Hans Neuweiler from Coblentz, a small town in Baden, an administrative district where government was shared by all members of the Confederacy. The Urteilbrief of the council allows us to retrace the proceedings in his case. With the help of the councillors of Klingnau, another town in Baden, the two families negotiated an agreement after the homicide. Consequently, the victim’s widow promised not to raise a legal accusation and agreed not to hinder Wirt’s work and travel in the vicinity.189 After this agreement was written and officially sealed by Klingnau’s councillors, Wirt’s parents, wife and other friends and relatives appeared before the city council in Zurich and asked for merciful treatment for their compatriot. They asked that, in consideration of the “lamentable unlucky accident” and because the Neuweiler family “had agreed to negotiate a settlement”, the council would show mercy and remit the punishment of a year-long exile so that Wirt’s work would not “suffer great and injurious disadvantages.”190 After “listening to the entreaties of Jacob Wirt’s parents, wife and relatives … and after hearing the reading of the witness testimony that had been collected by the Vogt of Eglisau [an administrative district within the Zurcher Landschaft where the slayer lived]”, the councillors agreed to this request.191 The slaying was therefore judged an honorable manslaughter, and while Wirt was required to pay the fine of 20 marks, he was able to forego spending a year in exile “on account of the work he does as an artisan.”192 As in the case of Cunrat Hager, the trial procedure had been abbreviated. No Klage had been raised, and only the slayer’s party had appeared before the council at the city hall. As in the previous case, the council had agreed to change the customary verdict to accommodate the wishes of the parties. It is important to note, however, that even though the Rechtstage had been waived in both these cases, some stages of the process had taken 189  A 17.2., Urteilbrief from April 26, 1606: “… darbÿ auch dem genannten Wirten frÿgen sichern Handel und Wandel an allen Orten und enden und mengliches halber unverhindert vergundt und gelassen …” 190  Ibid.: “… wir welten in ansehen desselben und des leidigen unglueckhafften fals, auch das des abgelÿbten Neuweylers Verwandte, inn Betrachtung des Unfals, sich auch guetlich finden und die sach wie gehoert vertragen lassen, im Jacob Wirten die vergangene That nit zum höchsten rechnen, sonders uns ueber die sach nach gnaden erkhennen und ime des leistens oberkeith wegen welliches ime seines handwercks gwues und erhaltung halber zuo grossem Nachteil schaden und verderben reichen wuerde, gnedicklich erlassen.” 191  Ibid.: “Und wann nun wir, des ermelten Jacob Wirts eltern, ehefrauen und verwandte inn irem fürbringen und ernstlichen bitten verstanden, unnd darnebent auch die khundtschafft, so durch unnseren getrüwen lieben burger und obervogt zu Eglisau…. gehört …” 192  Ibid.: “… unnd inansehen sÿenes handtwerkcks und der arbeit und werken so er underhanden hat …”

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place, since the council members had started an investigative Nachgang and had sent their Nachgänger out to collect witness testimony. Nor did the council relinquish its right to punish the slayers for their breach of the city peace, even if they had shown some flexibility as far as the exact sentence was concerned. While the full course of manslaughter proceedings underscored judicial authority and constituted an official medium through which the various stages of reconciliation between the parties were conducted, the ultimate goal was to reach an agreement between the parties which guaranteed as long and lasting a peace as possible. This pragmatic goal apparently predominated during the seventeenth century, which can explain why council members were agreeable when it seemed a realistic possibility. This was all the more true when a swift agreement promised to save time and reduce the costs of proceedings, which could rapidly accumulate during the course of the Rechtstage. Thomas Weibel has argued that council members took steps to reform the court system during the seventeenth century to make trials less expensive and time-consuming. One particular change in civil proceedings saw council members restricting the number of judges involved in sentencing a suit. Council members also required judges to bring these suits to a close within one month.193 Within the area of criminal jurisdiction, the Zurcher council also abolished the elaborate judgment day held after a trial in a blood court in favor of a shorter announcement of a verdict in the city hall.194 The custom of collapsing the second and third trial day, already in practice during the sixteenth century, also became even more common during the course of the seventeenth century. Some sources also indicate that council members and local authorities sometimes went further and actively encouraged reconciliation instead of a trial. In 1645 a slaying took place in Eglisau, a district in the Zurcher Landschaft that might also have been categorised as an accident. Jacob Hueberlin, an official in the service of the earl of Sultz, who governed over a small territory adjacent to that of Zurich, killed Galli Angst, who lived in Eglisau. Hueberlin had killed Angst in a tavern, accosting and provoking him apparently without cause, and in the resulting tussle Angst was mortally wounded by the other’s knife. Hueberlin claimed the incident had been an accident, and that Angst had fallen into the knife hanging at his side. Witness testimony must have confirmed that Hueberlin had not drawn the knife, because in the agreement that was later negotiated, the slaying was officially termed an accident.

193  See Thomas Weibel, “Der zürcherische Stadtstaat,” pp. 55–56. 194  Ibid., p. 51. The custom of the endliche Rechtstag lasted a while longer in the Landschaft.

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Whether unintentional or not, however, Angst’s family was prepared to make life difficult for Hueberlin.195 When the latter was arrested and examined the day after Angst’s death, he displayed grief and anxiety. Insisting that he did not remember anything, he declared that he would like nothing better than to compensate the family of the deceased. He begged the Vogt to support him in view of the fact that the relatives meant to raise a hohe Klage against him and accuse him as a murderer. The Vogt asked Zurich’s council how he should fare, “in order to best help the family of the deceased.”196 Zurich’s councillors must have ordered the Vogt to help promote a reconciliation, since a few weeks later, the Vogt assembled representatives of both families to settle the case by agreement.197 The injured family had apparently relented; perhaps they had wanted to raise their bargaining position by first taking a hard line. Reconciliation might not have been completely heartfelt, since the slayer asked during the negotiations that a passage be included in the agreement that safeguarded him from attacks by the injured family. Already, he claimed that he had been threatened and attacked by the victim’s brother, and further trouble with the family was yet to come.198 About a year later, the widow complained to the local Vogt repeatedly that Hueberlin had not met his financial obligations towards her that had been specified by the agreement. In response, the councillors sent a letter to the local constables in Sultz asking for their help in collecting the money from Hueberlin.199 Agreements thus did not always bring immediate closure, even if they replaced a trial. The case of the slayer Jegli Gyr from 1664 is another good example of the council’s willingness to handle procedural requirements flexibly. Gyr had killed Jacob Suter in the Vogtei of Greiffensee, which had belonged to Zurich since the fifteenth century. According to witness testimony, Suter and Gyr had quarrelled while practicing with their guns at the local shooting range. In the resulting scuffle Suter had thrown Gyr on a manure heap. Suter then left with Rudolf Pfister, a soldier present at the scene, only to be followed by Gyr, who demanded to know why Suter had attacked him. During a heated discussion Suter ran at Gyr with a fork, meeting his death when Gyr retaliated by striking him with the back of his gun. Pfister was also implicated in the quarrel: according to Gyr and other witnesses, he had egged Gyr on instead of making 195  See StaZH A 15, 1645, letter of the Vogt to the council from June 1, 1645. 196  Ibid.: “… damit ich vilgedachts Galli Angsten seligen witwen unnd kindern desto besser verhülflich sÿn könne …” 197  See ibid., record of the agreement from December 20, 1645. 198  See ibid. 199  See ibid., letter from the Vogt to the council from February 13, 1646.

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peace as the law demanded.200 When Gyr reproached him for not doing so, Pfister hit Gyr several times, and so hard that Gyr was ill for several days. The local Vogt did not, therefore, arrest him immediately, although Gyr promised to present himself for arrest once he felt better, which he duly did.201 In the meantime the Vogt had been in communication with the city council about the matter, and the council judges had responded by ordering him to send Gyr and Pfister to Zurich for further examination by the council’s Nachgänger. Gyr was subsequently imprisoned in the Wellenberg, while the Vogt busied himself by collecting the testimony of witnesses presented by both parties.202 While this was going on the two families had also begun to weigh up their strategies. Amongst Suter’s family, feelings of vengeance initially dominated. After sending Gyr to Zurich, the Vogt sent details of his own investigation to the council, noting that “envious and wicked people” were trying to incite Suter’s widow to raise a “strong” accusation, which would produce “great lengthiness and cost.” The Vogt thus wondered whether the widow was hoping to “get more money this way.”203 Here he probably implied that the widow might have sought to make use of the hohe Klage as a means of putting pressure on the slayer to compel him to pay a high sum as compensation to avoid facing a harsher punishment.204 The Vogt also urged a timely settlement of Gyr’s matter, because “these days everyone is overwhelmed with harvest matters.”205 The Vogt’s approach was pragmatic; for the sake of saving time he was interested in encouraging a reconciliation. The sources do not tell us whether the Vogt actively tried to change the widow’s mind, but four days later another letter reached the council. This letter was signed by Hans Rudolph Zöller, who appears to have had an official function—perhaps the local Amtmann, the official next in rank after the Vogt—although the sources do not identify his position. By the time that Zöller wrote his letter, the widow had become more conciliatory. Zöller wrote 200  See A 17.3, the Vogts’s letter to the council from August 19, 1664. 201  See ibid., the Vogt’s letters to the council from August 19 and September 6, 1664. 202  See ibid., the Vogt’s letter to the council from September 6, 1664. 203  A 17.2, 1664, letter of the Vogt to the council from September 6: “… füeraus die witwen werden von neidigen, unguoten leuthen mehr dan guot und rechst is gestreckt und angestiftet das man nur stark klagen solle dardurch eine grosse weytlauffigkeit und costen verursacht wirt, zu wz end hin und villicht die arm witfrau vermeine als dan mehr gelt zubekommen, mag ich nit wuessen?”. 204  This might also have been the strategy employed by the Angst family in the above-mentioned case. 205  A 17.2, 1664, letter of the Vogt to the council from September 6: “… bey dieser zeyt da man mit allerhand veldgeschefften ueberhauefft ist …”

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that “time seemed long to the aggrieved parties”, and that “they would like a bearable and merciful judgment.”206 The Vogt therefore begged the council to “speed up matters.”207 To the council this letter must have indicated that the parties were interested in speedy negotiations. They reacted by trying to bring about a reconciliation even though no trial day had been set. Within a day of the letter’s arrival in Zurich, three city officials met with representatives of all parties. Present were the victim’s wife and her Beistand, the slayer Gyr with his father and his wife, and Pfister and his Beistand. The parties were heard and questioned separately. Despite appearances this was not a trial day; rather, the protocol of the meeting noted that the court officials’ goal was to find out whether the victim’s wife would be prepared to negotiate rather than raise a hohe Klage, and how much money she would like to receive as financial compensation.208 In response, the widow declared her readiness to negotiate but specified the very high sum of 600 gulden.209 The court officials then talked to the slayer and his family to find out whether such a sum would be acceptable to them. It became clear quickly that it would be difficult to raise this amount of money, since Gyr and his parents were only able to advance 200 gulden. The court officials now spoke next to Pfister to ask him what he was prepared to give in this matter in order to prevent a Klage on the part of the widow. Pfister responded to the city officials that he would be prepared to give a 100 gulden out of “Christian pity.”210 He also hoped that this donation would be accepted without damage to his honor.211 This referred to the fact that Gyr had accused Pfister in his examination of not having “made peace like an honorable man,”

206  StaZH A 17.3, Zöller’s letter to the council from September 11, 1664: “… höchstbekümberten partheyen, die zeit und wÿl lang ist…. und sÿ ein ertragelich, gnädig endůrtheil, gerne nunmehr haben thetend …” 207  Ibid.: “… die sach beschleunigen …” 208  Ibid., protocol from September 12 1664. The protocol noted the various questions posed to parties. The first two questions were posed to the victim’s wife: “a. Is it possible to talk to the woman, whether she would agree to negotiate rather than raise an accusation demanding the death penalty. b. also to ask her, what she would propose in such a negotiation, how her cause could be helped.” (“a. Kann man mit der frauen reden, ob ihro gfellig in der sach zů mitlen, und der klag uff lÿb und laben mit gebühr abhälffen, b. auch sÿ zů befragen waß vür mittel sÿ an die hand köne gäben, wormit ihro zů helffen …”). 209  Ibid.: “ihr begären ist, über allen ohnkösten 600 f. von dem Gÿren.” (“she demanded of Gyr 600 f. in addition to the money to cover the cost she was incurring …”). 210  Ibid., letter of the Nachgänger to the council from September 12, 1664: “… uß christenlichem mitleiden …” 211  See ibid.

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a charge which Pfister had vehemently rejected.212 Following these initial offers, further “talks with each party” were held “at great length” until a consensus was reached.213 This ultimately involved Gyr and Pfister increasing their offer by a small amount and Suter’s widow agreeing to accept less, bringing about a final settlement of 325 gulden. In return for this the widow agreed to refrain from raising a Klage, while all parties joined in hoping for God’s forgiveness and the mercy of the council.214 Although we do not have the minute details of the negotiations, we can achieve a glimpse of some of the strategies employed. By the end of the process the widow appeared ready to reconcile, and even told the council in her initial response that she thought of “Gyr’s four children without a father.”215 This statement is not quite clear, but she probably meant to imply that she was also ready to abstain from a Klage because she worried about the children growing up without a father in case the death penalty was imposed. At the same time she told the council that she wished for a negotiation while “reserving the right to go to law.”216 She thereby took a reconciliatory stance, but also presented herself as a tough bargainer, a position underscored by her demand of a very high sum. Jagly Gyr, for his part, had implicated Pfister during his examination and had thus succeeded in prompting a contribution from him towards the final settlement. Even at this point, however, the case did not come to an end. Although the widow had refrained from raising an accusation, it was still the prerogative of the judges to impose a penalty. In the absence of an accusation, they could either order a city official to act as an accuser or they could treat the matter as a Nachgang and impose an ex officio punishment on the basis of witness testimony and the examination of the slayer. If the council accepted the negotiated agreement, the verdict would, by necessity, be one of manslaughter and require the slayer to pay 20 marks and to leave Zurich for a year. Naturally, this fine and the year-long absence imposed an additional hardship on the slayer already burdened with a financial obligation towards the injured family. Hoping to prevent this scenario, Jagly Gyr expressed his hope for mercy in a letter from his cell in the Wellenberg, while his parents additionally sought 212  Ibid., letter of the Vogt to the council from August 19, 1664: “… nicht gefriedet wie ein bidermann …” 213  Ibid., letter of the Nachgänger to the council from September 12, 1664: “… mit einer parthei umb die ander weitleüffig ist geredt worden …” 214  See ibid. 215  Ibid.: “… deß Gÿrenn 4 Kinder ohne vatter …” 216  Ibid.: “… mit vorbehalt der rechten …”

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the help of Rudolf Zöller, who wrote a petition to the council on their behalf.217 Zöller and the Gyrs tried to use the fact that they had already come to an agreement with the injured family as leverage to convince the council to impose a more lenient punishment. In his letter, Zöller wrote that Gyr’s parents had pleaded for mercy for their son because he had agreed “to give a specified sum of money to the victim’s wife and children.”218 Zöller further requested that the council refrain from imposing on Gyr the year-long absence “since this would increase the grief of his parents, his wife and his children and also damage his household affairs.”219 Since the family did not raise an accusation, the council pursued its own Nachgang investigation. They examined both Gyr and Pfister and declared their verdict during a session of the council on 29th September.220 The judges declared that Gyr and Pfister should each pay 10 marks, and repeated the terms of the agreement. They added, however, that “on account of important causes” Pfister should pay 25 gulden more than was originally agreed upon.221 The council had evidently taken seriously Gyr’s charges that Pfister had not demanded Stallung (i.e. made peace between the disputants) as was required by law, and fined him for hitting Gyr. Having promised Pfister lenient treatment, the council had thus decided on a harsh fine following his examination and after hearing witness testimony. One other factor may explain this shift towards harsher treatment: in the protocol of his examination can be found an addendum which reads that Pfister had displeased the council by appearing “quite drunk” in front of them.”222 Jagly Gyr and his family had achieved what they set out to get, however, and had got away with paying only half the manslaughter fine. Since the verdict did not mention exile, we can also assume that the council members had waived this punishment. The case shows that the council judges had been amenable to an early reconciliation and were also prepared to skip the Rechtstage. At the same time, in a now familiar fashion, they had claimed their prerogative of pursuing investigations independently

217  Ibid., see Jagli Gyr’s letter from September 21 and Zöller’s letter to the council dated September 22, 1664. 218  Ibid., Zöller’s letter to the council dated September 22, 1664: “… des entlÿbten hinderlaßnen weib und kind zegëben eine gwüße summe gëlts….” 219  Ibid.: “… als dardůrch die trůrigkeit bÿ eltern, weib und kind nach vermehrret, und der hůßhaltung einen empfindlichen schaden gericht werde …” 220  The verdict can be found in the minutes of this meeting; see StaZH B II 527, p. 92. 221  See ibid.: “… us anderen erheblichen ursachen …” 222  StaZH A 17.3., 1664, examination from September 26, 1664: “… ziemblich trůncken …”

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and had stamped their authority on the case by altering certain details of the agreement. In a further such case from 1698, the family of the victim asked to meet with the local Vogt before the Rechtstag to ask for his help in receiving compensation. When the Vogt asked them how much money they wanted, the relatives named a specific sum. Following this, the Vogt asked the slayer Hans August von Weil and several members of his family how much they were prepared to give. The Vogt then calculated how much might be collected from these individual donations.223 In all of the above cases, the city council took an active part in promoting reconciliation between the parties rather than waiting until their role as arbitrators began after the trial or during the slayer’s exile. As a result, the distinction between the roles as judges and as arbitrators started to blur once proceedings had opened. Mediation efforts undertaken before or during a trial not only effaced the distinction between trial procedure and arbitration, but also influenced conditions which belonged to private agreements and those which belonged to verdicts. The sources indicate that relatives might have encouraged such a blurring of the boundaries, since they sometimes attempted to convince council members to include stipulations in a verdict that customarily belonged to an agreement. The family of the victim Stapfer killed in 1610, for instance, asked if the council could order Vischer “to get out of their and their relatives’ sight.”224 Their demand is no surprise given that one of them had nearly attempted to kill Vischer after the homicide. The council, evidently keen to secure peace between the parties, accepted their request and included it in the verdict.225 Such attempts were advantageous for the family of the victim, since it allowed them to secure a request without going through arduous negotiations. Other extant judgments likewise muddied the distinction between verdict and agreement. In 1640, the council required the slayer Meisterhansen to avoid the relatives of his victim, Fridli Suestrunken.226 Similarly, in 1645, they acceded to the accusers’ request that the slayer Äppli move away from his home village. As the council stipulated, Äppli should move his household out of his

223  See StaZH A.17.3, letter from September 25, 1698 and letter from October 12, 1698. See also B II 663, p. 69. 224  StaZH A 17.2., 1610, Urteilbrief from July 14, 1610: “… inen und der frundtschafft ab den augen hinweg …” 225  See ibid. 226  See StaZH A 17.2., verdict from November 19, 1640.

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village “and avoid the relatives to prevent further strife.”227 In this instance the council aimed at a lasting truce between parties to prevent further violence. In a different case, council members were willing to help patch up relationships between individuals if an agreed truce was violated. In 1651, the family of Pfister complained that the slayer Bechtold had broken the terms of the agreement by returning a year earlier than he had originally agreed to do. Here the council took matters into their own hands and helped negotiate a new agreement that satisfied both parties.228 These examples also indicate that council members were aware that agreements might be temporary truces, entered into for pragmatic reasons, and did not always constitute lasting reconciliations. Even in the case of the slayer Cunrat Hager from 1602, where the victim’s family had refrained from an accusation and the council had agreed to abstain from imposing a year-long exile, council members included in their verdict that “Hager should conduct himself in a quiet manner and avoid the children and relatives of the late Cunrat Fischer as far as possible.”229 Even though the relatives agreed that Hager did not have to spend a year in exile, the council evidently wanted to make sure that potential conflict would be avoided; either this, or the family themselves had raised this request. In most cases, therefore, the “cooling period” of a yearlong exile was imposed on the slayer. Occasionally stipulations included in verdicts went beyond conditions concerning the relationship between opposing parties, and instead took the form of disciplinary measures imposed on the slayers. In a verdict from 1640, in addition to paying the manslaughter fine, a slayer was required to “remain in his house during mornings and evenings, to abstain from visiting taverns and to listen to sermons about the holy and godly word with diligence and reverence and to ask God to forgive him his sins.”230 Similar prescriptions can be found in verdicts concerning offenses against the Sittenmandate. Francisca

227  StaZH A 17.3., 1645, Urteilbrief from September 13: “… und sonsten zu fuertkhennung neuen ungemaches mehrgedachte des entliebten angehoerige jedeweilen abweyche …” 228  See StaZH A 17.3., 1651, June 12. 229  A 17.2., Urteilbrief from April 28, 1602: “… doch das er Cůnrat Hager sich still halte, unnd deß Cůnrath Vischers seligen kinden unnd fründen, so vil müglich, nit an die augen gange.” 230  See StaZH A 17.3, Urteilbrief from November 18, 1640: “… abends und morgenns inn sÿnem huß sich befinden, aller wirths Gsellen und Trinkhüßern sich müßßigen und beflissen die Predigen deß h. und göttlichen worts mit ÿfer und andacht zubehsůchen, Gott den Allmechtigen umb verzÿhung siner sünden ernstlich zebitten …” See also a verdict from 1681

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Loetz shows that defendants who had committed the offense of blasphemy were frequently required to abstain from frequenting taverns.231 Loetz underscores that the council took seriously their role as guardians not only over the city peace but also over citizens’ moral and religious conduct.232 The fact that such verdicts were rare in manslaughter cases illustrates, however, that in seventeenth-century Zurich the prosecution of manslaughter was less concerned with moral discipline than with the financial atonement for the violation of the Stadtfrieden and with the supervision of interactions between slayers and their victims’ families. Yet it is important to note that there could also be limits to the council’s willingness to mediate between hostile parties, as can be seen in a case from 1658, which detailed how Schweitzer had killed Heinrich Braem. Witness testimony indicated that Schweitzer had provoked Braem without cause in a tavern, despite the efforts of bystanders to make peace between the two men. In this instance the victim’s relatives were not disposed towards reconciliation: on the contrary, Braem’s father wrote a letter to the council before the Rechtstage asking that they impose the death penalty.233 The council seems to have agreed with this view of events, and judged the slaying a dishonorable manslaughter. The judges did, however, show mercy in their choice of punishment by banishing Schweitzer perpetually from Zurich rather than putting him to death. Five years after the homicide, they showed mercy once again by allowing Schweitzer to return to Zurich. The records do not explain how he avoided execution, although it is plausible that his family was able to muster powerful support and influential letters of intercession. A letter written by Anna Braem, the mother of the victim, written in reaction to the pardon, seems to point in this direction. She wrote to the council that she was shocked to hear that they had forgiven Schweitzer, “no doubt due to the unceasing effort of the father and son of the offender.”234 Her letter requested that the council members confirm the previous judgment of permanent banishment, and asked that Schweitzer be tried again. In particular, she implored the council to read the witness testimony once more, as well as the accusation made by her husband, where Johannes Ulrich was required to abstain from frequenting taverns for three months and to conduct himself with calm and quiet (B II 594, pp. 143–144). 231  See her table detailing the verdicts against persons who had blasphemed in early modern Zurich; Mit Gott handeln, p. 181. 232  See ibid., pp. 191–192. 233  See A 17.3, letter from Heinrich Braem to the council, dated December 1, 1658. 234  See ibid., letter from Anna Braem to the council, dated November 29, 1662: “… unzweyefenlich uff beschechens inablaessliches anhalten des beleidigers vatter und dessen sohnes …”

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who had died in the meantime. She justified this by claiming that his accusation had not been read during the first trial, an irregularity which demanded redress. An entry in the record book of the council court notes that the victim’s father had not raised an accusation, however.235 It is unclear why Braem had not done so, even though he had supplied a Klagschrift (a written accusation) as well as a letter of supplication asking for the death penalty. In her letter, his widow implies that he had been unable to attend the Rechtstag but had sent the Klagschrift, although this had been “vergessen” (“forgotten”).236 The council was ready to make concessions towards Anna Braem, despite their pardon of Schweitzer. They first imprisoned him in the Wellenberg before beginning a new trial, although as Anna revealed in another letter written some time after this point, they only went on to hold two Rechtstage. In her letter she asked that the trial continue, and requested that her husband’s previously omitted Klagschrift be read out in public. The council had, however, decided to liberate Schweitzer from his arrest “on the condition that he should avoid all relatives of Heinrich Braem,” his victim.237 The entry also reads that Anna Braem should be told not to bother the council any further in the matter. Throughout this process the council had tried to navigate skilfully between the desire to pardon the killer and a wish to consider the relatives’ requests for vengeance. The re-trial of Schweitzer represented a compromise, although not one which they pursued to a conclusion. Rather than judging Schweitzer for a second time, they had freed him and imposed a stipulation that resembled those usually contained in an agreement, namely that he avoid the relatives of the man he had killed. They were unwilling, however, to retract their original promise of mercy. Since Anna Braem clearly had no desire to negotiate an agreement but was set upon on a harsh verdict, they did not attempt to mediate a reconciliation but hoped instead to satisfy her by their show of authority over Schweitzer and the stipulation attached to the verdict. When the widow continued to be dissatisfied, their patience ended; they abandoned the role of negotiator and with it the attempt to placate both sides, and assumed the role of a judge. The case shows the limits of judges’ adaptability and of their willingness to allow injured parties to influence the slayer’s fate, and underscores how the council ultimately reserved the right to have the final say in the judgment 235  See StaZH B II 501, p. 109, dated May 10th, 1658. 236  See A. 17.3, letter from Anna Braem to the council, dated September 14, 1663. The abovementioned entry in the council records adds that few people had appeared at the Rechtstag. 237  See ibid., minutes of the council, April 1, 1663: “… mit dem anhang das der Schweitzer den Braemischen gar nit under augen gehen solle.”

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of manslaughter. And yet, overall, the adjudication of manslaughter remained a flexible affair; neither the course of the procedure nor the punishment was ever completely predictable. As a general principle, the search for pragmatic solutions that could accommodate local circumstances and promote peace heavily influenced the process by which a verdict was reached. As we have seen in the preceding chapters, these factors also influenced the prosecution of manslaughter in Württemberg, although in Zurich, the relationship between slayer and victim’s family continued to impact the course of procedure in more direct ways during the seventeenth century. The concluding chapter looks at the ways in which slayers in Zurich sought to influence the course of proceedings in their addresses to the council. In these justificatory speeches, slayers balanced an assertive rhetoric with a language of non-aggression, alternately insisting on their right to defend themselves against insults to their honor and presenting themselves as peaceful citizens.

CHAPTER 5

Justification: Defensive Strategies in Zurich In early modern Zurich, slayers who had killed their opponents during a brawl or a tavern fight usually escaped the death penalty. Proceedings in manslaughter cases allowed disputing parties wide room for maneuvre to negotiate and stake their claims. The preceding chapter traced how such negotiations were increasingly supervised by the council. This concluding chapter discusses how this altered judicial framework affected the justificatory language used by slayers. This vocabulary expanded during the early modern period, as changes in the treatment of slayers affected their self-representation and resulted in an increased use of exculpatory language. Slayers used this language to present themselves in an advantageous light, making creative use of it and adjusting to the ways in which it was employed by legal authorities in their verdicts. This discussion is in part inspired by Natalie Zemon Davis’s celebrated analysis of French remission letters from the sixteenth century. According to Davis, cultural conventions regarding story-telling were combined with a legal rhetoric of supplication to produce the style and composition of these letters.1 French slayers could obtain a royal pardon if their homicide fit certain legal criteria, most importantly for Davis’s analysis, if the slayer had acted in selfdefense or in anger.2 The category of Excess much discussed by French jurists, was surely part of the legal framework that allowed the use of hot anger as a mitigating circumstance. The stories told in these letters were drawn up with the help of clerks who knew how they should be told, but, as Davis notes, the state had an interest in hearing the supplicant’s own voice; judges questioned the pardon-seeker to obtain oral confirmation of his story. Davis argues that this legal setting must have prevented notaries and clerks from drowning the slayer’s voice in a sea of set rhetorical formulas and prescribed narrative structures.3 She ascribes some agency, then, to slayers as authors of their stories and discusses how they might have drawn from a cultural hoard of stories and tales to embellish their legal defenses, thus rendering them more convincing. Throughout her analysis, therefore, Davis traces points of intersection between

1  Natalie Zemon Davis, Fiction in the Archives. Pardon Tales and their Tellers in SixteenthCentury France (Stanford, 1987). 2  See Davis, Fiction, p. 12. 3  See ibid., pp. 12–13.

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the legal system and other cultural productions, thereby illustrating how the rhetorical strategies of slayers helped constitute legal practice. The letters and oral defenses analyzed here do not lend themselves easily to a comparison with the contemporary world of story-telling. In their defenses, whether written or oral, slayers nevertheless had to mould events into a plot and a sequence of events that conformed to a particular storyline. And although they might have received help from scribes or legal procurators, the Zurich material makes it possible to argue that here, too, we can perceive individual tactics and strategies. The rhetorical stock Zurich’s slayers drew upon in crafting their stories contained an assortment of legal defenses such as selfdefense, but also drew upon strategies of supplication as well as the cultural vocabulary surrounding concepts of honor and the dynamics of challenge and riposte. A range of possible narrative scenarios existed which allowed slayers to combine these arguments in different ways. The sources show not only how slayers participated in defining the category of manslaughter but also how their arguments were shaped by legal changes during the late medieval and early modern period. Davis describes the stylistic conventions to which a French slayer had to conform, but also acknowledges variations of tone and narrative structure. She argues that a royal pardon required the slayer to play “by the king’s rules”, meaning in effect that “the actor must become a supplicant, a notary’s third person, and not recount his adventures as though he were a hero in a folktale showing his strength.”4 There was to be no “strutting around to the king” and no “cocky tone,” but neither could French slayers adopt “the tone of ‘proud virtue’ without supplication.”5 With regard to the Zurich material, these descriptions capture important aspects of slayer’s defenses and the extant statements, although not numerous, are well suited to an exploration of the differences between levels of confidence and of variations regarding the choice of strategies. While the discussion traces the development of supplicatory styles and the choice of legal defenses, particular attention is paid to the role of what Davis calls the “cocky tone,” a confident stance based on a cultural convention that tolerated the violent defense of personal honor against verbal insults even if those were not accompanied by life threatening attacks. The chapter analyses how slayers adapted the use of such honor based rhetorical strategies to changes in the legal system. This discussion adds to our understanding of how different social and legal contexts influenced the language of violence at court. Disputants adjusted 4  Ibid., p. 57. 5  Ibid.

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their rhetorical strategies according to these contexts. Gender was, for example, an important factor that could influence the language of violence. Sybille Malamud has recently discussed the different ways in which women talked in front of the late medieval Ratsgericht about the violence that they had used during a dispute. Zurcher women frequently explained their use of violence in fights with other women by adopting an assertive stance and justified their actions by referring to the insults their opponents had levelled at them.6 This use of a “male” honor code was accepted by the judges who did not sanction women’s use of violence more harshly than they did that of men. As Malamud points out, however, women’s use of this rhetoric was context dependent. In contrast to the aggressive language, she cites several cases, where women sought to conform to cultural stereotypes of female physical inferiority.7 They stressed their vulnerability and that they had acted purely in self-defense, for example, if they had used violence against men,8 which was less culturally acceptable. Equality between disputants was a prerequisite for the use of a confident language of violence and honor in front of the court. Legal actors who found themselves in a situation that complicated or prevented their recourse to a code of honor resorted to different rhetorical strategies to explain their violence.9 This chapter analyzes the factors that shaped the language of violence used 6  See Malamud, Die Ächtung des Bösen, p. 125. For a comparison with the language used by women in French remission letters, see Davis, Fiction in the archives, pp. 77–110. The one case of a female “manslayer” that I have found in the Zurich archive shows that the dispute between the two women recalls scenarios of typical disputes between men. Barbara Laufferin and Barbara Baerin were drinking in a tavern, when Laufferin knifed Baerin after a disagreement over the bill; see StaZH A 17.1, May 18, 1569. For a comparison, there is also one Württemberg case of a woman who defended her stabbing of a man by referring to the insults he had levelled at her. Like a male slayer, she was punished with a poena extraordinaria; see Tü 84/12, fol. 198v–207v, 1659. For further discussion of women’s use of courts and the influence of gender on the language used by legal parties at court, see the contributions in a volume edited by Siegrid Westphal: In eigener Sache. Frauen vor den höchsten Gerichten des Alten Reiches (Cologne, Weimar, Wien, 2005). 7  See ibid., pp. 118–119. 8  See ibid., pp. 119–120. 9  We see a variation of this in the manner in which male accusers adjusted their language according to the victim’s position vis-a-vis the slayer. While most accusers insisted that the slayer had violated the rules that governed fights considered honorable, there are cases in which these accusations were less assertive. This was when the victim was a woman or a man of lower social status than the slayer. Then, accusers avoided direct recriminations, but focused instead on the victims’ pain and their helpless situation. See Susanne Pohl, “ ‘She was killed wretchedly and without a cause’: social status and the language of violence in Zurcher homicide trials of the fifteenth century,” Acta Historiae 10 (2002), 247–264.

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by the “honorable” male slayers of late medieval Zurich, who had fought opponents of relative physical and social equality. The sources illustrate how their statements were influenced by the procedural context, the circumstances of a case or the slayer’s relationship with the victim’s families.10 The Zurich material allows us to address the question of change over time and to trace not only which legal contexts allowed or required the use of honor based arguments but also whether these changed or contracted over time. Although only a handful of late medieval statements are extant, they form a distinctive backdrop for the analysis of early modern defenses which suggests that it had become more complicated to base such defenses on injured honor. In Zurich, honor-centered arguments remained important to slayers’ defenses, but by the seventeenth century, they were combined with a rhetoric of distancing that had been absent from late medieval statements. This rhetoric could include arguments based on emotional perturbation or drunkenness, which implied that a slayer had not been in complete control of his actions. Depending on their situation, slayers, perhaps advised by their supporters or by Ratsredner, could draw on these excuses to construct narrative scenarios that continued to include arguments centered on injured honor. The subsequent section provides the context for analysis and briefly discusses the source material available for a discussion of the statements of Zurcher slayers.

The Sources

We can draw on various types of source material to analyse the rhetorical strategies used by Zurcher slayers. There are, firstly, extant oral and written statements from slayers as well as records of interrogations carried out in prison. With regard to the statements slayers made in court, we must confront the crucial question of who was speaking. With respect to Zurich’s Ratsgericht, this is difficult to answer with complete certainty. In light of the evidence of fourteenth-century cases it is very probable, however, that at this early point 10  This analysis contributes to a wider historiography that analyzes legal actors’s statements at court as indicators of wider cultural patterns and values. See for example, Ralf-Peter Fuchs, “Protokolle von Zeugenverhören als Quellen zur Wahrnehmung von Zeit und Lebensalter in der Frühen Neuzeit,” in Prozessakten als Quelle. Neue Ansätze zur Erforschung der Höchsten Gerichtsbarkeit im Alten Reich, eds. Annette Baumann, Siegrid Westphal, Stephan Wendehorst and Stefan Ehrenpreis (Cologne, Weimar, Vienna, 2001), pp. 141–165, Claudia Ulbrich, “Zeuginnen und Bittstellerinnen. Überlegungen zur Bedeutung von Ego-Dokumenten für die Erforschung weiblicher Selbstwahrnehmung in der ländlichen Gesellschaft des 18. Jahrhunderts,” in Ego-Dokumente. Annäherung an den Menschen in der Geschichte, ed. Winfried Schulze (Berlin, 1996), pp. 207–226.

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in time, slayers still spoke for themselves. Bauhofer and Ruoff have both concluded that until the late fifteenth century, parties in front of the Ratsgericht did not have the aid of a professional advocate, implying that parties either spoke themselves or were represented by a Beistand.11 Since statements by slayers were not standard parts of a Nachgang, the few extant fourteenthcentury statements probably came about in a rather informal way. In the case of Hans Habersat from 1381, for example, we read in the court books that the panel of judges sent two of its members to Habersat to ask him why he had killed his victim. In this instance Habersat certainly spoke for himself, as the investigations which preceded a Nachgang took place before the trial, leaving him no time to round up any Beiständer.12 Such reports were, of course, not word-for-word transcriptions, but rather incomplete summaries of a slayer’s account. Nevertheless, we may assume that those arguments that were thought important to explain the slaying found their way into the record. Of such statements we have few; only eight are extant from the fourteenth century, whereas none survive from the fifteenth century. As far as the early modern period is concerned, available sources also include oral statements given by slayers at their trial which are contained in the Urteilbriefe. From the sixteenth century onwards, some of the language used in the trial became increasingly formulaic. Standard phrases were used to open the trial, to announce the various stages, to begin verdicts, and also to open and end the pleas of parties, including the defenses of slayers. This may suggest an increasing use of Ratsredner, or procurators, who had been available since the late fifteenth century and were aware of the standard legal phrases.13 Yet the stories presented by accusers and slayers after a formulaic opening were varied enough in form and language to suggest that expert Ratsredner had not gained complete influence over the self-representation of parties. The increasingly polished style of the trial records nevertheless suggests a growing emphasis on form and display. This may have included a demand for formulaic openings and endings, and here slayers may have have received advice from experts. Yet although the trial records sometimes record the presence of Beiständer at the trials, there are only a few references to Ratsredner.14 11  See Bauhofer, Fürsprechertum und Advokatur, and specifically, Ruoff, Die Zürcher Räte als Strafgericht, pp. 110–111. 12  See StaZH B VI 194, fol. 286r. Such Beiständer, and also the Fürsprecher of the other courts, appeared during the trial only when it had been initiated through a Klage. 13  On the Ratsredner, see Chapter 4, fn. 74. 14  An undated letter (perhaps from the 1520s), from the slayer of Schwartz Hans Schwaeppeli, might contain such a reference. This unnamed slayer wrote to the council claiming that

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In addition to records of these statements made at court, we can rely on letters of supplication written by slayers who did not appear at their trial days, which for the most part contain their justifications. These letters naturally also pose methodological problems. For one thing, it is difficult to ascertain positively who wrote them. Given the extension of Zurich’s education system during the course of the sixteenth century, it is not unlikely that many slayers could indeed read and write.15 An analysis of the letters’ handwriting supports this. Several of the letters written after the Reformation display signs of a private, rather than an official hand.16 All of the surviving letters display similar strategies without containing identical phrases, indicating the individual character of their writers and not the standard phrases of pleading formulas. At the same time, the letters also show how important certain types of rhetorical strategy had become. Even without the advice of experts, early modern slayers knew which strategies would be successful. At the trial these strategies could have been pressed into a more polished form by expert Ratsredner. I will conclude, then, that contesting parties had a sense of opportune strategies and consciously made use of them, while it is also possible that they and their Beiständer made use of professional Ratsredner to put their stories into a language that was most likely to impress the judges.17 Statements we find in the sources can thus be assumed to be the product of a collaborative effort involving the concerned parties, their Beiständer, and possibly Ratsredner. In the following analysis, I will treat the various participants involved in creating he had misunderstood the date of his trial and that he wanted to send the judges a letter explaining his homicide so that “those who have to talk in front of you on my account are justified in protecting my cause” (StaZH A 27 2, undated), perhaps suggesting that he had hired Ratsredner to represent him in his absence. 15  For a discussion of Zurich schools and the influence of the Reformation, see Stucki, “Das 16. Jahrhundert,” pp. 246–253. Compare also Ulrich Ernst, Geschichte des zürcherischen Schulwesens bis gegen das Ende des sechzehnten Jahrhunderts (Winterthur, 1879), pp. 16– 17, or Wartburg-Ambühl, Marie-Louise von, Alphabetisierung und Lektüre. Untersuchung am Beispiel einer ländlichen Region (Zürcher Landschaft) im 17. und 18. Jahrhundert (Bern, 1981). 16  In these letters the conventional beginning and end formulas are missing, the signature is performed in an unusual way or else missing completely, the date is missing, the writing is irregular, and I was unable to find similar hands in the official documents of that time. 17  Of course we cannot exclude the possibility that scribes were responsible for presenting the pleas of contesting parties in a language acceptable to the ideological concerns of the judges. Yet whereas such a scribal influence might have contributed to the standardization of certain parts of the trial records, I do not believe that scribes significantly changed the way in which parties represented the specific circumstances of a slaying, since the various descriptions remain sufficiently varied.

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the story to be told as a unity and refer to this unity as a “slayer” or an “accuser.” While the slayer’s voice may not have been the only voice we find in the sources, there is also no evidence that it was significantly altered by scribes or Ratsredner. From the seventeenth century, an additional type of source becomes available: interrogation records of imprisoned slayers produced before a trial. These statements, while again not word-for-word transcriptions, provide insight into how slayers tried to position themselves and heighten their chances in the pending trial. There is no evidence that they were advised or accompanied by Ratsredner when they gave these statements. Unfortunately, this analysis is based on few extant sources. There are about thirty surviving records from the late medieval and early modern period, comprising both oral statements and letters. This analysis is therefore not a comprehensive overview, but rather illustrates a range of possible rhetorical strategies.

Confident Voices: Claims of Honor and of Civic Honesty

In 1391, Hans Habersat killed Hans Eius. When asked by two Nachgänger from the Ratsgericht to explain himself, Habersat told the judges that Eius had insulted him during their dispute, provoking his anger by taking a bowl of wheat from his house and throwing it on the floor. According to his deposition, Habersat then “lifted his hand and said, God’s wounds help me, this will never end well.”18 He asserted that the two men subsequently began to hit each other, calling each other liars, and also “that they had been longstanding enemies.”19 In his statement Habersat did not feel it important to point out who had drawn or attacked first, or to fashion his case as self-defense in any other way. Nor did he shy away from telling the council that he and Eius had been enemies. His reported gesture of lifting his hand and uttering a threat, moreover, resembled the ritualized announcement of a feud. Such enmities and feuds were forbidden by city law, but Habersat felt no hesitation in making them the backdrop for the slaying. Witnesses further confirmed the long-standing enmity between the two men, and the council apparently accepted Habersat’s bravado without qualms, assigning him the usual fine of 10 marks.20 Unlike the French slayers who would seek a royal pardon 200 years later, Habersat did not talk to the council members as a supplicant; his tone might 18  StaZH B VI 194, fol. 285r: “do huob der Habersat die Hand uff und sprach, so helf im bogs wunden es geriet niemer wol.” 19  Ibid.: “… und dz si beid lang zit einander fyent sint gesin …” 20  See ibid.

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come close to what Davis would call “cocky,” showing the kind of brazen confidence that the authors of remission letters sought to avoid. His case is one of eight extant statements of slayers from the fourteenth century, when manslaughter was mostly prosecuted through a Nachgang in which an interview with the offender was not required. When manslaughter was prosecuted by a Klage, slayers’ statements were generally missing. The reason the council examined the slayer in the eight fourteenth-century Nachgang cases is unclear, though might be explained by a lack of sufficient witness testimony. These statements show a similar confident rhetoric as that employed by Habersat, falling short of a plea of self-defense and relying instead on a cultural toleration of the use of non-life-threatening violence in the face of insults and provocation. The concept of honorable manslaughter was at this time quite broad, covering a range of slayings from those occurring during the act of fending off life-threatening assaults with dangerous weapons to those that resulted from lighter physical or even verbal attacks. Yet its crucial defining factor was the fact that the slayer had reacted to a provocation. The statements of slayers mostly focused on this point, conveying to the council who had given the Anlass, which could be both a verbal insult or a physical attack. While they assigned blame, they did not show remorse or regret and made little attempt to reduce their responsibility.21 Interestingly, these statements also did not include a formal claim of self-defense, although Zurich’s statutes would have allowed this.22 Of the eight surviving explanations offered by Zurich’s slayers in the fourteenth century, only three suggest that the slayer was forced to defend his life. Chuno Neisideller claimed in 1381, for example, that he killed Hans Bruegglin during a dispute because Bruegglin had drawn his knife and attacked him.23 And in 1392 Rudi Stoub killed Hans Wirt, claiming that Wirt had first drawn his

21  I have found only one such case: Oechen’s slaying of Graser. In it, the witnesses reported that Oechen took away a knife from his dead victim as proof that the victim had meant to attack him. We do not know whether Oechen actually made this defense. If he did, it failed miserably as he had to pay an extra fine for taking the knife (see StaZH B VI 190, fol. 92v). 22  Zurich statutes never explicitly defined “self-defense”, as other Alamannic city laws did. The city laws of Augsburg, Konstanz, and Memmingen, for example, required the slayer to establish that he had tried to step back before he struck his attacker as proof that he killed against his will. Some city laws (Augsburg, Strasbourg) also specified the nature of the attack, claiming that the slayer had to have been attacked with a drawn weapon, i.e., a sword or a knife; see Osenbrüggen, Das alamannische Strafrecht, p. 153. 23  StaZH B VI 191, fol. 141v.

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knife.24 Neither slayer used the term notwer or used exculpatory language, in other words, expressed regret over the slaying, tried to stress that it had happened against his will, or argued that he had tried to back down. Both slayers admitted to having been involved in a dispute with the victim, and Stoub even acknowledged that he had refused Wirt’s demand to make peace. It was this refusal, witnesses reported, that provoked Hans Wirt to such an extent that he attacked Stoub. Although Stoub stressed that Wirt had wounded him first so that he bled heavily, he did not distance himself from his deed, but repeated in his statement to the council the insults he had hurled at Wirt in response, as if to emphasize his right to be angry with him: “by the devil, you will not stab me like this.”25 Johannes Stroili was a slayer who actually sought to persuade the council that he had tried to escape from his attackers, making his an extraordinary case. The record reveals that in his desire to defend himself he had shot the wrong person: rather than Claus Kalprunen, he accidentally killed the wife of Rudi Heintzly.26 He justified his attempt to kill Kalprunen by asserting that Kalprunen had stabbed him with a knife, forcing him to flee. Stroili ran to the place where he kept his bow and arrow and sought to defend himself, but his shot went astray and killed the innocent woman. Stroili’s report differed from those of Neisideller and Stoub because he stated clearly that he wanted to defend himself. But Stroili also stressed his anger at the Kalprunens, coming close to asserting that he sought revenge. In his statement he claimed that he “was sorry that he shot the woman because she had not done him any harm and he was not her enemy, but he was the enemy of H. Claus Kalprunen’s son, who had harmed him, he and his brother, and he would have liked to have shot him.”27 In none of these three cases do we find any indication that the slayer formally claimed self-defense or attempted to prove such a claim by assembling seven honest people to swear to his innocence, a procedure the Zurich statutes required for the establishment of self-defense.28

24  StaZH B VI 195, fol. 9r/9v. 25  See StaZH B VI 195, fol. 9r-v: “samer box … des stichs gefuerst mir niemer hin …” 26  StaZH B VI 193, fol. 25v and fol. 60r; 1386. 27  Ibid.: “… dz im leid ist dz er die frowen schos…. won si het im nie leit getan, und faret ouch ira nuet, er faret H. Claus Kalprunen sun, der hat oech im als unrecht getan, er und sin brůder dz er in gern geschossen hetti …” 28  See Ott, “Der Richtebrief der Bürger von Zürich,” p. 159. Of course we may conjecture that such a procedure took place out of court, or that it was no longer in use by the end of the fourteenth century.

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Several other explanations made by slayers involve the concept of provocation and yet fall short of a plea of self-defense. For example, in 1380 Hans von Frauenfelt killed Stirn after they had quarrelled over a game of dice.29 Frauenfelt told the council that he had asked Stirn in a friendly way to give him his winnings. Stirn refused, and “hit him on the neck,” allowing Frauenfelt to argue implicitly that he had been provoked both physically and verbally.30 Yet because he acknowledged that he was not hit with a weapon, he could not easily claim that his life was in danger, or that he had to defend himself against a potentially lethal attack. Another slayer, Uli Sanger, also implied that he was provoked after he had killed a tailor’s apprentice named Gigenberg. Sanger did not refer to a physical attack at all, however, but argued that “Gigenberg and other apprentices had interfered with his rights” to such an extent that Sanger could no longer retain apprentices.31 In his statement, Sanger made no attempt to excuse the deed or to distance himself from it. He told the council, however, that a boy named Gässlikon from the village of Stallikon had witnessed his slaying of Gigenberg.32 Sanger was apparently unconcerned about representing his offense as self-defense, but he cared about conveying to the council that the homicide had not been secret murder. In none of these statements do we notice an attempt to privilege a physical attack over an attack upon the slayer’s honor; insults and life-threatening assaults seem to carry equal weight. The repetition of insults conveyed to the judges that the slayer’s honor had been under attack, and that this had justified a violent retaliation. These terse statements lack professions of regret; although slayers might argue that they had been provoked, they acknowledged quite freely that they had been ready to fight, and thus had perhaps even contributed to the victim’s anger. The only instance of a slayer showing remorse in this early period was a case of a slaying that was clearly considered dishonorable by witnesses. In 1425, Heinrich von Hünenberg had attacked Hans Nell at night, creeping up upon him from behind and hacking off his arm after he had been disturbed by the loud singing of Nell and his friends. This act drastically violated the norms of honorable slayings. A witness reported that Hünenberg was well aware that 29  StaZH B VI 191, fol. 60v. 30  Ibid.: “… und schlüg im öch an sin hals.” 31  StaZH B VI 195, fol. 308v, 1394: “dz der selb Gigenberg selig und ander knecht inn gesum hant …” As Sanger explained in a Klage he brought against the tailor’s apprentices, Gigenberg allegedly had spread a rumor that it was difficult working for Sanger (StaZH B VI 195, fol. 330v). 32  See ibid.

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his deed was heinous. This witness noted that Hünenberg had told his wife: “I did it, it is to be regretted.”33 Of course, we do not know what he would have said in front of the council, as no direct statements from dishonorable slayers were kept. Yet Hünenberg’s statements suggest a distinction between the rhetoric of slayers whose acts conformed to standards of honorable slayings and of those who had killed under circumstances considered dishonorable. Honorable slayers knew that they could count on a monetary fine and did not have to fear moral judgments. Hünenberg had to fear harsher sanctions, since slayers who had killed in what was considered a dishonorable manner were already threatened with a potential increase in punishment before the category of dishonorable manslaughter was used. This might also explain Hünenberg’s more contrite attitude. It is likely that if there were extant statements by dishonorable slayers in this early period, these offenders might have presented their deeds somewhat differently from the self-assured language of the honorable slayers described in this section. Another reason why slayers did not try to escape the not insubstantial fine of 10 marks with a claim of self-defense was perhaps rooted in the breadth of the category of simple manslaughter. I have conjectured that self-defense might have been reserved for cases in which the victim had committed a serious offense, such as resisting the execution of justice, as we saw in the case of Ueli Muelimann, who killed a delinquent after the offender resisted arrest in 1466. Muelimann was convicted of self-defense.34 If it was true that selfdefense was so narrowly defined, then those who killed in a tavern fight might have thought it useless to claim it. But the concept of honorable manslaughter was broad enough to cover the typical slayings that resulted during tavern brawls. This broad concept shielded these slayers from the death penalty, if not from the payment of a fine, and consequently may have prompted expressions of honor and provocation rather than an emphasis on the dire straits in which they acted. While this language of self-assertion tallied with cultural concepts of honor, which encouraged slayers to stand proudly for their deeds, other rhetorical strategies were also open to slayers. We find examples, for instance, in the statements of parties involved in private accusations concerning physical attacks or insults. In such cases, it was common for disputants to combine exculpatory language with an insistence on personal honor, blaming the victim for 33  StaZH B VI 207, fol. 96v: “ja leider ich han es getan … ich woelt aber gern dz etwer bi mir wer gesin, der mich sin ueberhept hette.” For a more detailed analysis of the case, see Susanne Pohl, “She was killed wretchedly and without a cause.” 34  See StaZH, A 17 1, 1466.

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what happened in the process. In 1400, two tailors named Ulrich Blibnuet and Johan Cantzenrein were engaged in a dispute during which they insulted and struck each other. Bleibnuet accused Cantzenrein of calling him a “verhitter huren sun” (“fucking son of a whore”) and that he was “nuet ein biderb man” (“not an honest man”), thus making it clear to the council that his honor had been at stake and that he had just cause to engage in a fight.35 Cantzenrein did the same when he insisted that he had been grossly insulted by Bleibnuet. But both parties also emphasized that they had been in a peaceful state of mind prior to the fight, and that they carried no animosity towards the other party. Cantzenrein insisted in his accusation that whereas Bleibnuet had spoken to him “frefenlich” (“reprehensibly” or “unlawfully”) and stabbed him “an schuld” (“without cause”), he had remained calm and addressed Bleibnuet “tugenlich” (“in a friendly manner”).36 Bleibnuet, on the other hand, accused Cantzenrein of accosting him “frefenlich” and of addressing him “schalklich” (“mockingly”) while he, Bleibnuet, had said to him: “ich beger dir nichtzit” (“I have no intention of wronging you”).37 By repeating the insults directed at them and insisting upon their peaceful ways, both parties implied that their honor had been injured, although they also presented their behavior as conforming to the laws safeguarding the Stadtfrieden, since they stressed that they had initially tried to avoid conflict. Such an emphasis on peacefulness also had a place in a code of honor, which equally condemned unprovoked violence. Generally, in such cases both accusers and those accused used a range of rhetorical strategies, drawing upon and mixing expressions from a vocabulary of personal honor as well as from a vocabulary belonging to the concept of Stadtfrieden and its ideal of a peaceful, modest citizen. The Klage procedure no doubt encouraged this kind of selfpresentation because accusers and accused had to reply to direct and often vicious charges. Because such charges were absent from the fourteenth-century homicide trials initiated by a Nachgang, this procedure might therefore have encouraged the self-confident rhetoric of honor in the courtroom.38 35  StaZH BVI 197, fol. 32v. 36  StaZH BVI 197, fol. 33v. 37  Ibid. 38  Yet when we compare this rhetoric with the accusations centring upon light physical or verbal attacks, we can make an interesting observation. If disputants in such cases insisted on their right to defend themselves against an insult or a blow from a fist, they often argued—after detailing the insult they had received—that “they did not deny they got angry” and therefore hit their opponent. This statement was so often repeated that it almost resembles a standard phrase. We do not find this phrase in the statements of slayers. If the absence of this phrase was a deliberate choice by slayers, we may see in this a

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The lack of source material makes it impossible to trace this rhetoric through the fifteenth century, but extant sixteenth-century statements demonstrate that the terse, confident style of these early defenses was replaced by a greater variety of rhetorical strategies that now included a slayer’s insistence on his peaceful behavior—a change in rhetorics that was probably related to the introduction of harsher sanctions on the one hand, and to procedural changes on the other. Since the sixteenth century, the revised Klage procedure offered slayers the opportunity to defend themselves in court, although, as discussed in the previous chapter, most slayers were absent from their trials during the sixteenth century. Yet we can also get a glimpse of the defensive rhetorics used by escaped slayers, since they frequently sent letters to the council to explain their acts and to ask for merciful treatment. Faced with their accusers’ charges, slayers were forced to use greater eloquence and a more defensive stance in their oral and written defenses than evident in the statements of fourteenth-century slayers. They now regularly claimed self-defense, probably prompted by the growing use of this category and the nominal threat of the death penalty. In 1520, Heini Hirt claimed, for example, that that he killed Hans Benolt because “he had been forced to act in self-defense and that he had to save his life.”39 During the course of the sixteenth century, slayers’ rhetoric became more elaborate. Arguments based on the assumption that the defendant had been justified in using violence against insults to his honor could be part of these defenses, but these arguments acquire also semantic nuances that we do not see in the earlier homicide records. Claims of honorable behavior rested now more often on the slayer’s insistence on his own lawful and peaceful conduct.40 small concession to the more serious circumstances that they found themselves in. Even though they talked the language of provocation and not of self-defense, they might have thought it better not to emphasize additionally that they had been angry at their opponent, shying perhaps away from a too-overt statement that they had wanted to kill. On the other hand, this omission is perhaps rather due to the paucity of statements. 39  StaZH B VI 248, fol. 5v: “… er were zur nottwer gedrengt und hett müssen sein lib und leben retten.” 40  In this, these statements resembled the rhetoric employed in the previously discussed examples of late medieval Klagen concerning lighter physical or verbal attacks. An early example of such rhetoric in a homicide is a Klage from 1467. The victim’s father accused Hans Munch of killing his son Ruedy Zerkinden “over the peace” (StaZH B VI 225, fol. 418r–426v), i.e. that he had killed his victim after he had promised Stallung. The quarrel had first been between the slayer’s father, Cunrat Munch, and Ruedy Zerkinden. To end the quarrel, Cunrat Munch had agreed to a peace with Zerkinden. At this point,

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Compare, for example, the defense of the two brothers, Hans and Peter Fuessli, who killed Hans Kleyn von Bonstetten in 1555. In their justification, they asserted that they were sorry for what happened but that Kleyn himself had caused his own death. On the night of the slaying, he had come “uninvited to their honest company” and had behaved “inappropriately,” whence Peter Füssli had “asked him with friendly words to be peaceful and quiet.”41 They thus established a contrast between Kleyn’s wild behavior and their own modest conduct by emphasizing that they had been part of an honest and wellbehaved company. Kleyn, they continued, had not responded to their friendly overture but said “he would do what he wanted to do,” and yelled “defiant words.”42 He then drew his sword, forcing Peter to defend himself. When Hans saw this, he charged to Peter’s side to help him in “brotherly faithfulness.”43 Hans Munch, who had not participated in the quarrel, charged at Zerkinden and killed him. As in other homicide Klagen of the fifteenth century, the slayer’s statement is not recorded. But the slayer’s father, Cunrat Munch, who had also been involved in the quarrel with Ruedy Zerkinden, answered the Klage with a Gegenklage, a counter-accusation. This was a typical procedure in Klagen involving lighter physical or verbal attacks; it is, however, the only example of a Gegenklage in a fifteenth-century homicide case. In this Gegenklage (directed at the dead Zerkinden), Cunrat Munch accused Zerkinden of breaking the peace first and represented his son’s action as a form of self-defense as he came to the defense of his father. In this counter-accusation, Cunrat Munch switched between a code centered on honor and a code centered on urban laws. He both stressed that he had willingly given the peace and that Zerkinden had insulted his honor by calling him a “drunk prick who did not stick to honor or his oath.” The case suggests perhaps that if there were statements of slayers from the fifteenth century, they might have made use of this kind of code-switching, rather than relying exclusively on arguments centered on the defense of honor as did their fourteenth-century counter parts. The only other statement of a fifteenth-century slayer is that of Heini Goetz. In a short letter from 1483, he claimed that he was “forced” to use “self-defense to protect his life and limb,” which “unfortunately” resulted in the death of his victim (StaZH B VI 234, fol. 84r). In this letter, Goetz thus stressed that he killed against his will and claimed self-defense, probably fearing the harsher punishments for homicide since 1467. This case was brought by a Nachgang, which might explain his lack of eloquence, since he was not faced with harsh allegations of the relatives of the victim. There is no other witness testimony and no verdict. 41  StaZH A 17.1, April 29, 1555: “… wie er ungeladen inn ir eren geselschafft … komen und inn mengerley weg … ungeschikt gewesen, habe er Peter inn mit früntlichen worten gebetten fridlich und ruwig zuo sind …” 42  Ibid.: “… er welle thuon was im gelgen und darzuo etliche verachtliche wort usgestossen …” (ibid.). 43  “… bruederlicher truw …” (ibid.).

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This statement in which the Füsslis insisted on their own model comportment as opposed to the wild behavior of their victim—an insistence that had been absent in fourteenth-century statements—is one of a total of 18 extant statements of slayers from the sixteenth century, all of whom were acquitted for having killed in self-defense. In the preceding chapter, I have argued that they may have had an inkling of the council’s decision and recieved Geleit, which is why they appeared at their trial day.44 At least some of them came from well-to do or politically influential families, which might have counted in their favor when the council members decided whether to grant Geleit. The Füsslis’ social position might well have legitimated their claims to honesty. They were bellmakers and had lived in Zurich since 1357, and by the sixteenth century were an important and influential family. Hans’s grandfather had also commanded a battalion at the battle of Kappel against the Catholic parts of the Swiss Confederacy in 1530, and Hans himself became a council member in 1572, subsequently holding several important administrative positions.45 Like the Füsslis, other slayers also tended towards a confident rhetoric of self-defense at their trial, representing themselves as honorable citizens who had obeyed the city laws. Their statements sketch a portrait of the slayers as peaceful and law-abiding citizens doing their utmost to resist any aggressive assertions of their honor, but who were finally forced into violence by quarrelsome attackers.46 This rhetoric might also have been influenced by the council’s increasing desire to cultivate urban virtues in citizens as a guarantee of urban peace. From the late fifteenth century, in an effort to increase their authority, the ruling elites of Zurich had given new emphasis and reach to an ideology centered on the concept of the quiet, dutiful citizen. Assuming the role as guardians of the moral life of the city, their language acquired religious overtones perceptible in expanded sumptuary legislation, by which council members sought to ensure a morality of urban modesty at the turn of the century.47 This development received additional legitimation during the Reformation. Bullinger and Zwingli equated civic with Christian duty, and 44  In the Füsslis’ case, the records indicate that they had been granted Geleit. See STaZH A 17.1, April 27, 1555. 45  See articles in e-HLS: Katja Hürlimann, Füssli, 2006 and Veronika Feller-Vest: Füssli, Peter, 2005, www.hls-dhs-dss.ch. 46  Perhaps we might begin to see that slayers in their written statements also elaborated more on this concept of peacefulness if we had more letters of this kind, though none survive from the second half of the century. We might nevertheless assume that slayers would have continued to be more humble in their letters than in their oral statements. 47  See Wechsler, Ehre und Politik, p. 242.

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for Bullinger in particular, immodesty was the origin of all vice. He viewed the relationship between God and people as a covenant requiring men to obey the commandment of love and piety, and he assumed that laws guiding their civic behavior would help men to keep this contract. Both he and Zwingli ascribed to the magistrate the responsibility of using the law to enforce ideal Christian and civic behavior.48 In his admonitions [Fürträge], Bullinger frequently asked the council members to extend their sumptuary legislation.49 In self-defense verdicts of the sixteenth century, city councillors frequently made use of this code of moral comportment extended by the Reformation. In cases of self-defense, the council members often commended the slayer’s actions and chastised the victim for his defiant behavior. In the previously discussed case of Hans and Peter Füssli, who killed Hans Kleynen von Bonstetten in 1555, the council asserted in the verdict that the victim “had not taken his rightful road to his home but had attacked honest people in the tavern, insulted them in many ways … even though Peter Füssli had tried to calm him down in a friendly way, Kleyn had remained defiant.”50 By delivering a verdict of self-defense, the council validated the claims that the slayer had done nothing to provoke his victim—that he had in fact behaved like a model citizen. In the same manner, a verdict of dishonorable manslaughter could become in several respects a condemnation not only of a slaying, but of a generally unruly character, one hostile to the ideals of peace and civic order. It is evident in post-Reformation verdicts of dishonorable manslaughter, that the council increased the number of standard judgmental phrases and adjectives already common in such verdicts. For example, a stock phrase was added, stating that a slayer was sentenced to death “for such evil, violence, unlawfulness and arrogance,” stressing that he had acted according to his own wantonness and not according to the ideals of good civic behavior. In some verdicts, the council even described the unlawful behavior of the slayer in more detail. When they sentenced Hans Stressler to die in 1572, the verdict 48  See J. Wayne Baker, Heinrich Bullinger and the Covenant: The other Reformed Tradition (Athens, Ohio, 1980), pp. 109 and 115–118, Bruce Gordon, “Die Entwicklung der Kirchenzucht in Zurich am Beginn der Reformation” in Heinz Schilling ed., Kirchenzucht und Sozialdisziplinierung im frühneuzeitlichen Europa (Berlin, 1994), pp. 65–90, for a discussion of the techniques with which the council and the pastors sought to enforce such behavior. 49  See Bächtold, Heinrich Bullinger vor dem Rat, pp. 59–67. 50  StaZH A 17 1, April 29, 1555: “… dass der teter … nicht auf rechter Strasse heimgegangen, sondern die eeren Gesellschaft … überlaufen … vil mengerley verachtlich und trowlichen ungebürlichen worten getriben, das alles on einich ursach und wievil vermelt Peter Füssli nebend anderen dem Kleger fruintlich gewarnet sins ungeschickten Wesens abzetend …”

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claimed that he had “behaved against Mathis Leman [the victim] with so many inappropriate, insulting words that all of them, especially Leman had asked him to cease this behavior and not to start trouble. But this did not deter him and he hit Leman with his hand twice on the back. Even though Leman had thus had cause to defend himself, he did not do this but got up from the table to avoid Stressler’s company and to go out of the door, when Stressler ran after him and attacked him.”51 In this verdict, the peaceful behavior of Leman is held as exemplary in comparison with that of the slayer, who had arrogantly pursued trouble and thus violated the civic code.52 Council members also occasionally used the verdicts to chastise other violations of civic morality. When they convicted Andres Puor in 1537 of a dishonorable manslaughter, they argued that the slaying was shameful, sinful, dishonorable and dishonest because Puor had killed his victim in “arrogant and evil presumptuousness, being drunk.”53 Drunkenness was a major concern of Bullinger, and he urged the council repeatedly to issue legislation to curb drinking customs.54 Blasphemous swearing also troubled both Bullinger

51  StaZH B VI 260, fol. 151r: “… unnd sonnderlich aber gegen gemeltem Mathissen Leman, selligen mit sovil unnd mengerley ungebuerlichen worten erzeigt, unnd gehalten, dass sey inne all unnd besonnders auch der Leeman gepaetten, darvon abzeston, unnd bye inen dehein unruwe antzefachen, das aber an inne dem Stressler nit mer verfangen, dann das er gedachten Leeman, mit siner hand zweymal uff synem ruken geschlagen, unnd wiewol er der Leeman darueber ursach gehept, sich gegen ime inn gegenwer zestellen, so habe er doch soelliches nit thuon, sonnders vom tisch uffgestanden, unnd vom ime dem Stressler hinweg, unnd zur thuer hinues wellen, da der Stressler ime nachgeilt, inne bye der stuben thueren erwutscht, daselbs zuo huffen geworffen …” 52  Depending on their stance vis-a-vis the slayer, accusers could be quick to take up this language, adapting it to their own efforts to denigrate their opponents, if they, for example, wished to raise a hohe Klage. This manner was an extension of the processes we analyzed in the preceding chapter, where accusers in the fifteenth century made use of a vocabulary of dishonorable slaying to cast aspersions upon their enemies. Now accusers employed the expanded language of urban peace to the same end, as they asserted that a slayer had violated the urban code through a defiant persistence on his presumptuous behavior even though he had been entreated to be quiet. 53  StaZH B VI 253, fol. 218r: “… eygener muotwilliger boeslicher vermessenheyt, inn einer voelle volnbracht und begangen …” 54  See Bächtold, Heinrich Bullinger vor dem Rat, for example, pp. 64–67. In a verdict from 1563, the judges asserted that it was the wine which had led to the homicide and although the slayer was treated with mercy rather than executed, he was required to give up wine and visits to taverns (StAZH B VI 258, fol., 219r).

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and the council.55 In sentencing Heini Weber to death in 1532, the council took into account that prior to his homicide he had behaved “so defiantly, violently and unlawfully that it could not be tolerated and was too much for any Christian to bear.”56 This was specifically in reference to the fact that he had repeatedly uttered blasphemous words. These sixteenth-century verdicts of dishonorable manslaughter seem to condemn bad citizens, whereas verdicts of self-defense appear to absolve those who were virtuous citizens for having killed those who were not. Slayers who appeared and were acquitted at their trials during the sixteenth century modelled themselves according to this code of civic behavior. In all likelihood, armed with certainty of the council’s favor, they adopted “a tone of proud virtue without supplication,” to quote Davis once again.57 Like the Füsslis, some slayers began their narratives by claiming that at the time of the homicide they had been part of a company of well-behaved Zurchers. This is a tactic also observed by Davis in French remission letters, in which it conveyed a sense of normality and of peaceful civic behavior.58 Hans Wegel, who killed Hans Tegen in 1556, told the council that he had been drinking quietly with his companions in a tavern. He represented his victim as an unruly person, one who did not behave according to the accepted urban virtues, for he had “uttered inappropriate threats the whole day, and was restless.”59 Tegen had behaved such that, in order to prevent quarrel and dispute, the company in the tavern was forced to throw him out. He allegedly had waited for Wegel outside with drawn sword. The victim was thus portrayed as a troublemaker who had not only disturbed Wegel but the other members of his company. Another common strategy of slayers was to stress that they had behaved as law-abiding citizens of Zurich. When Hans Weinmann killed Jacob Kumpen in 1545, he told the council that Kumpen had been in a fight with another man and that he had “according to his sworn oath as an honest man tried to make peace when Kumpen drew his sword and struck him in anger, uttering 55  For a nuanced discussion of the treatment of blasphemy in Reformed Zurich, see Loetz, Mit Gott handeln, for example, pp. 114–142. 56  StaZH B VI 253, fol. 77v: “… und dermassen so throtzlich gwaltig und fraeffenlich gehandlet, das es unerlydenlich und eynem Cristenmenschen zevil ist …” 57  Davis, Fiction in the Archives, p. 57. 58  See ibid., p. 44: “Many more of the remission tales begin with the supplicant going about daily business or festive pleasure in a peacable way …” 59  StaZH A 17.1, 1556: “… den gantz tag ungeschickte trowwort usgestossen, und unruewig gewesen …”

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swearwords.”60 Weinmann not only stressed his own law-abiding behavior but emphasized that his victim had violated the laws by resisting the peace and swearing at him. Müller, who was accused of killing Bintzmüller in 1560, made use of the civic and Christian censure of drunkenness to incriminate his victim. He asserted that he had been helping the host of the tavern to serve the wine when Bintzmüller, “who was loaded with wine,” had caused trouble by refusing to pay his bill, uttering “evil words and swear words.”61 When Müller came to aid the woman who had demanded payment, Bintzmüller grabbed his beard, tore at it, and would not let go. Müller claimed that even then “he was not angry,” begging Bintzmüller several times to let him go before he finally struck him.62 In contrast to Bintzmüller’s drunkenness, Müller asserted his own soberness; he had “not eaten or drunk immodestly.”63 We find a similarly confident stance and an attempt to connect a homicide with the slayer’s defense of civic virtues in a letter from Cunrat Holtzhalb in 1534. Unfortunately, no other records have survived for this case, meaning that we do not know whether Holtzhalb appeared at his trial, and if he did whether he was acquitted. We know, however, that he was from a wealthy, politically influential Zurcher family and a master of the butcher’s guild.64 This could explain his confident rhetoric and, so we might hypothesize, may have encouraged him to count on lenient treatment. In his letter Holtzhalb associated his own honor closely with that of the city. He described how a fight ensued between him and his victim Cuntz after the latter told a group of six or seven butchers that “the things that the guild masters and apprentices talked about in the guild were fucking lies.”65 According to his letter, Holtzhalb retorted: “Cuntz, I do not believe that I told you any fucking lies.”66 Holtzhalb then explained to the council that Cuntz “was dishonoring the whole guild with this talk, which upset me. I think that if any of my lords [i.e. the city councillors] had heard that anyone thus shamefully 60  A 17.1, May 1545: “… und er nach vermög sines geschwornen eids wie ein biderman solliche uneingkeit zů friden stellen wellen, habe Kumpen sin schwert inn der scheiden gefasst, und inn einem zorn mit ettwas schwüren gegen im gethruewen unnd zů im geschlagen …” 61  StaZH A 17.1, August 31, 1560: “… als der mit wÿn ueberladen …”; “… mitt bösen worten und schwüren begegnet …” 62  Ibid.: “… nit zornigs gemuets gewäsen …” 63  Ibid.: “… ouch weder mitt spÿs ald tranck überladen …” 64  See e-hls, Katja Hürlimann: “Holzhalb,” 2008, www.hls-dhs-dss.ch. 65  StaZH A 17.1, 1534: “… was mine Meister und gesellen inn der Zunfft redent und sagent, das sige alles erhyt unnd erlogen …” 66  Ibid.: “… Chuntz, ich vermeinen nit, das ich dir nuetzit erhyt noch erlogen hab …”

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insulted the Masters of his guild, he would not be able to tolerate that either.”67 Holtzhalb argued that he had therefore been obliged to save the honor of the city councillors as well as his own, and so had lifted his fist to hit Cuntz.68 Cuntz, however, had drawn his knife in response and hit him so that he had been forced to defend himself more violently. Holtzhalb asked the city councillors to question the “honorable people” who had been present and who could be named by his brother to confirm his account of the fight. He hoped that his innocence would become clear and that the councillors would acquit him.69 A lengthy letter from Melchior Zimbermann in 1602 likewise mixed arguments drawn from a rhetoric of peace with arguments based on personal honor, a strategy that allowed him to switch easily between these behavioral codes.70 Since Zimbermann (as the slayer) was offered Geleit by the council and later acquitted, it is also likely that he wrote his letter with some assurance of a favorable verdict. In it, Zimbermann described in detail the repeated insults he had suffered from Caspar Müller during a series of encounters over a period of several days. His defence rested partly on the argument that Müller had nursed an enmity against him and had acted with premeditation, while he, Zimbermann, had all the while remained “calm.” Whereas Müller had provoked him from their very first encounter, he in contrast had asked him with “gůtten früntlichen wortten” (“good, friendly words”), what he wished and told him that he had always considered him his “gütten fründ unnd gsellen” (“good friend and comrade”). Their disagreement began with an apparently chance meeting when Zimbermann was on his way home at night after a tavern visit, meeting Müller on the way. According to Zimbermann, Müller accosted him without reason, even though he had done nothing to provoke him. Approaching him with a drawn weapon, Müller “touched my face and asked whether I did not have a beard” (“mir in das Angsicht griffen, unnd fragt ob ich einen Bart habe”). Zimbermann answered this attack on his manhood with the words that “even if I don‘t have a beard, I can defend himself like a man, if necessary” (“wan ich schon kheinen Bart hab, mich nüt dester weniger wanß die not geforderen düt, 67  Ibid.: “… damit er ein ganntze Zunft an iren eeren geschuldten, das mich verdrossen dann ich achten, wellicher under euch minen geherren, horte, das einer, im sine herren und Meister von der Zunfft, als schantlichen schulte, er wurde das auch nit, von im vergut haben, darumb ich verursachet, und miner herren und min Eer retten wellen, unnd inn mit Fust schlagen wellen …” 68  See ibid. 69  See ibid. 70  See StaZH A 17.2., Letter from Melchior Zimbermann from February 9, 1602.

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eineß manß weren darf”) Müller, so Zimbermann wrote, then left him alone. He had, as Zimbermann claimed, taken his answer to this enquiry as a threat and begun to harbor “hatred” (“haß”) against him. Following this encounter, Zimbermann then went on to describe several further meetings at which Müller had continued to provoke him. During a second encounter, Zimbermann reported that Müller had demanded to know whether Zimbermann had a “haß” (“hatred”) towards him or not. Zimbermann answered that he did not carry a hatred towards him, and asked him to leave him in peace and allow him to pursue his road home.71 Müller answered this attempt at peace-making with a threat, telling him he would get even with him and that the devil should take him.72 Zimberman begged him in response “in a friendly manner” (“früntlich”) that Müller should leave him “in peace and in quiet” (“mit friden unnd rüwig”). Here, at this point, Zimbermann described how he even resisted a direct challenge after Müller told him in response that he should defend himself. As Zimbermann wrote, “he screamed at me—I am writing this with due respect—you good for nothing, you are fleeing from me, you have no heart to defend yourself, but I did not heed him and let him say what he wanted and pursued my road homewards.”73 Yet even after this exchange, according to Zimbermann, Müller did not leave him in peace. Zimbermann met him on another day, when Müller was on his way home drunk from a wedding. On this occasion he accused Zimbermann of calling him a “lump” (“lout”) and a “good for nothing” (“schelm”).74 Zimbermann answered that it was not true that he had called him names, whence Müller became “angry” (“zornig”) and taunted him again with the words: “you fled from me the other day, and you have no heart to defend yourself like a man.”75 Zimbermann insisted that even at this point he had not risen to such taunting, but had told him “he should leave me in peace and quiet tonight, a drunk and

71  Ibid. 72  Ibid.: “er wölle derowägen mir die sach noch wol machen, mit reverenz zů melden der thüffel näme mich dän …” (…“he wanted to get even with me, and—I am saying this with due respect—that the devil should get me”). 73  Ibid.: “… und schreüwe mir zů mit Reverenz zů melden, dů schelm, dů flüchst mich, unnd hast kein hertz das dů dich dorffist meinen werren, da ich seinen kein achtůng gehabt, und liesse ine reden waß er wolt, gienge mein straß vort unnd heim.” 74  Ibid. 75  Ibid.: “… wird er zornig … du bist mich nächern gflochen und haßt kein hertz das dů dich dörfist eine manß weren …”

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a sober man do not suit each other, if he had anything to say to me, he should come to me on the next day and leave me tonight in peace and quiet.”76 In his letter Zimbermann entreated his “Herren” (“lords”) to see that he was not a “unglicksmacher” (“troublemaker”) but had behaved towards his provocateur like a “child” (“kind”), thus stressing his pure and innocent intentions. He stressed that in this encounter he had once again been “the better man” (“der Bessere”) when he asked him to leave him in peace, and had not risen to Müller’s continuing provocations and insults. In answer to Müller’s threats, Zimbermann thus presented himself as acting in accordance with the commands of the city laws that demanded Zurchers to make peace with their opponents. In contrast, Zimberman portrayed Müller as acting in continuous violation of these laws, accosting him without reasons, not heeding his pleas for peace and even drawing his knife during their first encounter, which was a punishable offense according to the city statute. Zimbermann also asserted that Müller had deliberately risked or planned to break the law since he had boasted to him during their second encounter that he had put money aside in order to cover any fine he might incur during a fight with Zimbermann.77 Yet, as Zimbermann claimed, Müller’s repeated insults and threats had eventually punctured his calm demeanour. After he had once again resisted Müller’s challenge following the wedding, Müller finally succeeded in delivering an insult that no longer left Zimbermann unmoved. After telling Müller to leave him in peace and come to him in the morning instead, Müller had apparently said that Zimbermann had told others that he had to pay a fine as well as Müller, implying that Zimbermann had publicly admitted insulting or attacking Müller, actions punishable by a fine. Zimbermann denied this, but told him in return that it had been Müller who had told people that Zimbermann had already saved the money for such a fine. Müller then became “enormously angry” “gwaltig zornig” and told him that he was lying like a thief. After Zimbermann denied once more that he had said anything about a fine, Müller repeated the insult.78 “Thief” and “liar” were both considered extremely dishonorable insults in Zurich’s culture, and the repetition of these words finally pushed Zimbermann over the edge. He wrote that “you, my lords and fathers, must surely understand that I could not continue to do nothing in the face of

76  Ibid.: “… er sölle mich hüt abend mit friden und rüwig lassen, ein vollen und ein leeren ziehind gar nit zůsamen wan neechwaß an mich zůsprächen habe, söle er morgen zů mir komen und mich uff disen abend mit friden und rüwig lassen.” 77  Ibid.: “… er hab seine bůß schon albereit gleit …” 78  Ibid.

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such words that violated my honor, and that I had to attack and hit the late Caspar Müller for my honor’s sake, and thus hit him with my fist in the face.”79 With this explanation, Zimbermann had switched the parameters on which his justification rested. While his blamelessness consisted first in his law-abiding and peaceful behavior, his lack of guilt was now grounded in a code of masculine honor which had left him no other choice. Before hitting Müller, Zimbermann had resisted the requirements of such a code of honor even to the point of ignoring a direct challenge. To be sure, according to the rules of such a code, ignoring challenges and thus not accepting the challenger as a worthy opponent constituted an insult. Zimbermann had thus indirectly provoked Müller to more and more desperate attempts to acknowledge him as an opponent. This explains why Müller goaded Zimbermann at last with the statement that he had told other people about a fine he would incur after a fight with Müller. With such a statement, Zimbermann would have publicly acknowledged an enmity with Müller, and thus accepted him as an opponent. When he crowned these attacks by insulting Zimbermann as a lying thief, Zimbermann had finally to admit that his honor was damaged. He implied, therefore, that peacefulness could only carry one so far, and that there had come a point when Müller’s behavior had forced him to resort to a different cultural code that justified the use of violence in the defense of honor. At the same time, Zimbermann had managed to present himself as a man of peace until the last moment. His lengthy description of the prehistory of his fatal encounter with Müller was a clever strategy. His story slowly built to a climax, but while this climax brought with it a loss of Zimbermann’s composure, he had mastered the various stages leading up to it with admirable self-control. In this manner, Zimbermann had managed to construct a story in which the slap he gave Müller was an understandable act of exasperation after unbearable provocation rather than one born of mere aggression.80 But nor did Zimberman’s story end at this point. After he slapped Müller, Müller tried to draw his knife, but before he could to so, a bystander named Claus Breittenstein asked him to give the peace, or Stallung (i.e. “cessation of a fight”). Every Zurcher was obligated by law to demand Stallung from disputants 79  Ibid.: “… da khonend ir minen Herren und Vätter wol erkhänen daß ich uff die ehrverletzlichen wort, nit hab könen für khomen, sonders von wägen minen ehren halben, ime, C. M. sälig angriffen und zů im eschlachen müssen, und schlůg in erstlich mit der fůst in das angsicht …” 80  Davis describes that authors of remission letters employed similar narrative tactics in preparing the climax of their story; Fiction, e.g. p. 37.

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on pain of a fine, although a fine could also be levied if a disputant refused to give the peace. Once Stallung was promised, any act of aggression committed “über die Stallung” (i.e. in violation of the Stallung) was punished with a higher fine than if no such peace had been given. A state of Stallung ended only with a formal ritual of “abtrinken”, (“mutual toasting”). Violations of the law were then punished once again with regular fines.81 Towards the culmination of his conflict with Müller, Zimbermann described how Müller denied the offer of Stallung several times and continued to insult him. Zimbermann wrote that Müller goaded him with the words: “I should defend myself, since I had good cause to do so and because no one had taken the peace from me yet.”82 Müller tried to create a situation where Zimbermann would force him to defend himself, allowing him to achieve his goal of fighting Zimbermann without increasing his potential fine further, since his refusal to give Stallung would already come dear.83 Zimbermann portrayed his reaction at first in terms in accordance with a code of peace. While Claus Breittenstein and other bystanders repeatedly tried to take Stallung from Müller, Zimbermann wrote: “I kept so quiet that no one might have known I was involved.”84 Finally, however, he reported that “Caspar Müller hit me and used such words that I could do nothing but defend myself as best as I could and thus hit him in the face with the knife’s sheath.”85 Zimbermann had in this way balanced his previous description of his prior aggression towards Müller for honor’s sake with a further insistence on his peacefulness. The final, lethal stroke only occurred when Müller forced him into a situation where he had to defend not only his reputation but also his physical integrity. When it came time to judge the case, the Zurich city council believed Zimbermann’s representation of his act, which was also corroborated by

81  See Pohl; “Uneasy Peace,” pp. 28–54. 82  See StaZH A 17.2., Letter from Melchior Zimbermann from February 9, 1602.: “… ich sölte mich da ich dan noch gůtte ursach gehabt, sÿnen nach mallen zů weren, die will nach niemand frid von mir gnomen hat, mich gägen ime zů weren.” 83  Müller may also have finally agreed to give the peace; the council at least assumed that he had done so, or equated his aggression after refusing the peace with a breach of the peace. They wrote in their verdict that Müller had violated the peace; see ibid., protocol of the second trial day from March 1st. 84  Ibid.: “… dann ich mich so stil gehalten, das schier niemand gwüßt das mich ahndrifft.” 85  Ibid.: “do schlüg vilgemelter C.M. sälig uff mich zů, und mit worthen zůgrett das ich nit hab khönnen fürkhomen, sonders mich seinen weren uff das Best so ich könnte, da thraff ich ine in das angesicht, mit dem wehrscheid …”

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witness testimony; they offered him Geleit to the second trial day, and subsequently acquitted him.86 In these statements from the sixteenth and early seventeenth century, slayers made strategic and confident use of a concept of honor that allowed them to claim prestige as honest and law-abiding citizens. This concept of civic honor could be linked with arguments based on a cultural convention that tolerated the violent defense of insults, even as it circumscribed the use of such arguments. In his letter, Zimbermann used them as a rhetorical strategy of last resort after describing in detail how his peaceful and law-abiding behavior had failed to stop Müller’s aggression. And yet throughout, probably because he was sure of lenient treatment, Zimberman adopted a confident stance, devoid of pleas for mercy. Other slayers, in not quite so comfortable a position, chose to address the council in a more humble manner in their letters.

Rhetorics of Supplication

“The tone of proud virtue” characteristic of sixteenth-century statements of slayers who came to their trial was only marginally touched with professions of regret. This was despite the fact that slayers began to use a stock phrase which appears regularly in the Urteilbriefe, which declares that the slayer “was heartily and truly sorry” about the killing.87 The use of this phrase was perhaps due to rhetorical conventions observed by Ratsredner who might have advised slayers. We find such conventional expressions of regret in a more embellished form in a few extant letters written by slayers during the sixteenth century. In these cases, slayers escaped after their homicide and wrote letters to the council containing their defense, and were later convicted of honorable manslaughter. Yet when they wrote their letters, their position must have been more vulnerable than that of the slayers just mentioned. The records do not mention that either of these slayers received Geleit, and the records suggest that during the trial, conducted in their absence, accusers levelled a hohe Klage against them.88 Less assured of either the council’s leniency or the injured party’s 86  See ibid., protocol of the first trial day from February 13, 1602. Zimbermann was offered Geleit both to and from his trial day, which equaled the promise of a lenient sanction. Müller’s family had not raised a hohe Klage, see also Chapter 4, p. 228. 87  See e.g. StaZH A 17.1., 1528, unnumbered. 88  Hans Zennder complained in his letter to the council that he had been “schwer verklagt” (“gravely accused”); see StaZH A 27 11, 1535. Heini Weber wrote that he he had fled because

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willingness to reconcile, most of these slayers also claimed self-defense and mentioned their own peaceful behavior. In his 1535 letter, for instance, Hans Zennder asserted that he had replied “gütlich” (“in a friendly manner”) to the initial provocation of his victim.89 In such letters, slayers nevertheless adopted additional rhetorical strategies that differed from those just discussed. Since these defenses were in epistolary form, they could contain phrases that belonged to the conventional stock expressions typical of letters of supplication in general, such as pleas for mercy and forgiveness, which were absent in sixteenth-century oral statements.90 The letter of Heini Weber from 1532 even consisted solely of a plea for mercy. Unlike the other letter writers, he did not take the opportunity to justify and explain his homicide to the council. He was a known troublemaker, who had been sentenced to death previous to his homicide but let off out of mercy. Perhaps aware that the council was prejudiced against him, he thought it best not to attempt to defend himself but threw all his effort into one great plea for forgiveness and begged that the council “help him back to his wife and children and to his fatherland.”91 Weber was captured before he could send the letter, which was found in his pocket.92 His pleas turned out to be of no avail and he was executed as a dishonorable slayer.93 The fact that the authors of the other letters all took the opportunity to explain and justify their deeds suggests that whether he pleaded for mercy or included a justification of his homicide in his letter depended both on the slayer’s social standing and the circumstances of the deed. Slayers could use such conventional pleas for mercy strategically and intersperse them with a Christian rhetoric of forgiveness. Some tried to curry favor he had been warned that things might turn out badly at his trial; see StaZH A 27 5, 1532. In Felix von Egeri’s case, the trial record, the Urteilbrief, indicates that the victim’s family had raised a hohe Klage; see StaZH A 17.1, 1543. 89  StaZH A 27 11, 1535. 90  Although some of these letters were written in an informal hand, which suggests that they were written by the slayers or perhaps by friends or supporters rather than by a professional scribe, we may assume that such conventions were widely known. The letters from Cunrat Holtzhalb and Melchior Zimbermann discussed previously did not contain pleas of mercy, probably because they felt greater confidence in their positions. For a further discussion of typical arguments appearing in Zurcher letters of supplication, see Katja Hürlimann, “Er hab viel kleiner Kind”. Argumente vor den Gerichten in der Landvogtei Greifensee im 15./16. Jahrhundert”, in Zürcher Taschenbuch, 115 N.F. 1995, 67–88. 91  StaZH A 27 7, 1532: “… ir weltind mir wider zu min weib und kinden helffen und in mins faterland …” 92  See ibid. 93  See StaZH B VI 253, fol. 56r.

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with the council by deferring to its authority, but also reminded its members of the mercy of God and their duty as Christians. Heini Weber embellished his plea for mercy by claiming that he felt heartily regretful over the recent “accident,” but while he begged forgiveness from the council, he also noted that God had forgiven even those who killed him.94 In his 1535 letter to the council, Hans Zennder wrote that he trusted “that God would not withdraw his divine mercy from him,” adding that God should protect the council from all grief.95 In a rhetorical turn similar to the one used by Weber, Zennder combined a reference to God’s omnipotence with a hint regarding his ultimate mercy. He thus seemed to ask the council whether they could be more severe than the Almighty. Heini Wüst was another slayer who made a special appeal to God’s omniscience. After killing Mattÿß Kienast in 1550, he told the council in his letter that he would abide by their verdict “in the name of God who is the highest judge and who knows truly and undoubtedly about guilt and innocence.”96 Wüst thus endorsed the council’s authority as judges in a humble manner, whilst simultaneously questioning their authority. He hinted that God knew his innocence and that he was the highest judge; if the council would convict him harshly, they would be acting against the true knowledge of God. Such appeals to mercy that at once humbled the slayer and indirectly admonished the council were probably not new rhetorical strategies. We find a similar appeal to the judges reminding them of the mercy of God in a 1485 letter by Hans Asp, who had accidentally killed Ruedy von Rueti but was afraid of the wrath of his relatives. He reminded the council that God had “planted the seed of mercy in the wisdom” of the council members.97 Yet such rhetorical flourishes probably took on added force after the introduction of the 94  Ibid.: “… ich pitt uech ir wolltent mir verziechen got het doch ouch verziechen denen die in dot hent …” (… “I beg you, forgive me, since God has also forgiven those who killed him …).” 95  StaZH A 27 11, 1535: “… dan ich drüw got er werd mir sin gotliche gnad nit einzien got behout uech vor leid …”. 96  A 17.1, June 15, 1550: “… so mus ich mir innamen gottes deß aller obersten richters, der da waarlichen unnd unzwÿffenlich weÿst, schuld und unschuld, solichs auch gfallen … lassen …”. Wüst’s position differed slightly from that of Heini Waeber in that he wrote after a verdict of manslaughter and begged the council members to intercede with the family of the victim on his behalf. He wrote that this family was “vielleicht noch grim hitzig über mich” (“perhaps still in the heat of a grim anger against me”), and therefore made demands that he considered too harsh, for example, that he move away from Zurich. 97  StaZH B VI 235, fol. 379r–381v: “… bei der selben euer wisheit die der schipfer aller ding, mit dem samen der miltikeit und aller gnaden gepflanzet haet …”

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Reformation because they echo Zwingli’s and Bullinger’s teachings on penance and contrition. Both Reformers preached that individuals would know in their heart whether they had been touched by the holy spirit and were truly forgiven. Pastoral authority had no part in this spiritual transaction. By asserting that he knew in his heart that God had forgiven him, a slayer thus indirectly challenged the council’s wisdom, if not their authority, in choosing a stricter path.98 Protestant discourse might have strengthened another claim that we find in two further letters. The aforementioned Hans Zennder and Felix von Egeri both sought to distance themselves from their deeds by blaming fate. In his letter, Zennder wrote that “he was fated to endure ill luck.”99 Invoking fate in this manner might have gained force through the Reformation, as providence was an important element in Bullinger’s teaching about predestination. Of course, slayers who blamed their deeds on fate misunderstood Bullinger’s teachings, and Bullinger himself strongly objected to the use of his doctrine on providence as an excuse for sinful acts.100 In these letters, the attempt to blame fate did not preclude a language focused on the assertive defense of personal honor. Zennder, who blamed his ill luck, also argued that when he heard his victim insult him—“where is that lout?”—, he did not let the matter rest but went downstairs in pursuit of the man who had insulted him, crying out, “who is it that calls me a lout?”101 In doing so he was accepting the challenge to his honor rather than avoiding it. In his letter from 1543, Felix von Egeri, later convicted of honorable manslaughter, argued “that it was a natural trait of every man to hope that he would find luck in this earthly, transient life, but my luck deserted me when I unfortunately killed the butcher Hans Ada last Friday, God have mercy on his soul, 98  It is important to note that such arguments were not incompatible with Catholicism, as the letter by Hans Asp shows, but they were pressed more on the citizens after the introduction of the Reformation. 99  StaZH A 27 11, 1535: “… und mir kein gleik mag werden …” 100  Walter Hollweg, Heinrich Bullingers Hausbuch. Eine Untersuchung über die Anfänge der reformierten Predigtliteratur (Neukirchen, 1956), p. 437. His admonishment might perhaps be taken as evidence that delinquents frequently misused his teaching on providence. However, we find such invocations before the Reformation as well. In his letter of 1483, Hans Asp explained that he accidentally killed Ruedi von Rueti because, when he was rolling stones down a slope for fun, he had not seen him. Asp argued that “things happened according to the will of God” (“got der allmechtig nach sinem goetlichen willen alle ding schickt”); (StaZH B VI 235, fol. 380r). 101  StaHZ A 27 11, 1535: “… wen gant der hudler nachhenn, do stůnd ich uff, gieng hinab und rett, wo bist du, der mich ein hudler schilt …”

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which grieves me much and heartily and which shows that I am thus born to ill luck since the accident turned out in this way.”102 In his effort to distance himself from his deed, Egeri came quite close to blaming fate for it. Yet he proceeded that he still wanted to tell the judges how the “quarrel proceeded between us.”103 Egeri wrote that he and his victim Hans Ada—Egeri was also a butcher— had quarrelled over the price of some meat. During this dispute Ada said in reference to Egeri “so hab er alls gwuess ein ku gehygt” (“that Egeri had surely fucked a cow”), the worst imaginable insult in Zurich’s society.104 Egeri then continued to describe how Ada had attacked him with a sword so that he had to defend himself. Interestingly, in his final paragraph, Egeri did not repeat his claim that he was forced to defend his life against a physical attack, but rather asserted that if Ada had not forced him “mit trotzlichen erverletzlichen worten, alls … mit dem ku gehygen, darzy genottrungt und verursacht worden, min glympf und eer zu beschirmen” (“with defiant and insulting words … as with the cow fucking … to defend his honor and reputation”), his part in this matter would have been avoided.105 In his letter, the language of injured honor had become intertwined with a language of non-responsibility. Egeri thus at once denied responsibility for his ill luck, referring to a higher power beyond his control that had orchestrated events, and claimed responsibility for his actions when he asserted the need to defend his honor. Slayers who wrote from exile to gain the council’s favor trod a fine line between insisting upon the injury to their honor and adopting more humble tones. In writing such letters, they acted both as advocates in their own right and as supplicants, roles which could require different rhetorical strategies. During negotiations for an agreement after a trial, their situation might become similarly double-edged. Forced to at least a year long exile, slayers were dependent on the good will of the victim’s family—and of council members to whom they might ask to intercede with their accusers. Heinrich Haldenstein did so in 1528, as discussed in the previous chapter. In this letter, he asked for 102  StaZH A 17.1, 1543: “… nachdem dann einem jedenn menschennn uns natur angeporenn, das er verhoffet inn diesem hierschlichenden zergencklichen läben etwas glücks zuo erlangnen, so ist mir doch das glück zu niedrig inn dem das uff verschinen frittag wyland Hanns Ada der Metzger leider durch mich vom leben zum todt gebracht sin sol, got der allmechtig sye der selen gneidg, welliches mich hertzlich unnd gröslich bekumbert, unnd dieweyl ich dann also zuo unglück geporen und mit der unfal also haben will …” 103  “… wie sich der handel zwüschent unns verlouffen …” 104  Ibid. 105  Ibid.

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mercy and promised to better himself, yet his submissiveness gave way when he insisted that Bluwler’s stipulations for an agreement insulted his honor. Haldenstein tried to resist being treated by his opponent as a social outcast, and this resistance was partly endorsed by the council members who arbitrated the settlement.106 When compared with those of the fourteenth century, the defenses of sixteenth-century slayers had become more varied and included a range of strategies that they could use to distance themselves from their act. The concept of manslaughter had contracted as the categories of self-defense and dishonorable manslaughter had split from it, which—depending on the circumstances of the slayer and the slayer’s social position—prompted the proud self-defense rhetoric we see in the statements of slayers acquitted at their trials or the more humble tones of those writing from exile who were less secure of their situation. The rhetoric of honor apparent in fourteenth-century statements could be combined with, but also be subordinated to, these rhetorical strategies. During the course of the seventeenth century, we find that new nuances were added to the rhetorical strategies of slayers.

Anger and Drunkenness: Arguments of Diminished Capacity in Seventeenth-century Defenses

The decrease in capital sanctions for manslaughter cases rendered the situation of seventeenth-century slayers more secure in comparison with the sixteenth century. At the same time, slayers faced new hardships, since larger numbers were captured and imprisoned both before and during their trials. Imprisonment could influence the rhetoric of slayers: professions of contrition and pleas for mercy appear frequently in their statements, which were taken during interrogations in prisons or in letters they wrote to the council while imprisoned. In addition, the language of intent crept gradually into the legal vocabulary of homicide records, which was probably a sign of the influence of the ius commune, albeit that such an influence cannot be directly demonstrated or traced. Before the early seventeenth century, the sources do not indicate that the question of intent had been decisive. Judges had already been using terms such as “muotwillentklich” (“wantonly”) or “fuertraechtlich” (“intentionally”) in murder verdicts and those of dishonorable manslaughter during the fifteenth century, but these terms referred to premeditation rather than underscoring 106  See A 17.1, 1527, unnumbered, and the discussion of Haldenstein’s case in Chapter 4, pp. 235.

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the will to kill itself. In the judgment of manslaughter, motivation was the primary factor since it was more crucial to determine whether the slayer had reacted to a provocation, i.e. to an Anlass, than whether he had meant to kill his opponent. Yet during the seventeenth century, judges began to emphasize in manslaughter verdicts that a slaying had been committed without intent.107 Interestingly, the adjective “honorable”—commonly associated with manslaughter—was used in two seventeenth-century verdicts of self-defense where the judges declared that the slayer should be acquitted because he had committed an “honorable manslaughter.”108 As discussed above, sixteenth-century self-defense verdicts had contained phrases that extolled the virtuous behavior of a slayer. It might be argued that the council’s increasing desire to police and “civilize” behavior prompted this use of the adjective “honorable” in conjunction with self-defense, and that it commended these slayers for acting in accordance with the city laws in contrast with the unlawful attacks of their victims. Yet this argument must be put into perspective by the fact that the use of moralizing language decreased rather than increased in homicide verdicts of the seventeenth century.109 As we have seen in the preceding chapter, council members increasingly promoted mediation between the parties during the seventeenth century, preferring this to the use of homicide prosecutions for the moral discipline of slayers. It is unclear, therefore, whether judges juxtaposed in these two self-defense verdicts a concept of honorable and unintentional self-defense with a concept of unintentional manslaughter that was less honorable. At the same time, when 107  See, for example a verdict from 1645 (A 17.3) where the council considered a slaying a “lamentable accident, rather than as an intentional manslaughter” (“… diese tat mehr als ein leidiger unfall dann ein fürsetzlicher todschlag sein soll …”). The term unfall did not refer to an accidental slaying in the legal sense, but meant that the slayer had lacked intent when he killed his victim. 108  See the verdict of the aforementioned Melchior Zimbermann (StaZH A 17.2, 1602) and Urteilsbrief for Heinrich Leeman (StaZH A 17.2, 1625). 109  I have also only found three verdicts of self-defense during the seventeenth century, which makes judgments about the language used in such verdicts difficult. In these verdicts, however, judges did not specifically condemn or extoll the respective behavior of slayer and victim, as they had done during in the sixteenth-century self-defense verdicts discussed above. In the statute regulating the prosecution of manslaughter, manslaughter was called “honorable;” see Schauberg, Zeitschrift, p. 366. In their verdicts of honorable manslaughter, judges commonly used the terms offen (“open”) or wüssenthaft (“publicly known). This varied usage makes it additionally difficult to interpret the legal use of the term “honorable” in these verdicts.

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council members made increasing use of a language of unintentionality in manslaughter verdicts, they implied that a manslaughter now required slayers to distance themselves more strongly from their acts. The extent to which slayers used this language depended on context. When unsure of the council’s attitude, or not yet reconciled with the victim’s family, or else when they found themselves interrogated at the Wellenberg, slayers embellished claims that they had killed unintentionally with arguments that they had not been in complete control of themselves at the time of the slaying. Take the case of the miller Hans Hermann, who killed another miller, Hans Äninger, in 1627 during a dispute concerning the wages they had just received from their guildmaster. Herrmann told the council during his interrogation in prison that Äninger had hit him during this dispute and had refused to make peace when bystanders attempted to reconcile them. Hermann said that Äninger’s refusal “made him … very upset and with great resentment and in greatest anger, he unfortunately drew the knife he always carried in his sack and stabbed him.”110 Hermann continued that he did not know “if he had stabbed him a second time” when the Nachgänger cited this allegation from the witness testimony. He beseeched the council to grant him “mercy and to free him from imprisonment” and that “he would behave honorably and honestly in future, as he had done before this unfortunate occurrence, and he was heartily sorry about this mistake.”111 Here, Hermann used his anger at the victim’s provocation as an excuse for his use of violence. His claim that he no longer remembered how often he had stabbed his victim perhaps implied that his anger had made him lose control so that he no longer knew what he was doing. As his statement shows, Hermann insisted that he was sorry that he had been thus carried away: he called his act “leidig” (“unfortunate”) and a “Fähler” (“mistake”). He implied that this angry reaction had been out of character, since his previous behavior had been beyond reproach. When Hermann used this excuse of anger during his prison interrogation, he had just been confronted with witness testimony that attributed to him a fair share in the origin of the dispute, alleging, for 110  A 17.2, examination from February 1627, “… welliches dan inen … hefftig beduret und im grossen unmuth und höchsten zorn das messer so er alle tag inn synem sack getragen, leider gezuckt und inne erstochen….” 111  Ibid.: “… ob er aber ein oder zween stich gethan, sÿge im eigentlich nit inn wüssen. Bittet Gott und üch mÿn herren gantz trungenlich umb gnad und erledigung der gfangenschaft, welle sich fürohin wie er vor diesem leidigen fal auch gethan, ehrlich und wol verhalten, und sÿge ime dieser fähler von hertzen leid.”

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example, that he had threatened Äninger.112 In this situation, Hermann apparently considered blaming his overwrought emotional state the best strategy.113 Anger was a recurrent excuse during the seventeenth century, which was accepted by council members and occasionally referred to in manslaughter verdicts. A manslaughter verdict from 1625 on Ulrich Stadler’s slaying of Leonhart Vogel reads like a description of an Excess, although this term is never used in the sources: “… both slayer and victim had provoked each other with words and deeds, but the victim had first drawn his knife and provoked the slayer to defend himself who then administered the unfortunate stroke in anger…. and it shall be called an unfortunate accident.”114 In another manslaughter verdict from 1640, the council judged the slaying of Mathias Meisterhansen and wrote that Mathias had been “moved to defend himself and had executed the lamentable stroke in anger.”115 Council members also began to accept drunkenness as an excuse, which had not been mentioned in sixteenth-century homicide records as a mitigating circumstance. In 1621, for example, the council justified a verdict of manslaughter with the assertion that the relatives had not raised an accusation and that “this deed had not been committed intentionally, with premeditation, but had happened in response to the victim’s provoking words and in an incautious drunken and angry manner.”116 It is difficult to trace exactly how these excuses entered the legal vocabulary, what role ius commune concepts 112  See ibid. 113  References to a slayer’s anger as exculpatory had not been part of homicide records before the seventeenth century. References to emotions in homicide records were rare overall, and centered mostly on grief, pain or regret. They appear in homicide records when witnesses wished to convey to the council that the use of violence had been unjust. This was especially true when the violence had not only been unjustified but had been inflicted on a victim who was in a position of social inferiority or at a physical disadvantage. We find such emotional witness statements often in conjunction with unjustified violence towards women. See Pohl, “She was killed wretchedly and without a cause.” During the seventeenth century, expressions of regret became a regular part of the exculpatory language used by slayers. 114  A 17.2., verdict from April 2, 1625: “… das der theter und entlÿbte sich beiderseits mit worten und werken einanderen angegriffen und aber der entleibte zum ersten sÿn wehr gezukt dardurch der theter zur gegenwehr veranlaßet worden da dann derselb im zorn den laidigen stich gethan … das es ain laidiger unfal …” 115  StaZH A 17.3, 1640: “… zur Gegenwehr veranlaßt worden da dann derselb im Zorn den leidigen stich gethan …” 116  StaZH A 17.2, September 1: “das dißer thaat uß keinem vorbedachten fürsatz, sondern uff des entlÿbten veranlaßung mit worten, unbedachtsamer trunkene wÿß und ihm zorn beschechen.”

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played in this process, and whether judges or defendants introduced this language of diminished intent in manslaughter trials. Dana Rabin has pursued similar questions in her analysis of the use of mitigating circumstances in eighteenth-century England.117 She shows that defendants introduced arguments of temporary diminished mental capacity into their pleas in order to escape punishment according to the “bloody code.” These excuses were eventually endorsed by jurors looking for ways to save petty delinquents from the death penalty. By the time diminished intent became an official legal excuse, it had long been used and accepted in the courtroom. Perhaps in Zurich, too, slayers who found themselves in an insecure position introduced their perturbed emotional state in order to forestall charges of dishonorable manslaughter and to satisfy the requirement of unintentionality. Council members might have become increasingly familiar with ius commune parameters of judgment, and were thus ready to accept arguments centered on diminished intent. Unlike in the British context, however, the records used for this study do not allow for more than conjecture as to how these excuses were introduced in Zurich’s manslaughter trials. Claims of mental perturbation could thus be used alongside a pre-existing arsenal of defensive strategies, such as self-defense, references to fate and the will of God, as well as arguments centered on injured honor. Once again, the most inventive slayers were those who needed to bolster an insecure position in exile, or who were interrogated in prison. The following examples from letters and examinations illustrate possible rhetorical scenarios into which arguments centering on mental or emotional perturbation could be built. The narratives that slayers told in their defense did not always remain consistent through the various stages of justice, but could be embellished or changed, perhaps an indication that slayers tried to react to changing circumstances on their own rather than use a ready made strategy devised with the help of a Ratsredner. These factors come to the fore in the case of Jegly Gyr, who killed Jacob Suter in 1664.118 Gyr and Suter had been involved in a dispute when Suter threw Gyr on a manure heap. Gyr had confronted him later, and when Suter threatened him with a hayfork, Gyr hit him with his gun, a blow that proved fatal. Gyr was imprisoned and interrogated twice by two Nachgänger. In his first statement, he distanced himself from his deed by calling the fatal blow a “misfortune,” and an “accident”, which would not have happened if Hans Pfister, who had been 117  See Dana Y. Rabin, Identity, Crime, and Legal Responsibility in Eighteenth-Century England (New York, 2004). 118  Different aspects of the case have already been discussed in Chapter 4, p. 250–255.

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present at the scene, had made peace between them.119 The same Hans Pfister was also held at the Wellenberg because he had failed to make peace. Gyr explained that Suter’s initial provocations had made him “angry, but he had not taken vengeance.”120 But when Suter hit him with his fork, he had become “so angry that he took his gun and hit Suter with it so that he fell down, but he [Gyr] did not know where he had hit him.”121 His claim that he did not know where on Suter’s body the stroke had landed was probably meant to convey that he had not planned to hit Suter where it would most likely prove fatal. Like the slayer Zimbermann in the letter discussed earlier, Gyr described a situation where he had at first resisted taking action, although unlike Zimbermann, he did not remain calm, but became angry. He controlled his anger, however, until he was physically attacked. Gyr thus represented his anger as a righteous fury which resulted from his victim’s provocations, although his claim that he did not recall where he had hit Suter might have also implied that he had not been completely aware of his actions at the time. In his subsequent interactions with the council, Gyr’s rhetoric became more submissive and eventually included a claim of diminished intent. When the Nachgänger examined him a second time in prison, his situation had changed. Though still in prison, with the help of his family Gyr had negotiated an agreement with the victim’s relatives, and the council had agreed to forego the Klage trial procedure. Proceedings consisted now solely of a Nachgang, and to determine how Gyr should be sanctioned the council sent the Nachgänger a second time. A negotiated agreement resulted normally in the typical manslaughter fine and a year-long exile, but Gyr and his family hoped to obtain a reduction of this sentence. His interaction with the council now concentrated on pleas for mercy rather than presenting his actions as self-defense. Gyr declared first that he was heartily sorry “that he had fallen into this misfortune, he admitted his mistake and realized that it had been an awful visitation from God and that he begged for the council’s mercy.”122 Like the slayers mentioned earlier, Gyr thus admitted to wrongdoing, but also partly deflected responsibility to a higher power. In a letter he wrote to the council 119  See A 17.3, examination from September 7, 1664: “misstreich”, “unfahl”. 120  See ibid.: “… zornig worden, aber sich nit gerochen …” 121  Ibid.: “… er Gyr sich also erzörnt das er die by sich habendt Musqueten genommen und genomen und ime Suter solch ein streich geben das er zu boden gefallen, wohin der streÿich gangen wüßt er nit …” 122  Ibid., examination from September 26, 1664: “… daß er in solch groß unglück gerathen, bekent seinen fehler und erkent das er eine schwere heimbsuchung von Gott sy, dene er neben der hochen Oberkeit umb gnedige verziehung bite …”

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a few days after the second visit of the Nachgänger, he voiced once more his plea for a sentence reduction and employed similar mixed rhetorics. He had “sinned against God and his neighbor” and “deserved punishment” but he also pleaded with God not to “punish him according to his just deserts,” but instead to grant him mercy “for the sake of Jesus Christ,” thus suggesting that the council should follow this exemple and grant him mercy too.123 In addition to this language of sin and forgiveness, Gyr also distanced himself from his homicide during his second examination by claiming that he had been “unfortunately in a rather drunken state.”124 This use of drunkenness as an excuse strengthened the claim that the stroke had been “a misfortune” rather than an intentional act, which Gyr had made in his second statement. The argument of drunkenness implied that if he had been in greater control of himself, Suter would have lived and they would have again been “the best of friends as they had been before.”125 Gyr claimed that his responsibility was diminished, since he had not been quite himself at the time of the slaying, and so acted in a way that was not characteristic of him. In 1621, the slayer Jegly Schnidly also augmented and altered his defense through different stages of interaction with the city council.126 He was an inhabitant of the Zurcher Landschaft, and he was first examined by the local Vogt, initially at his home because he was still recovering from wounds he had received during the fight that had preceded the homicide. Upon recovery, he was brought to Zurich and imprisoned in the Wellenberg. During his first examination by the Vogt, Schnidly presented his slaying of Caspar Eyting as an act of self-defense. He took care to point out that he had at first remained aloof during a fight between his brother-in-law, Rudolf Hafner, and Caspar Eyting and his companion. Schnidly claimed that he ran towards the fighters with the sole intention of making peace.127 But Eyting gave him a blow “on the head, so that he fell to the ground.”128 When Eyting and his friend threatened Schnidly 123  Ibid., letter from September 21, 1664: “daß ich wieder meinen so gnädigen got und wider meinen nächsten mich schwerlich versündiget und die straf Gotes wol verdienet … aber ach herr straff mich nit nach meinem verdienen sonder bys myr gnedig und barmherzig umb jesu chrystu wyllen nach deiner gnad und güte willen …” As we have seen in the last chapter, Gyr’s pleas, joined also by those of his parents and the local Amtmann, were successful: his fine was reduced and he did not have to spend a year in exile. 124   Ibid., September 26: “… sÿge leider auch eine ziembliche weinführ dabÿ gewesen …” 125  Ibid.: “… auch wider alls zuvor die besten fründ worden.” 126  See StaZH A 17.2, 1621. 127  Ibid., Letter from the Vogt of Andelfingen to the council from June 2, 1621: “… sÿge er und der fůrman, auch vom wagen gsprungen und zů inen glofen und begert frid zemachen …” 128  Ibid.: “ufen kopf daß er zů boden sincken müeßßen …”

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further that that “they would stay and fight until one would remain on the ground,129” Schnidly got up and retorted that “if matters stood thus and he would have to defend his life, he would do it.”130 Then, Schnidly continued in his statement, they fought for a good while until Eyting sank to the ground. Schnidly told the Vogt that Eyting had tried to get up, but that he had hit him once more while he was still lying on the ground. Schnidly said that he could not remember, however, whether he had hit him more than once.131 Schnidly thus claimed that he had been involved in the fight against his will: he had entered the dispute late and only with the aim of making peace. He thus claimed self-defense and drew attention to his victim’s aggressive behavior. Schnidly might have thought that he needed to emphasize his initially peaceful attitude to downplay his own subsequent aggressive action: he admitted to having stabbed Eyting who was lying on the ground. Although Schnidly explained that the victim was about to get up, it is not clear from his statement whether Eyting was still a real threat. Schnidly’s claim that he could not remember how often he had stabbed his victim also implies that his action was defensive rather than aggressive. Before his second interrogation at the Wellenberg prison, Schnidly apparently had had time to think about his defense and to reconsider his statements. Rather than claiming that he could not remember how often he had stabbed Eyting, he assured the council that he had done so only once, and also changed the timing of his stroke. Now, he claimed that he had struck Eyting once as he fell, but not for a second time as the latter was lying on the ground. At this point, however, the Nachgänger confronted Schnidly with a record of the testimony of witnesses, who told a different story. According to this testimony, Schnidly had struck Eyting several times, but when Eyting was already lying on the ground.132 Apparently pressured, Schnidly now answered “that he had been so drunk and so angry at the time that he could no longer remember what he did, he might perhaps have hit him a few more times once he was lying on the ground.”133 Schnidly then switched to another tactic, conclud129  Ibid.: “… ir müeßßend ufem platz blÿben, oder wir wöllend druffblÿben….” 130  Ibid.: “… wan es doch also sÿn: und er sich sÿnes lÿbs und läbens erwehren müesse, welle er es thůn, und sich auch wehren …” 131  Ibid.: “… als aber derselbig widerumb vom boden uf stahn wellen gange er Schnidly zů hin, und gebe ime also liglingen nach ein streich, möge aber nit wüßßen ob er ime mehr als einen geben oder nit …” 132  Ibid., examination from August 18, 1621. 133  Ibid.: “… er sÿge so thrůncken und zornig gsÿn, das er nit mehr wüße was er gethan, möchte ime vilichter wol nach dem er glegen noch etliche streich gegeben haben …”

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ing his statement with professions of regret and pleas for mercy, in which he was joined by his brother-in-law, Rudolf Hafner, who was also imprisoned for his share in the fight. He insisted with Hafner that he was “heartily sorry and begged beseechingly for forgiveness for the sake of the last judgment and also for the sake of their family and that they wanted to make up for the mistake by living as honorable members of the Swiss Confederacy.”134 This case illustrates that slayers might find it especially opportune to claim a perturbed emotional state or alcoholic intoxication if other evidence went against them. A case from 1692 suggests likewise. In this instance, the slayer Heinrich Schärer had killed under circumstances that might well be considered dishonorable because he had violated a promised peace.135 The council debated whether his life should be spared, but since the victim’s family did not raise a hohe Klage and probably also because his father was a man of some social standing as a judge from a village in Zurich’s Landschaft, the council punished Schärer with ten years of exile and a high monetary fine.136 The details of Schärer’s case reveal that he had been involved in a tavern dispute. He was playing cards and drinking wine with his companions when one of them challenged Schärer over his share of the bill. Salomon Hirt, another tavern guest, butted in and agreed with Schärer’s opponent. Schärer became indignant at Hirt’s interference, and a fight ensued between them. Several bystanders made peace by asking the disputants to promise Stallung, a refusal of which would make the disputants liable to a fine. Schärer promised Stallung, but shortly afterwards hit Hirt on the head with his epee, killing him. This slaying broke the Stallung and was thus not regarded lightly by the council; in the records, Schärer’s attack on Hirt was called a “murderous stroke.”137 Thereafter, Schärer was imprisoned and examined twice by the Nachgänger. He claimed each time that he had not been himself when he killed Hirt, but inflated this claim in his second statement. He at first sought to reduce his responsibility for beginning a dispute. He claimed that “he had been drunk 134  Ibid.: “… bättend hieneben beid samen Euch mÿn gnedig herren dißes ihres begangnen felers halber, so sÿ wol erkhennen khönnind mehrdann groß sÿe, unnd der inen von herzen leid, gantz flehenlich unnd umb deß jängsten grichts willen, und so hoch zů bitten sÿge, umb verzÿhung, und das i rinn ansehen irer wÿb und kinden nach gnaden gegen inen fahrind, sÿ wellind gern sich … als redliche eydtgnoßen bruchen laßen und dißen iren begangnen feler mit wolhalten understahn zůresetzen, wellind ebn so mehr zů vordrist als zů hinderst daran sÿn.” 135  See StaZH A 17.4, 1692. 136  See StaZH B II 639, p. 145, entry from October 10, 1692. 137  STaZH A 17.4, report of Schärer’s examination from October 1, 1692: Schärer was examined on account of his “mordtlichen streichs.”

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and could not say who had first hit the other.”138 In order to account for his violence after promising peace, he said that “he had not felt at peace and that Hans Myer, the bricklayer, had laughed at him because he looked so bad after the treatment he had received [from Hirt].”139 Schärer then argued that he had acted in the heat of the moment without giving thought to possible consequences. When Myer laughed at him, “sye er im zorn erbrunnen” (“a burning anger welled up inside him”) and he took up Hirt’s epee, although he did not know how he got it or where he had got it from and hit Hirt, who was sitting on a bench, giving him a blow to the brain.140 Schärer claimed that he had not wanted to strike Hirt again, and he had also not thought that the blow had been that hard. He had never been involved in a dispute with him before and had always behaved towards him like the “best of guys.”141 He “was heartily sorry about what happened and had not struck with a malicious intention.”142 Schärer’s defense combined various strategies. On the one hand, he claimed that he had not been in control of his actions: he later asserted that he could not remember how he had got possession of Hirt’s epee. His reference to his prior good behavior implied that his stroke had been “out of character”, and strengthened the claim that he had not been himself. On the other hand, he also claimed that he had been provoked, and implied that his honor had been injured when he connected his burning anger with Myer’s laughter. In addition, he argued that he was “üebel zerkratzt”, i.e. badly scratched after the tussle with Hirt.143 There is also a touch of defiance in his statements, when he declared that although peace had been made, he had not felt at peace or content. Although he did not say so explicitly, he seemed to distinguish between an outward peace agreement and an inner acceptance, which, if missing, would not make the promise of peace binding. This would lessen his guilt, since a slaying that broke the peace was murder according to statute. Schärer was re-examined a few days later. In this second statement, he no longer referred to his anger, but instead based his arguments exclusively on drunkenness. He had since then been confronted with witness statements 138  Ibid.: “… er Schärer seÿe trunken gewesen, und könne nit sagen welcher dem anderen den ersten streich versetzt habe …” 139  Ibid.: “… er Schärer aber seÿe niemahlen zufrieden gsÿen auch habe ihm Hans Meyer der Kempfmaurer ausgelachet und gsagt wie er so übel zugerichtet seÿe …” 140  Ibid. 141  Ibid.: “… seÿe ihme der beste kerl gesÿn …” 142  Ibid.: “das begangene ist ihme von hertzen leid und habe er den streich aus keinem bösen vorsatz gethan.” 143  See ibid.

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which confirmed his aggressive behavior. Schärer now thought it best to say that “he had been drunk and could not remember any particulars about the homicide and did not want to contradict the witnesses but that he had not done it with a malicious intention.”144 Apparently, Schärer no longer considered his claim of righteous anger in a self-defense situation opportune, and decided instead to claim that he had no memory of the sequence of events. Mathÿs Nägeli, writing from exile, was another slayer who used anger as a mitigating circumstance, mixing this strategically with Christian rhetoric.145 In his letter from 1642, he employed two interpretations of anger: on the one hand, he represented his emotion as righteous anger—which allowed him to make a conscious judgment of an objective wrong—and on the other, as an emotion that temporarily suspended his reason. After the homicide of his brother-in-law Rudolf Schwartzenbach, Nägeli fled into a nearby monastery that offered asylum and wrote a letter of supplication to the council. Nägeli described in his letter how a dispute had erupted between him and his brotherin-law over dinner, because Schwartzenbach had insulted him. Unfortunately, I am unable to decipher the sentence in which Nägeli describes the insult in the record, but it may read that Schwartzenbach had accused him of lying. Nägeli indignantly told Schwartzenbach that if anyone else had insulted him in this manner, he would have slapped him. Nägeli wrote that Schwartzenbach retorted “that I was not so healthy or so much of a man that I was fit to slap his face.”146 Nägeli responded to this taunt immediately by slapping his face. Schwartzenbach then protested that Nägeli had not hit him like a “biderman” (“an honorable man”).147 At this point, Nägeli lost his patience and stabbed Schwartzenbach. His detailed retelling of Schwartzenbach’s insults constituted an indirect appeal to a cultural convention that would have required him to react to and repel such provocations. But while his report of Schwarzenbach’s insults implied that his anger had been righteous, Nägeli also wrote that his reaction had been “unglückhafftig” (“unfortunate”), and he blamed his fate.148 He wrote: “I became 144  See ibid., examination from October 7: “… er seye trunken gsÿn und wÿße keine eigentliche umbständ dieser that halber zůsagen und könne den kundschafftern nit widersprechen, doch habe er es aus keinem bösen vorsatz gethan …” 145  See StaZH A.17.3, Mathÿs Nägeli’s first letter of supplication, 1642. 146  Ibid.: “… syg nit so frisch und nit ein man das ich ihm dörffe ein multäschen gaeben …” A “Maultasche” (i.e. a slap in the face) was a common response in early modern German culture to the accusation that one had lied, which might support the hypothesis that the previous, illegible phrase reads that Schwartzenbach called Nägeli a liar. 147  Ibid. 148  Ibid.

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angry and the unfortunate stab occurred with a weapon that came into my hand to bring me into this accident.”149 Later he elaborated that “it was unfortunately true that anger was half a madness and the mad stab had turned out very unfortunate.”150 When he referred to the stab as “mad” he used the term “unbesinnt,” which can be translated as “without sense, insane,” or “not in command of one’s senses.” Later in his letter, Nägeli lamented this lack of command again. He explained that Schwartzenbach had given the Anlass, but Nägeli wished “God, that I had just overlooked it and avoided him and if I could have just controlled myself.”151 Nägeli’s lament over his lack of control was an exculpatory strategy, but also one that incriminated him, since he implied that he should have kept his composure in the face of Schwartzenbach’s insults. In order to counterbalance the incriminating aspect of his claim of diminished intent, Nägeli used a Christian rhetoric of mercy and forgiveness which resembled the religious arguments of several of the aforementioned letters. Nägeli subtly implied that Christian ethics required the council to forgive him, and framed his use of religious arguments with a little parable that likened his exiled state to Adam and Eve’s situation after their expulsion from paradise. First, Nägeli wrote that “our first parents in paradise” were not frightened before the Fall when God called them and, like them, “he would have been happy to hear the councillors calling for him” before he had killed Schwartzenbach.152 As he continued, after the Fall, Adam and Eve hid themselves from God when they heard his voice, just as he too, was now hiding from the council. He thus conveyed the message that he accepted his status as a sinner, but then proceeded to assure the council at some length that God “would not ruin contrite children” and he hoped that the council “would forgive him this unfortunate mistake and unintentional accident in their mercy.”153 He knew no “greater comfort than that God in his heaven knew that he never had any malicious intention to harm his brother-

149  Ibid.: “… bin ich im zorn gefalen er brunnen das mir der leidige unglükhafftige stich thrinnen mit einm wehr so mir zům unfahl zůr hand glägen …” 150  Ibid.: “… aber leider wol wahr daß der zorn ein halbe daubsůcht und der unbsint stich so gar unglükhafftig uß gschlagen …” 151  Ibid.: “… Gott hett ich inn nun also uebersechen und mich for im huetten und mich selbst meisteren köennen …” 152  Ibid.: “… unser ersten elltern im Barendÿß … also het ich mich vor dyeserem gfröwat wan mÿn vätterliche oberkeit mir het kann rüffen …” 153  Ibid.: “… er hatt doch nie kein reuende kinder verderben lassen … ir wellend doch mir diesen leidigen vehler und unvorsetzlichen grossen schweren unfal gnediglich verzeihen …”

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in-law until the unfortunate hour was fated to occur.”154 God had thus not only willed this homicide to happen, but had also forgiven him the “unfortunate hour” which had been fated to occur. His temporary state of madness thus did not incriminate him, but rather mitigated his culpability. Nägeli’s letter skilfully interwove arguments illustrating his indignation at his victim’s insults with exculpating claims based on the madness induced by his anger and references to a higher power. So skilful was his strategy, in fact, that it seems likely that he received help, perhaps even from a monk at the monastery where he had sought asylum and who might have supplied some of the religious references.155 Nägeli’s letter also illustrates that the concept of anger used in Zurich sources was elastic; his anger increased from a righteous to an “unbesinnt” anger. The slayer Caspar Vischer added another nuance to the emotion of anger when he linked his emotional perturbation to a higher power—though not to God. In his letter from 1610 he first took care to point out that his victim Diethelm Stapfer had given the Anlass because he had thrown him into Lake Zurich without cause. In response, Vischer had knifed Stapfer, justifying this reaction with the claim that his judgment had been clouded by anger. He wrote: “Driven by anger and advised by the devil—who I unfortunately have to

154  Ibid.: “… in … grosen ellend kein groseren trost dan das gott im himmel weist das ich mein leben lang kein bösen vorsatz oder widerwillen nie zuo im treidt bis die unglückhafftige stundt ueber uns verhaengt …” Nägeli also said that he should speak like Cain and exlaim that his sin was beyond forgiveness, if he did not have the comfort of God’s mercy and the sacrifice of his savior (“allso das ich mit Caim sprächen mueste mÿne sünde sÿegend größer dann siÿ mir verziehen möchtend werden wan ich nit gottes grosen barmhertzigkeit und des verdienstes mÿneß heilandts zu throsten habe …”). 155  Nägeli was sanctioned with the typical manslaughter fine of 20 marks and had to spend a year in exile. During this second exile he wrote another supplication in which he used religious language to justify his request that Zurich’s councillors would allow him to return before his year of exile was over. In this letter he likewise suggested that the council should forgive him because God had done so. He wrote: “I thank both God and the council for the great blessing I have experienced, to have had enough time and opportunity to contemplate my sins and experience during the time of my absence patience, consolation and relief of conscience, all of which the merciful God offered to me and to other contrite sinners for the sake of our saviour and creator, amen” (“thůn ich von grund mÿnes hertzens Gott und oüch mÿnen gnedigen herren danken, umb die groß gnad so mir wÿderfahren allso dß ich zÿt und platz hab mÿn sünd zů erkännen: und inn der zÿt mÿnes usstandts geduldt throst und lÿchterug deß gwüsens zů empfinden, weliches er erbarmende Gott mir und allen rüwenden sündern umb unßers heillandts und erschöpfers willen verleÿhen welle amen.”); ibid., second letter of supplication from May 8, 1643.

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blame—I took the knife and wounded him with this lethal stab.”156 Such anger and diabolical temptation had apparently clouded his senses because, as he continued: “I regret this from my heart but to tell the truth I have no recollection of it, although I do not mean to deny it …”157 The reference to the devil might be incriminating rather than exculpating, but, like Nägeli, Vischer counterbalanced this potential danger with a reference to God’s omnipotence. He wrote that although he had “acted against the heavenly father and his laws…. God must have willed it to happen,” because he wanted to “punish himself and the victim for their sins.”158 Vischer added that he wished that “God the Lord would give you my merciful lords and fathers now and always righteous faith, wisdom and discernment so that my unfortunate deed and other grave matters that might occur will be brought to a good end with moderate means.”159 He thus presented the homicide as an act that God had intended to happen in order to teach him a lesson; in communicating this message Vischer also implied that the council would be wise not to contravene the divine plan. Rudolf Hafner, the brother-in-law of the aforementioned slayer Jagly Schnidly, also gradually embellished the meaning of anger in his letter written from exile to the council in order to downplay his share in the homicide of Caspar Eyting. He claimed that he had attacked Eyting to defend his brotherin-law, and wrote: “When I saw blood I became grimly angry and took up the knife [the knife belonged to his brother in law Schnidly, who had fallen to the ground] and uttered a bad curse and said: if it has to be, it has to be.”160 Although Hafner claims that his anger was justified, the latter statement almost sounds like a purposeful announcement of his violent intent. When Eyting insulted 156  StaZH A 17.2, letter from Caspar Vischer, 1610: “Da mag ich uß trieb deß Zorns und yngäben des bößen feinds (dem ichs leÿder zůmes) das mässer ergriffen und ime mit einn sollichen tödtlichen stich verletzt haben …” 157  Ibid.: “… welliches aber mir vonn grund mynes herzen lÿd und mit aller warheit zereden mir nit bewüst ist, jedoch will ichs nit leugnen …” 158  Ibid.: “… ich dan nit allein wider mÿnen himmlischen got und vater zum allerhöchsten gesündet … wann es anderst nit mit gotes willen gesÿn were, darmit er uns bÿd umb unserer sünden willen straffen wöllen …” 159  Ibid.: “… und das Got der Herr Üch mÿnen gnedigen Herrn und Vättern Jetz und Zů aller zÿt rechten glouben wÿsheit unnd Verstandt gäben unnd verliehen welle, daß diesen mÿn leÿdiger tadt wie auch ander mehr fürfahlende und schwere sachen zů einem ziemlichenn mitel und gůten End bracht und uß gefhürt werden möge, Amen.” 160  StaZH A 17.2, 1621, letter of supplication from Rudolf Hafner to the council, July 2, 1621: “Uff das sich ich blůtt und ergrim auch und zuckt das wer us und thatt ein boeser schwur sagt nur wan es doch sein mus so mus es seyn.”

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Hafner in turn and called him a heretic, Hafer wrote that: “… these unchristian words increased my grim anger, so that I was hitting mightily…. and had to defend myself…. we were so angry with each other that neither of us could think straight.”161 Hafner now claimed that his anger had overcome him like a sort of madness and that he had no longer been aware of what he was doing, which lessened the responsibility he had seemed to accept in his previous sentence when he admitted to threatening Eyting. The general use of anger and drunkenness as mitigating circumstances allowed the portrayal of the homicide as a temporary aberrance and as an unintentional “accident” and thus justified the speedy reintegration of a slayer.162 Caspar Vischer insisted on his impeccable lifestyle to underscore that his homicide was the result of a momentary perturbation rather than an expression of his true character. He asked the council to be merciful, “so that my poor wife and children do not have to depend on village charity and I can raise them with the work of his hands in the honor of God.”163 He also pointed out that he had lived a good life and had not had any alcohol since the New Year.164 The reference to his drinking habits illustrates that drinking could be interpreted in two ways in a legal context: abstinence could be proof of a good character, but temporary alcoholic intoxication could also be exculpating.165 For the council members, neither the slayer’s drunkenness or his anger constituted a character flaw. The acceptance of anger or drunkenness as a mitigating circumstance in 161  Ibid.: “uff diese unchristenlichen wort bÿn ich ergrimmt und howe … trutzenlich und mußt mich iren beiden erweren … wir sind dermaßen erzürnt über ein anderen gsin daß keiner nit hinder sich gedacht hete …” Eyting had previously said to him “… es můß so ein kätzer uff dem blatz blÿben …” (“a heretic like him [in reference to Hafner’s reformed confession as opposed to his own Lutheran confession] had to remain on the square,” i.e. should be left here to die. 162  Similar claims were made by defendants justifying their use of blasphemy in front of Zurich’s courts, see Loetz, Mit Gott handeln, p. 194. 163  StaZH A 17.2, letter from Caspar Vischer, 1610: “… damit die mÿne armen wÿb und kind nit inn betel gericht, sonders ich diesëlbigen it mÿner hand albereit sëlbst zů der Ehr gots uferzüchen und erhallten möge …” 164  See ibid. 165  Council members apparently distinguished here between people who were frequently intoxicated and those who were generally sober and only occasionally drunk. In manslaughter verdicts, references to alcohol were exculpating rather than incriminating despite the condemnation of excessive drinking in the context of sumptuary legislation and also occasionally in verdicts of dishonorable manslaughter. For a discussion of such different uses of drunkenness in a legal context, see also Rabin, Identity, Crime and Legal Responsibility, pp. 81–82 and the discussion in Chapter 3, p. 152.

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Zurich was distinct from a moral or religious discourse which condemned excessive anger or drunkenness. Slayers could thus even argue that anger constituted a sort of temporary insanity long before this category was officially part of the legal vocabulary.166 Dana Rabin suggests that defendants’ claims that they had not been themselves at the time of the crime were often endorsed by witnesses in eighteenth-century England because it allowed community members to distinguish between the offender’s “real” persona and a temporary aberrance due to circumstances beyond their control.167 Similarly, claims of hot anger or drunkenness could justify the reintegration of offenders into Zurich’s community who had killed under somewhat dubious circumstances or where reconciliation between the parties had not come easy. As I have argued in Chapter 3, Württemberg’s law professors and the Oberräte made a similar distinction between a slayer’s general worth as a subject and his offense, although there this distinction was regularly legitimized with the ius commune. The sources also suggest a difference in the interpretation of anger as a mitigating circumstance between Zurich and Württemberg. Since Zurich’s judges did not formally adopt a ius commune framework, they did not have to square their use of anger with juristic literature. I have argued previously that in Württemberg, law professors and Oberräte shied away from overemphasizing the emotional disturbance that resulted from anger. A Württemberg slayer who blamed his furious anger, in the way that Nägeli or Hafner did, incriminated rather than exculpated himself. In their consilia, law professors connected furious anger with intent. Their use of the concept of just anger approximated indignation rather than constituted a case of diminished intent. If a slayer’s cause was “less just,” lawyers might use the excuse of drunken anger, but it was then a slayer’s drunkenness that was responsible for his clouded judgment rather than his anger.168 166  Apparently not even Caspar Vischer’s attempt to blame the devil for his rage irritated the council members. I have found one Württemberg slayer who tried this defensive strategy. This was Friedrich Streit, accused in 1621 of the planned murder of an unsuspecting blacksmith. In his pre-trial interrogation during the processus informativus, he argued that he had spent too much time in the company of godless soldiers and had therefore been seduced by the devil. But the Oberräte took this as an incriminating circumstance since he had intentionally yielded to such devilish temptations; see HStA A 209 B 111. 167  See Rabin, Identity, Crime and Legal Responsibility, for example, p. 82. 168  As discussed in Chapter 3, p. 152, drunken anger allowed Tübingen’s law professors to claim diminished intent without appearing to rely on the arguments advanced by the French Commentators Andreas Tyraquellus and Hyppolitus de Marsiglia, who considered the emotional disturbance resulting from anger mitigating independent of provocation. The theories of these jurists were generally rejected in German juristic literature.

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In Zurich, council members could ignore debates on anger within ius commune literature and apparently made use of a concept of anger that comprised both just indignation and strong emotional disturbance approximating temporary insanity. We cannot take this discussion too far, however, since the sources are too sparse. Further research, taking into consideration records of other crimes, would be necessary to determine more thoroughly how the excuse of diminished intent developed in Zurich’s justice system. It is also important to note that arguments resembling a claim of diminished intent generally played a lesser role during seventeenth-century manslaughter trials, where it was often most important to convince council members that the parties were ready to reconcile. But during moments when a slayer’s fate was insecure, such as when he lay in prison or in exile, or if his slaying came close to resembling a dishonorable manslaughter, such arguments could evidently be combined with other defensive strategies. In Zurich, seventeenth-century statements of slayers and their letters illustrate the extension of a rhetoric of distancing used by slayers, a contrast with the extant sources of the fourteenth century. Nevertheless, the “cocky tone,” or a rhetoric of honor had not disappeared: Rudolf Hafner’s open acknowledgement that he consciously accepted his opponent’s challenge recalls the statement that Hans Habersat gave in 1391 where he described how he had lifted his hand and threatened that “things would not end well” in response to his victim’s provocation.169 Although combined with claims of self-defense or even temporary abdication of reason, seventeenth-century slayers also conveyed that the use of violence had been at least partly justified because their honor had been insulted. The price for this lasting acceptance of a language of honor and a tribute to the council’s claim to supervise violence more closely was perhaps the increased emphasis on the language of intent. As in Württemberg trials, the slaying had to be represented as a “slip” from an expected response, which promoted defensive strategies that wavered between acceptance and abdication of responsibility. Natalie Davis, who described in a different context how French slayers negotiated rhetorics of anger with claims of self-defense, has argued that remission letters had a civilizing function since they required slayers to describe their character and their behavior in accordance with governmental rules and norms regarding proper conduct.170 Davis’ use of the term “civilizing” evokes a recent historiographic debate regarding a postulated long-term change of 169  StaZH B VI 194, fol. 285v–286r, 1391. 170  See Davis, Fiction, p. 57.

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attitudes towards interpersonal violence.171 One aspect of this debate concentrated on the applicability of Norbert Elias’ theory of the civilizing process. Pieter Spierenburg has argued extensively that a decline in homicide rates should be connected with an increasing control of affective behavior during the course of the early modern and modern period.172 A number of German historians of crime, however, rejected Elias’ “process of civilisation” thesis as a model to understand the function of violence in pre-modern Europe.173 Gerd Schwerhoff discussed an additional explanatory model by connecting the alleged change of attitudes towards violence with the extension and differentiation of the legal system which offered disputants increased options of both formal and informal conflict resolution.174 While increased institutional 171  The discussion was initiated during the 1980s by a controversy centered on the question whether available English data concerning homicide rates indicated a decline of violence from the late medieval period to the present. Historians subsequently differed not only with regard to the conclusiveness of the collected data but also proposed varying interpretations of such a postulated decline. See Lawrence Stone, “Interpersonal Violence in English History 1300–1980,” Past and Present 101 (1983), 122–133, J.A. Sharpe, “The History of Violence in England: Some Observations,” Past and Present 108 (1985), 206–215, J.S. Cockburn, “Patterns of Violence in English Society: Homicide in Kent 1560–1985,” Past and Present 130 (1991), 70–106. The conclusiveness of the data used has been further questioned and discussed in the following decades, see, for example, Gerd Schwerhoff, “Criminalized violence” or Pieter Spierenburg, “Long-Term Trends in Homicide: Theoretical Reflections and Dutch Evidence. Fifteenth to Twentieth Centuries”, in The Civilization of Crime: Violence in Town and Country since the Middle Ages, eds, E.A. Johnson and E.H. Monkkonen (Urbana and Chicago, 1996), pp. 63–105. 172  Spierenburg postulates a change from affective to rational violence as well as from ritual to instrumental violence; see “Masculinity, Violence and Honor: An Introduction,” in Men and Violence. Gender, Honor, and Rituals in Modern Europe and America, ed. Pieter Spierenburg (Ohio, 1998), pp. 1–36, or his article “Knife Fighting and Popular Codes of Honor in Early Modern Amsterdam” in the same volume, pp. 103–127. 173  See, for example, Martin Dinges, “Formenwandel der Gewalt in der Neuzeit. Zur Kritik der Zivilisationstheorie von Norbert Elias,” in Kulturen der Gewalt. Ritualisierung und Symbolisierung von Gewalt in der Geschichte, eds., Rolf P. Sieferle and Helga Breuninger (Frankfurt, 1998), p. 171–194, or Schwerhoff, “Criminalized violence” and Spierenburg’s responses to this criticism and the literature cited there: Violence and the civilizing process: does it work? In “Crime, Histoire & Sociétés /Crime, History & Societies,” 5 (2001), 87–105. See also the contributions in the volume Assaulting the Past: Violence and Civilization in Historical Context, ed. Katherine D. Watson (Cambridge, 2007). 174  See Schwerhoff, “Criminalized violence” and Gewaltkriminalität im Wandel (14.-18. Jahrhundert). Ergebnisse und Perspektiven der Forschung,” in Kriminalisieren— Entkriminalisieren—Normalisieren. Criminaliser—décriminaliser—normaliser, eds.

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s­ upport of peaceful resolutions may have enriched the strategies of disputants during a fight and lent greater legitimation to options of conflict avoidance, the sources discussed here do not show a measurable decline in interpersonal violence. This study has pursued a different goal. The cases focused on here illustrate how legal actors at different levels negotiated cultural traditions and values surrounding the concept of honorable slaying with structural changes within the administration of criminal justice. These actors thus participated in “making” a category, which—whether called todslag in Zurich or classed as Excess in Württemberg—could be flexibly adjusted and stretched when applied to individual cases. The language of violence used in front of the court showed a similar elasticity. Like Davis’ protagonists who adapted their stories to the “king’s rule,” slayers and those who counselled them in both Zurich and Württemberg tried to conform to governmental moral norms when they described their behaviour prior to the slaying. But the legal practices described here, whether rhetorical or procedural, cannot easily be mapped onto the “civilizing process.” The process of taming the language of angry, injured honor was constituted by a similar mechanism that propelled the process of drawing the settlement of manslaughter into the orbit of official jurisdiction. The centralization of judicial procedures during the course of the early modern period circumscribed rather than eradicated lenient judicial responses towards the use of violence in the defense of honor. In these revised procedural settings, discourses of unintentionality, gute policey and injured honor coexisted, overlapped, and were strategically employed and modified according to the context of a case.

Claudia Opitz, Brigitte Studer and Jakob Tanner (Zurich, 2006), p. 69. The procedural changes discussed in the past chapters support these hypotheses: in Württemberg and Zurich mediation and restitution were endorsed by state authorities and utilized by legal actors. Joachim Eibach located changes in cultural attitudes towards violence instead in the spread of bourgeois values since the second half of the eighteenth century. Central to this bourgeois value system was a rejection and a distate of violence as a strategy of conflict resolution, which distinguished middle class men both from working class men and the combative masculinity of the aristocracy; see Joachim Eibach, “Städtische Gewaltkriminalität im Ancien Regime: Frankfurt am Main im europäischen Kontext,” Zeitschrift für historische Forschung 25 (1998), 359–382.

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Index of Names and Subjects Accident 41, 58, 83, 99, 102, 102n33, 105, 109, 120, 122, 206n46, 207n48, 222, 248–249, 268, 286, 287n100, 288, 290n107, 292, 294, 300, 303 Accusation procedure 26–27, 69, 98 Acquittal 78–81, 83, 114, 133 Ägidius Bossius 146 Agreements, settlements and trials 43, 52, 54–58, 73–77, 79–84, 91, 100, 100n26, 101, 122, 232, 250 and verdict 255–256, 258 conditions/proscriptions/stipulations  67, 67n97, 212n65, 234–241, 243–244, 244n172, 250, 252–253 negotiation of 8, 20, 43, 55, 60–69, 71–72, 83, 91, 93, 97, 145, 232–241, 247–253, 256, 288, 294 permitted negotiation 17, 50, 59, 61, 64, 66, 66n93, 67–68, 73, 75–77, 92, 130 refusal to negotiate 65n90, 66, 69, 236 see also Totschlagssühne willingness to negotiate 65, 230, 242–243, 246 Aktenversendung 33, 33n106n107, 137, 137n4 see also consilia Anger, as evidence 147–152, 156, 181n183, 289, 291–292, 294, 298–305 Animus occidendi see Dolus Anlass 19, 19n51, 206, 206n43, 208, 267, 290, 300, 301 Arbitrary punishments 59, 147 see also poena extraordinaria Arrest see Imprisonment Asylum 10, 26, 26n76, 118n92, 299 Reutlingen 49, 62, 76, 77n124, 97, 100, 100n26, 105, 117–128, 131, 150 auf freiem Fuß, trial 74, 86–87, 99–101, 104–107, 107n51, 109–111, 117, 120–132, 135 Bahrprobe 170, 170n135 Baldus de Ubaldis 30n94, 38n128n131, 39n133, 140n11, 143 Bambergensis 40–42, 40n143, 41n144n146n147, 42n150 Banishment see Sanctions

Barber (Barbier, Bader) 171–173, 174n151, 176n158, 181, 188n214, 189 Bartolus de Sassoferrato 30n94, 37n127, 140n11, 158, Beistand, Beiständer (Zurich) 230, 247, 252, 264–265 Bell see Malefizglocke Bible see Scripture Blood vengeance 25n70, 29, 65, 91, 204, 206, 212, 214, 214n69, 219, 220, 222, 226, 233, 236, 237n144 Bullinger, Heinrich 221, 274–276, 287 Bürgerlich, trial 97–98, 110, 113, 117 see also Sanctions Capital punishment see Sanctions Carl Friedrich, Duke (regent) 130, 135 Carolina 15, 32–33, 32n104n105, 40–42, 59, 75–76, 140, 141n12, 143n23, 161, 170, 171, 182n186, 188n214, 196, 221n90, 223, 225n103 Carpzov, Benedict 83, 123n115, 144, 144n25, 145n26, 147, 151, 156, 156n71n73, 158, 161, 161n97, 163, 165, 168 Chirurgi see Wundärzte Christoph, Duke of Württemberg 50, 68 Circumstantial evidence see Evidence City council (Zurich) 195–307 (passim) Composition 198–199 City peace see Stadtfrieden City statutes (Zurich) 15, 16, 203, 206, 214n68, 218–220, 267–268, 290, 298 Civilizing process 306–307, 306n173 Civil suit 80–82 Commentators 30, 30n94, 33, 36–39, 40, 140n11, 145–148, 152, 156n71, 304n168 Common good 11, 12, 14, 44, 61, 73, 138, 200 Compensation/Restitution 1–2, 8, 26–28, 39, 43–44, 55–56, 58, 64–65, 72–73, 75, 77–85, 90–92, 91n180, 141, 196, 203, 206, 210, 212, 212n65, 218, 224, 226, 232, 234, 238–239, 241–243, 246, 251–252, 307n174 Confession 26, 53n42, 59, 160, 162, 165, 213n66, 303 Constitutional history (Württemberg) 47

Index Of Names And Subjects Consilium, consilia composition/structure 139–141, 139n8, 140n10, 141n12n14 flexible use of ius commune 139–170 (passim) influence of social/fiscal/utilitarian concerns 141–145, 149, 153, 159, 167–169, 181, 185, 188 medical 181, 183–189, 193 see also Aktenversendung use of, in Zurich 223 Zweitgutachten/“Second Consilia” 129, 153–170 (passim) Contrition see Regret Criminal bell see Malefizglocke Culpa 35, 35n113, 102n33, 165, 168 see also Negligence cum moderamine inculpatae tutelae 37–38 Death penalty see Sanctions Digest 33–37, 140, 144, 146 Diminished capacity/intent 152, 163, 289, 293–294, 300, 304–305 Dishonorable manslaughter (Zurich) 204, 208–210, 214–217, 216n73n74, 219–223, 220n86, 224n102, 233, 257, 270, 275–277, 276n52, 289, 293, 303n165, 305 Drunkenness 36, 37, 41n146, 48, 152, 152n57, 163, 176n160, 181, 254, 263, 276, 278, 292, 295, 298, 303–304, 303n165 Dolus dolus indirectus 123n115, 156, 156n73, 158–159, 161, 161n97, 163, 165 dolus malus (animus occidendi) 34, 140, 143, 145–146, 163, 163n107, 165, 170, 172, 187 Duel 26, 33, 107–108, 108n54 Eberhard I, Duke of Württemberg 49 Eberhard III, Duke of Württemberg 166 Ehrenstrafen (shaming punishments) 94, 94n7, 127 Escape see Flight Evidence 7, 14, 33, 42–44, 53- 54, 57–63, 68, 72–73, 76, 91, 103–104, 111n68, 118, 125, 133, 136–194 (passim) 210, 223, 297 see also Anger Excess 38–42, 58, 80, 84, 93, 93n2, 94, 96, 105–106, 117, 119, 121, 126, 136, 138, 140,

331 143–144, 146–148, 150, 152n57, 154, 159, 260, 292, 307 Examination see interrogation Ex carcere, trial 98–99, 100n27, 101–102, 102n31, 105–107, 110, 112, 117, 132–133 Executioner 93, 98, 98n19, 130 Exile after flight 62, 64–65, 67–69, 73–74, 85, 97, 117–118, 122, 228, 235–236, 239, 255, 288–289, 293, 298, 300, 302, 305 as punishment see Sanctions Expenses 56, 69, 80, 82, 114–115, 231, 242 Farinacius, Prosper 79n132, 140n11 Fate 287–288, 287n100, 293, 299, 301 Fines see Sanctions Fiscal accuser 53, 81, 98, 103–104, 109–110, 112, 116, 133, 139–140, 145, 149, 167, 172, 179, 179n177, 183, 186, 189, 191–192 Fiscal accusation procedure 53, 53n42, 69, 103 Flight 2, 26, 50–54, 73–74, 77–78, 84, 87, 91, 99–100, 101n30, 102, 105–106, 117–136 (passim), 206, 213n66, 216n73, 220, 227–230, 260, 270, 272, 284 Franciscus Aretinus 146 Fustigatio see Sanctions Geleit/salvus conductus (Württemberg) 74, 74n116n118, 80, 86, 99–102, 118, 121, 125, 127, 131, 133–134, 150, 193 (Zurich) 227–229, 274, 279, 284 God’s Will see Fate Guild, master/member 3, 96, 117, 162, 166, 171, 198–199, 199n13, 202, 202n31, 205, 235–237, 239–240, 240n154, 241, 278–279, 291 Halseisen see Sanctions Honor and gender 20–21, 20n52, 205, 262, 262n6 code of 6n13, 18n45n47, 24, 203–204, 262, 270–271, 272n40, 279, 282 defense of 6, 16, 18, 18n45n47, 19–20, 20n52, 40, 42n150, 205–206, 207n48, 259, 269, 271, 278–279, 283, 288, 298, 307

332 Honor (cont.) vocabulary of 38, 261, 263, 270–272, 274, 284, 287–289, 293, 305, 307 Honorable manslaughter (Zurich) 195–259 (passim), 270, 276, 284, 287, 290 definition 204–210, 267, 270, 289–290, 305 punishment 205, 205n39, 206, 208–209, 218–222, 234 see also Sanctions, fines Hyppolitus de Marsiliis 140n11, 146–147, 148n38, 304n168 Imperial Knights 47, 47n17, 49 Imprisonment (Württemberg) 26n77, 51, 54–55, 69–70, 74, 85–86, 89, 91, 98, 99n24, 100–101, 106, 107n50, 108–111, 115–116, 123, 125, 127–129, 132–134, 160, 165, 169, 170n135, 190, 192–193 (Zurich) 207, 227–230, 250–251, 258, 263, 266, 270, 288–289, 291–298, 305 see also Sanctions Inquest, medical 59, 101–102, 124, 126n127, 138–139, 169–170, 172–174, 176–194 (passim) Inquisition procedure 2, 9, 53, 53n41, 210 Intercession see Supplication Intent intentional/unintentional homicides 17, 35, 40–42, 51, 58–59, 61, 63, 68, 100, 103, 105, 109 lack of/unintentional 17, 76, 102, 120, 140, 143–144, 148, 151, 152, 165, 167 slayer’s intent 5, 34, 37–38, 40–42, 41n144n146, 52, 58–59, 60, 62, 100, 102, 106, 144–145, 147–149, 156, 157n74, 158, 161, 170, 172, 304, 307 use of (Zurich) 205n40, 223, 250, 289–291, 293–295, 298–301, 303, 305 Interrogation, of slayers 86, 179, 210, 229, 251–253, 263, 266, 289, 291–298, 304n166 Ius commune 1, 2, 15–16, 18, 29–33, 39–43, 52, 54, 58–60, 72, 75–76, 79, 79n132, 99, 109, 136–194 (passim) use of, in Zurich 196, 223, 289, 292–293, 304

Index Of Names And Subjects Johann Friedrich, Duke of Württemberg 166 Julius Clarus 140n11, 147 Justiznutzung 9, 9n19 Klage, trial (Zurich) 210–214, 267, 269n31, 271, 272n40 used in manslaughter cases in early modern Zurich 224–259 (passim) Klage, accusation (Zurich) 211–217 hohe 230–234, 236, 241–242, 246, 250–252, 284–285 ziembliche 230–231, 242–244, 246 Kriminalitätsgeschichte and Rechtsgeschichte 4–5, 4n7, 5n9 historiography of 4–18 (passim) Labor, forced see Sanctions Landesordnung, territorial law 58, 61, 62n74, 70, 75, 78–79, 100 Language see Rhetoric Lauterbach, Wolfgang Adam 102, 102n33, 105, 114, 114n77n78, 123 lex Aquilia 35 lex Cornelia 34–36, 34n108n109, 146 lex Julia 35, 36n120, 37 Lindenspür, August 93–94, 100, 104 Malefizglocke (criminal bell) 97–134 (passim) Mediation/Arbitration 43–44, 51, 54, 56, 58, 66, 68, 73, 75–76, 79–80, 197, 202, 212, 218, 232, 235, 237–241, 255 Medical inspection see inquest Menochius, Jacob 146 Mercy appeals to 55, 62–63, 66n95, 67–68, 73, 129, 135, 173, 239, 243, 247–248, 253–254, 284–289, 291, 294–295, 297, 300–301 use of 51, 55, 57–58, 61–64, 66, 68, 70–74, 79n133, 82, 87, 92, 98–99, 105, 107–110, 115–116, 121–122, 127–128, 130–131, 133, 136, 138, 162, 166, 226, 257–258 Military service see Sanctions Monetary fines see Sanctions Moral discipline 12–13, 18, 48, 152, 200, 215, 221, 257, 274–276, 290–291, 307 Murder 1n2, 16, 20–24, 22n60n61, 23n65, 28n86, 34n109, 41, 41n147, 58–59, 58n61,

Index Of Names And Subjects 63, 86–88, 144, 148–149, 151, 154, 156, 159, 161n97, 163n106, 164, 170n135, 204, 205, 205n39, 208–209, 213n66, 214–215, 229, 250, 269, 289, 298, 304n166 Nachgang  210–214, 211n59, 213n66, 214n67, 224–225, 225n102n103, 226, 228n113, 249, 253–254, 264, 267, 271, 273n40, 294 Nachgänger 228, 228n113, 230–231, 249–252, 253n213, 266, 291, 293–297 Negligence 35, 35n113n114, 40–41, 40n143, 58, 82, 84, 102, 102n33, 105, 107, 120, 154, 165 Negotiation see Agreements Oberrat, Oberräte 43–194 (passim) function 52–54 Old Testament see Scripture Opera publica see Sanctions, forced labor Pardon 79, 85–88, 90, 92, 95, 122, 166 Peace, city see Stadtfrieden Peinlich Beklagter 103–104, 104n39, 107–108, 112–114, 114n76, 158n79, 161n92n95, 167n123 offense 97, 99, 105, 117, 131, 136 See also Sanctions trial/procedure 9, 81n135n138, 88n163, 93–136 (passim), 190, 202 Petition see supplication Physician physicus 171, 174, 176–177, 179–183, 184n196, 189–190 Physicus see physician Poena ordinaria 38, 59, 86, 109, 120, 133, 157, 159, 165, 171, 172, 182, 186, 188–191, 193 see also death penalty Poena extraordinaria 38, 40–41, 41n146, 59, 74, 83, 129, 147, 157, 159, 163, 167–168, 172, 182, 188, 190, 262n6 Policey, gute and criminal law 13–15, 52 and utilitarian aspects 13, 14, 14n38, 61, 63, 95–96, 143–144 concepts of, in Zurich 197, 200–201 Discourses of/concepts of/goals of/ demands of/considerations of 17, 42–44, 56, 57, 61, 82, 84, 91–92, 95, 109, 121–122, 131, 136, 138, 141, 145, 151–153, 167, 169, 175, 194, 307

333 meaning and history of 11–12, 11n26, Polizeiordnungen (policey ordinances)  12–13, 14n35, 16 (Württemberg) 48, 52, 94n6, 96, 137, 141, 171, 191 (Zurich, Mandate) 200, 200n22 Praesumptiones/Praesumptio 59, 59n64, 60–62, 76, 137, 143–146, 157–158, 165, 170 Presumptions/Presumption see Praesumptiones/Praesumptio processus informativus 53–54, 57, 59–60, 72, 79, 106, 111, 304n166 public labor, see forced labor punishment, arbitrary see Poena extraordinaria Ratsredner 216n74, 230, 263–266, 284, 293 Ratsgericht 196n8, 202–204, 210, 212–215, 214n67, 216n74, 217–218, 218n78, 224, 226, 227n107, 262–264 Rechtstage 50n32, 98, 127, 225–227, 226n105, 227n107, 230–233, 230n120, 231n126, 242, 244, 246–249, 252, 254, 257–258, 265, 274 Reformation (Württemberg) 46 (Zurich) 200–201, 221–222, 234, 238, 274–275, 287, 287n100 Regret 28n86, 270, 284, 286–287, 289, 292n113, 297, 302 Lack of 207n48, 267–269 Reintegration (of a slayer into his community) 44, 67, 72, 92, 96, 134, 167, 303–304 Relegatio see Sanctions Reputation see social status Restitution see compensation Rhetoric, in trials 17, 38, 81, 214–217, 215n71, 223, 242–246, 259 see also Honor, vocabulary Salvation 234, 238 Salvus conductus see Geleit Sanctions banishment, permanent (relegatio)  93–95, 95n9, 124, 129, 166–168, 185n199, 257

334 Sanctions (cont.) banishment, temporary 76, 103, 145, 163, 165, 219–220, 234, 247–248, 254, 256–257, 294, 295n123, 297, 301n155 banned from carrying weapons 64, 93–94, 94n6, 95, 145 banned from frequenting taverns 64, 93–94, 94n6, 145, 256–257, 257n230, 276n54 bürgerlich 93, 93n1, 94, 96, 97, 121, 124, 127, 129–132, 134, 138, 154, 163 death penalty 6, 17, 24–26, 34, 34n109, 59, 62n75, 84, 86, 91, 91n180, 113, 116, 145, 148n38, 149, 154–156, 158–159, 161, 161n97, 163–164, 163n106, 165n114, 166–167, 182–183, 185–186, 188, 191–193, 196n8, 206, 208, 209n54, 213n66, 217–219, 221, 222n96, 225–226, 230, 233, 252n208, 253, 257–258, 260, 270, 272, 293 fines 19–20, 24–26, 25n71, 29, 36n120, 40, 50–51, 55–57, 64, 69, 71–95 (passim), 103, 108, 121, 134–169 (passim), 203–256 (passim), 266, 267n21, 270, 281–283, 295n123, 297, 301n155 forced labor 13, 94n6, 96, 96n12n13, 103, 121, 123n116, 124, 124n118, 127, 129–130, 133, 152, 163, 165–166, 180, 185n199, 188, 190n228 Halseisen 93–94, 127 imprisonment 83, 115, 129, 169 military service 13, 108n57, 124, 124n118, 133, 133n160, 156, 159, 185, 185n199 peinlich 93–98, 93n1, 101, 103, 104n39, 124, 127–128, 130, 135, 138, 142–143, 159, 210 whipping, public (fustigatio) 93–94, 129, 142n17, 147, 159, 185n199 Scribes 118, 171, 182, 189, 190–194, 215n72, 243, 261, 265n17, 266 Scripture 140, 161, 163n106, 164–165, 201n23, 223 Self-defense and Carolina 41, 41n144n146, 42n150 and Commentators 37, 37n126n127, 38, 146n33 and Digest 35, 35n115n116 and procedure 58, 79, 99, 101–102, 105–106, 111, 114, 123, 126n127, 127 and restitution 79–80, 79n132, 91n180

Index Of Names And Subjects Claim of 78, 115, 119–120, 140, 154, 190, 261–262, 266, 267–270 (absence of), 272, 273n40, 274, 285, 293–296, 305 Definition of 206, 218–220, 222, 270, 289 medieval laws 39, 39n134n135, 40 Rules of 59, 62, 82, 123, 127, 132, 151, 156, 175, 180, 181n183 Verdicts of 79, 83–84, 91n180, 102, 111, 114, 206–207, 207n48, 220, 220n86, 221n90, 222–223, 223n97, 274–275, 277, 290, 290n109 Service, military see Sanctions Settlements see Agreements Social status 1, 11, 14n38, 18, 27, 29n89, 36, 41n144, 53, 59, 60–62, 68, 95, 98n21, 99, 107–108, 109n61, 110, 111n68, 115–116, 120–121, 123n116, 124, 143, 159, 162, 167–168, 181, 185, 188, 205, 228–229, 234, 240, 245, 262n9, 288–289, 297 Social standing see Social status Sozialdisziplinierung 10, 10n24, 11n24 Stallung 23–24, 254, 272n40, 282–283, 297 Stadtfrieden  6n13, 203–204, 203n32, 206, 210–212, 217–218, 249, 257, 271, 274 Superfacto procedure 10, 102–136 (passim), 193, 193n243 Supplication 2, 14n38, 16, 54, 62–63, 62n75, 66, 68, 72, 74, 81, 86, 87, 89, 90, 96–97, 99, 99n24, 100n26, 107n50, 108, 112, 115, 118–122, 124, 124n118, 125–126, 128–130, 133–135, 140, 143, 155, 159, 162, 164, 169, 185n199, 188, 237, 239, 242, 254, 257–258, 265, 299, 301n155 Surgeons see Wundärzte Testimony/Witnesses 19, 19n48, 22, 22n62, 26, 53n42, 59, 69, 78, 106, 109n61, 111, 121, 131, 132, 132n48, 145, 154, 155n64, 156–159, 160, 165, 175, 179–180, 182, 190n228, 196n8, 197, 204, 205n40, 207–211, 215, 215n70, 222, 225–226, 228–230, 248–251, 253–254, 257, 266–267, 267n21, 268–270, 273n40, 284, 291, 292n113, 296, 299 medical 169, 171–172, 173n148, 174–177, 179–180, 183–184, 187, 189 Theriac 176–177, 176n160, 177n164 Thirty Years War 46, 79, 85

Index Of Names And Subjects Torture 27n80, 53n42, 131–133, 160–162, 160n90, 213n66 Tyraquellus, Andreas 140n11, 147, 148n37, 304n168 Totschlagssühne 1, 27–29, 29n89n92 Trial cost see Expenses Trial days see Rechtstage Ulrich, Duke of Württemberg 45–46, 51, 77n124 Urteilbrief (Zurich) 226–227, 230, 232, 242, 246–248, 264, 284, 285n88 University of Tübingen 50n32, 75, 102, 107, 139, 140n10, 142, 142n18, 148n40, 178n169 see also Consilia Venesection 171, 175–177, 176n161, 177n163n164 Verruf 226 Virtues (urban, civic) 16, 274, 277–278 Weapons, instruments 23n65, 34, 34n109, 37, 41n144, 42n149, 59, 123–128, 143–146, 151–152, 156, 161, 161n97, 163–164,

335 163n107, 175, 186, 203, 223n99, 267, 267n22, 269 see also Sanctions Welsch, Gottfried 178 Whipping see Sanctions Will of God see Fate Witnesses see testimony Women and rhetoric of violence 262, 262n6 see also Honor, and gender use of violence 20, 20n52, 21, 205, 205n41, 262, 262n6 Wounds 34, 38n128, 41n144, 50, 59–60, 73, 85, 101, 106–107, 120, 135, 145–146, 156, 157n74, 161, 167, 169–170, 172–178, 173n149, 176n160, 180–181, 182n186, 183–190, 185n198, 193–194, 224n101, 249 Wundärzte 166, 170–171, 174n151, 175–177, 176n160n161, 177, 177n163, 178, 178n167, 179, 179n177, 180, 182, 183–185, 184n196, 187, 190–191 Zwingli, Huldrych 200–201, 221–222, 236, 238, 238n150, 274–275, 287