Stephen Cummins (Editor), Laura Kounine (Editor) - Cultures of Conflict Resolution in Early Modern Europe-Routledge (2016)

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Cultures of Conflict Resolution in
Early Modern Europe
Cultures of Conflict Resolution in
Early Modern Europe
Edited by
Stephen Cummins and Laura Kounine

Max Planck Institute for Human Development, Germany
First published 2016 by Ashgate Publishing
Published 2016 by Routledge

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Copyright © 2016 Stephen Cummins, Laura Kounine and the Contributors
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The Library of Congress has cataloged the printed edition as follows:

Names: Cummins, Stephen, editor. | Kounine, Laura, 1985- editor.
Title: Cultures of conflict resolution in early modern Europe / edited by Stephen Cummins and
Laura Kounine.
Description: Farnham, Surrey, England : Ashgate, 2015. | Includes bibliographical references and
index.
Identifiers: LCCN 2015020324 | ISBN 9781472411556 (hardcover : alkaline paper)
Subjects: LCSH: Dispute resolution (Law)–Europe–History. | Compromise (Law)–
Europe–History. | Conflict management–Europe–History. | Criminal justice, Administration
of–Europe–History.
Classification: LCC KJC3923 .C85 2015 | DDC 347.4/0940903–dc23 LC record available at
http://lccn.loc.gov/2015020324
ISBN 9781472411556 (hbk)

Contents
List of Figures and Tables vii

Notes on Contributors ix
Acknowledgements xi
Introduction: Confronting Conflict in Early Modern Europe 1

Part I Rethinking Disputes and Settlements
1 Rethinking Disputes and Settlements: How Historians Can Use

Legal Anthropology 17
John Jordan
2 At the Crossroads of Feud and Law: Settling Disputes in Early

Modern Tuscany 51
Marco Cavarzere
Part II Mediation, Reconciliation, Coexistence
3 ‘Types’ of Peacemakers: Exploring the Authority and Self-

Perception of the Early Modern Papacy 77
Christian Schneider
4 Mediation and Reconciliation among Seventeenth-Century

French High Aristocrats 105
Christian Kühner
5 Containing Confessional Conflict in the Military: The Holy

Roman Empire before c. 1650 127
Nikolas Funke
vi Cultures of Conflict Resolution in Early Modern Europe
6 Colonial Conflicts: Factional Disputes in Two Portuguese

Settlements in Asia 151
Tara Alberts
Part III Law, Courts and Conflict
7 Contesting Public Executions in Paris Towards the End of the

Wars of Religion 179
Tom Hamilton
8 Contested Coexistence: Lay–Clerical Disputes and their

Settlement in the Late Medieval Hungarian Countryside 203
Gabriella Erdélyi
9 The Witch on Trial: Narratives of Conflict and Community in

Early Modern Germany 229
Laura Kounine
10 Forgiving Crimes in Early Modern Naples 255

Stephen Cummins
Afterword 281
Stuart Carroll
Index289
List of Figures and Tables
Figures
1 Detail of Vassalieu dit Nicolay, Map of Paris, 1609 185
2 Detail of Figure représentant le supplice & exécution de l’arrest

de mort donné contre le très-meschant, très-abominable & très
détestable parricide Ravaillac le 27 May 1610, engraving by Jan
Ziarnko, published by Jean Le Clerc (Paris, 1610). Bibliothèque
nationale de France 197
Tables
1 Appeals to and death sentences confirmed by the Parlement of

Paris in criminal cases, 1572–1610 191
Notes on Contributors
Tara Alberts (PhD Cambridge) is Lecturer in Early Modern History at the

University of York. Her recent publications include Conflict and Conversion:
Catholicism in Southeast Asia, 1500–1700 (Cambridge, 2013) and Intercultural
Exchange in Southeast Asia. History and Society in the Early Modern World,
edited with D.R.M. Irving (London, 2013).
Stuart Carroll (PhD London) is Professor of Early Modern History at the

University of York. He has wide interests in the history of early modern Europe
and the history of violence. He is currently working on project entitled The
Origins of Civil Society.
Marco Cavarzere (PhD Scuola Normale Superiore) is Alexander-von-Humboldt

Post-Doctoral Fellow at the Ludwigs-Maximilians-Universität in Munich.
Among his main publications are La prassi della censura nell’Italia del Seicento:
tra repressione e mediazione (Rome, 2011), and La giustizia del vescovo: i tribunali
ecclesiastici della Liguria occidentale (XVI–XVIII secolo) (Pisa, 2012).
Stephen Cummins (PhD Cambridge) is Post-Doctoral Fellow at the Centre for

the History of Emotions at the Max Planck Institute for Human Development
in Berlin. His research interests centre on early modern southern Italy and
concern the connections of emotions of relationship – love, hatred, jealousy –
with legal and political contexts. He is revising his doctoral thesis ‘Enmity and
Peacemaking in the Kingdom of Naples, c.1600-1700’ for publication.
Gabriella Erdélyi ‘(PhD Eötvös Loránd University) is Senior Research Fellow in

the Institute of History, Research Centre for Humanities, Hungarian Academy
of Sciences, in Budapest. Her book A Cloister on Trial: Religious Culture and
Everyday Life in Late Medieval Hungary is forthcoming with Ashgate.
Nikolas Funke (DPhil Sussex) is Leverhulme Trust Early Career Fellow at the
University of Birmingham.
Tom Hamilton (DPhil Oxford) is Junior Research Fellow in History at Trinity

College, University of Cambridge. He is revising for publication his doctoral
research on ‘Pierre de L’Estoile and his World in the Wars of Religion’.
x Cultures of Conflict Resolution in Early Modern Europe
John Jordan (DPhil Oxford) is part of the research project ‘Textilien und
materielle Kultur im Wandel’, which studies the influx of Indian cotton textiles
into early modern Switzerland, at the Historical Institute of the University of
Bern. His primary research interests lie in the socio-legal history and material
culture of early modern Europe.
Laura Kounine (PhD Cambridge) is Post-Doctoral Fellow at the Centre for the
History of Emotions at the Max Planck Institute for Human Development in
Berlin. Her research interests focus on the history of crime, gender, emotions and
selfhood in early modern Germany. She is currently revising her doctoral thesis
‘The Gendering of Witchcraft in Early Modern Württemberg’ for publication.
Christian Kühner (PhD Freiburg/EHESS) is Lecturer in Early Modern

European History at the University of Freiburg. His book Politische Freundschaft
bei Hofe: Repräsentation und Praxis einer sozialen Beziehung im französischen
Adel des 17. Jahrhunderts was published in 2013.
Christian Schneider is a PhD fellow in History at the University of Durham.

His research focuses on papal diplomacy during the pontificate of Clement VIII
and he has published an article on the papacy’s diplomatic involvement in the
English succession crisis.
Acknowledgements
This volume developed from a conference held at St John’s College, Cambridge,

in May 2012 on the theme of ‘Cultures of Conflict Resolution in Early Modern
Europe’, where early versions of some of these essays were presented. The
conference received generous support from St John’s College, the Cambridge
History Faculty Conference Fund and the School of Humanities and Social
Sciences Conferences Fund. The editors would particularly like to thank all
those who attended the conference, and especially Stuart Carroll, Malcolm
Gaskill, Mary Laven, Ulinka Rublack and Alex Walsham, who all provided
crucial advice and helped to shape the intellectual scope and discussions of the
conference and, subsequently, the book.
The editors would like to thank their fellow contributors for all their hard
work in shaping this volume. We would also like to thank the contributors
to this book who were not part of the original conference but shared in our
enthusiasm and vision for the volume. The editors, as well as the contributors,
have benefitted from conversations with many colleagues, the names of whom
are too numerous to include here. We would also like to thank the anonymous
reader of the original manuscript, whose thoughtful critiques and suggestions
strengthened and improved our final publication.
We would also like to say a word of gratitude to those involved with the
seminal edited collection Disputes and Settlements, whose work inspired our
conference, and led to this volume, in the first place. This is also a fitting place
to pay a number of tributes. To Simon Roberts, whose essay in Disputes and
Settlements did so much to inspire historians, and who died in 2014. We also
wish to acknowledge the inspiring example and innovative work of John Bossy,
the sad news of whose death reached us as this volume was about to go to press
in October 2015.
We would like to thank Ashgate for the hard work and support we have
received from them in seeing this volume through to completion, in particular
from our commissioning editor, Emily Yates. Finally, we would like to thank
the Centre for the History of Emotions at the Max Planck Institute for Human
Development in Berlin, which has provided a very welcoming and supportive
environment in which we were able to bring this volume to completion.
Introduction
Confronting Conflict in
Early Modern Europe
Some of the most persistent and largest-scale accounts of change in European

history are stories of conflicts and attempts to manage them. The rise of law
courts, the decline of feud, the monopolization of violence by the state, and the
growth of civility and toleration are well-known themes of European history. In
one tradition, the study of conflict was told as a story of how people learned to
restrain hot emotional responses and thus escaped from the violent tenor of the
European Middle Ages. Johan Huizinga’s work was the most famous illustration
of these putatively ‘hot’ medieval emotional styles, and Norbert Elias described
the process of restraint in his Civilizing Process.1 Yet now such narratives of
change are routinely discussed with scepticism rather than accepted as accurate
descriptions of the uniform growth of modernity.2 In part the criticism of
evolutionary accounts of civilization developed as anthropologically inspired
studies grew in popularity and explored what law and justice might mean in
societies lacking legal codes or judicial officials.3 Such legal anthropology of
‘stateless’ places, and the histories of medieval feuding that were stimulated
1
Johan Huizinga, The Autumn of the Middle Ages (Chicago, 1996) was published in
Dutch in 1919 and first translated into English in 1924; Norbert Elias, The Civilizing Process:
The History of Manners (Oxford, 1978) and the second volume The Civilizing Process: State
Formation and Civilization (Oxford, 1982) had been published in an initial edition in
German in 1939. For a summary of these accounts see Ute Frevert, Emotions in History: Lost
and Found (Budapest, 2011), pp. 14–16.
2
For critiques of the civilizing process see R.J. Robinson, ‘“The Civilizing Process”:
Some Remarks on Elias’s Social History’, Sociology, 21 (1987): pp. 1–17; Gerd Schwerhoff,
‘Zivilisationsprozess und Geschichtswissenschaft: Norbert Elias’ Forschungsparadigms in
historischer Sicht’, Historische Zeitschrift, 266 (1998): pp. 561–605; Stephen Mennell and
Johan Goudsblom, ‘Civilizing Process – Myth or Reality? A Comment on Duerr’s Critique
of Elias’, Comparative Studies in Society and History, 39/4 (1997): pp. 729–33; Stuart Carroll,
Blood and Violence in Early Modern France (Oxford, 2006): pp. 308–310.
3
The anthropological insights of the first half of the twentieth century were brought
to historians’ attention most effectively by Max Gluckman, ‘The Peace in the Feud’, Past and
Present, 8 (1955): pp. 1–14.
2 Cultures of Conflict Resolution in Early Modern Europe
by such studies, offered inspiration for seeing both extra-legal mediation and
vengeance (or other ostensibly ‘unrestrained’ practices) as providing order
and delivering forms of justice.4 From anthropological studies it was recognized
that even in stateless societies feud was not just unrestrained violence.5 Instead
it was controlled in a variety of ways by complex normative guidelines. In this
perspective vengeance was a satisfying way of settling scores that, as a process,
naturally included conciliation at its very core.6 However, such practices were
still most often recognized as an effect of the absence of effective social control
emanating from the state, and likely to disappear as the rule of official law
was applied and violence became concentrated increasingly in the hands of
the state.7 But more recently the growth of law and courts has been interpreted
not as a story of effective repression but rather as a result of the growing
financial and emotional attractions of legal process. In this view, state formation
is consumer-led. The decline in private revenge is no longer explained only by
the rising costs of illicit violence but also the emotional, fiscal and strategic uses
of legal action.8 Accounts of the maturing power of states and their law upon
the European stage must be stories of the roles they played in conflicts between
4
A key moment was the influence upon Gluckman’s colleague at Manchester, Michael
Wallace-Hadrill: Michael Wallace-Hadrill, ‘The Bloodfeud of the Franks’, The Bulletin of the
John Rylands Library, 41 (1959): pp. 459–87.
5
Paul Dresch, ‘Legalism, Anthropology and History: A View from Part of
Anthropology’, in Paul Dresch and Hannah Skoda (eds), Legalism: Anthropology and History
(Oxford, 2012), pp. 1–37 (p. 9).
6
As well as Gluckman, ‘The Peace in the Feud’, see the discussion in Paul R. Hyams,
Rancor and Reconciliation in Medieval England (Ithaca, 2011), pp. 14–16. For a later
adaptation see Stuart Carroll, ‘The Peace in the Feud in Sixteenth- and Seventeenth-Century
France’, Past and Present, 178 (2003): pp. 74–115. For a nuanced historical exploration of
the meeting of feuding and manners see Edward Muir, Mad Blood Stirring: Vendetta and
Factions in Friuli during the Renaissance (Baltimore, 1993).
7
See Jenny Wormald ‘The Blood Feud in Early Modern Scotland’, in John Bossy
(ed.) Disputes and Settlements: Law and Human Relations in the West (Cambridge, 1983),
p. 103 and Julius R. Ruff, Violence in Early Modern Europe 1500–1800 (Cambridge, 2001),
pp. 73–5.
8
Daniel Lord Smail, ‘Telling Tales in Angevin Courts’, French Historical Studies, 20
(1997): pp. 183–215 (p. 215) and also his The Consumption of Justice: Emotions, Publicity,
and Legal Culture in Marseille, 1264–1423 (Ithaca, 2003), esp. pp. 243–4. For how some of
this work on local conditions can be combined with the analytical category of social control
see Herman Roodenburg, ‘Social Control Viewed from Below: New Perspectives’, in Herman
Roodenburg and Pieter Spierenburg (eds), Social Control in Europe, Vol. 1 (1500–1800)
(Columbus, 2004), pp. 145–58 (pp. 151–2). For a similar argument for why knife-fighting
declined in favour of the pursuit of disputes in law courts in British-protected Greece see
Thomas W. Gallant, ‘Honor, Masculinity, and Ritual Knife Fighting in Nineteenth-Century
Greece’, The American Historical Review, 105 (2000): pp. 359–82 (pp. 381–2).
people. Critiques of the civilizing process still have to confront evidence of

declining interpersonal violence; yet the varying causes and inconsistencies
of such decline must be addressed.9
In a number of permutations, then, stories of how peaceful coexistence
was practised and how dispute was confronted lie at the heart of stories of
modernity and the decline of violence in Europe.10 Reconciliation also lies
behind interpretations of economic cooperation in the early modern period.11
Hostile relationships and mediation have also framed our understanding of
post-Reformation Christianity. John Bossy connected the varying success
of the post-Reformation churches to their ability to provide effective or
satisfying mediation and peacemaking between people.12 An assumption that
post-Reformation confessional plurality inevitably caused local conflict has
been challenged. Histories emphasizing neighbourly tranquillity and effective
resolution of disputes between communities of diverse confessions now
complement the stark divisions, ritual violence and hard-grained animosities
that could form around confessional divides at certain times and places.13
9
Pieter Spierenburg has pointed out some of the shortcomings of critiques of Norbert
Elias but combines this with agreeing that ‘[t]here was no unilinear and universal evolution
from a violent to a less violent society’, Pieter Spierenburg, ‘Violence and the Civilizing
Process: Does it Work?’, Crime, Histoire & Sociétés, 5/2 (2001): pp. 87–105 (p. 89).
10
For an introduction to the lengthy historiography on the incidence of violence and
homicide in European history see: Pieter Spierenburg, ‘Faces of Violence: Homicide Trends
and Cultural Meanings: Amsterdam, 1431–1816’, Journal of Social History, 27 (1994):
pp. 701–716; Robert Muchembled, A History of Violence From the End of the Middle Ages
to the Present (Cambridge, 2012); Manuel Eisner, ‘Modernization, Self-Control and Lethal
Violence: The Long-Term Dynamics of European Homicide Rates in Theoretical Perspective’,
British Journal of Criminology, 41 (2001): pp. 618–38; Stuart Carroll, ‘Introduction’, in
Stuart Carroll (ed.), Cultures of Violence: Interpersonal Violence in Historical Perspective
(Basingstoke, 2007), pp. 1–46.
11
Craig Muldrew, ‘The Culture of Reconciliation: Community and the Settlement of
Economic Disputes in Early Modern England’, The Historical Journal, 39 (1996): pp. 915–42
(p. 918).
12
John Bossy, Peace in the Post-Reformation (Cambridge, 1998).
13
Mark Konnert, Civic Agendas and Religious Passion: Châlons-sur-Marne during the
French Wars of Religion, 1560–1594 (Kirksville, 1997); Oliver Christin, ‘“Peace Must Come
From Us”: Friendship Pacts Between the Confessions During the Wars of Religion’, in Ruth
Whelan and Carol Baxter (eds), Toleration and Religious Identity: The Edict of Nantes and Its
Implications in France, Britain and Ireland (Dublin, 2003), pp. 92–106; Alexandra Walsham,
Charitable Hatred: Tolerance and Intolerance in England, 1500–1700 (Manchester, 2006);
Benjamin Kaplan, Divided By Faith: Religious Conflict and the Practice of Toleration in
Early Modern Europe (Cambridge, MA, 2007); Jesse Sponholz, The Tactics of Toleration:
A Refugee Community in the Age of Religious Wars (Newark, 2011), esp. pp. 221–2. See also
the contributions to Thomas Max Safley (ed.), A Companion to Multiconfessionalism in the
In early modern Europe the ways in which disputes and discord were
dealt with could vary from person to person and across regional, national and
religious borders, as well as over the overlapping jurisdictions within states.
The methods and resources available to pursue enmities, to make peace and to
resolve conflict depended on gender, social standing and age. Despite variation,
many institutions and practices were shared; conflicts could provide moments
in which states and institutions became manifest in the lives of Europeans.
Reconciliation could be both a formal and informal process. The pursuit of
conflict and its resolution, moreover, as the contributions to this volume show,
could involve whole villages, and all manner of personnel including local
magistrates, legal faculties, priests and pastors, government officials, nobility
and even the Pope. It was also a deeply gendered process.14 Men and women had
different methods of pursuing both conflict and peace and could have varying
experiences of legal and communal processes.15 Peacemaking as practice included
the agreement of more or less formal peace pacts between individuals or families.
This topic has seen considerable interest in histories of Italy in particular.16
Early Modern World (Leiden, 2011), esp. Thomas Max Safley, ‘Multiconfessionalism: A Brief
Introduction’, pp. 1–23.
14
Laura Gowing, ‘Women, Status and the Popular Culture of Dishonour’, Transactions
of the Royal Historical Society, 6 (1996): pp. 225–34; Elizabeth Cohen, ‘Honor and Gender
in the Streets of Early Modern Rome’, Journal of Interdisciplinary History, 22/4 (1992):
pp. 597–625; Linda Pollock ‘Honor, Gender and Reconciliation in Elite Culture,
1570–1700’, Journal of British Studies, 46 (2007): pp. 3–29.
15
For instance, Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early
Modern London (Oxford, 1998); Ulinka Rublack, The Crimes of Women in Early Modern
Germany (Oxford, 1999); Alexandra Shepard, ‘Manhood, Credit and Patriarchy in
Early Modern England c. 1580–1640’, Past and Present, 167 (2000): pp. 75–106; Robert
B. Shoemaker, ‘The Decline of Public Insult in London 1660–1800’, Past and Present, 169
(2000): pp. 97–131; Elizabeth A. Foyster, Manhood in Early Modern England: Honour, Sex
and Marriage (London, 1999).
16
See: Marco Bellabarba, ‘Pace pubblica e pace privata: linguaggi e istituzioni
processuali nell’Italia moderna’, in Marco Bellabarba, Andrea Zorzi and Gerd Schwerhoff
(eds), Criminalità e giustizia in Germania e in Italia: pratiche giudiziarie e linguaggi giuridici
tra tardo medioevo e prima età moderna / Kriminalität und Justiz in Deutschland und Italien:
Rechtspraktiken und gerichtliche Diskurse in Spätmittelalter und Früher Neuzeit (Bologna,
2001), pp. 189–213; Ottavia Niccoli, ‘Giustizia, pace, perdono: a proposito di un libro di
John Bossy’, Storica, 25–6 (2003): pp. 195–207; Ottavia Niccoli, Perdonare: idee, pratiche,
rituali in Italia tra Cinque e Seicento (Rome, 2007); Ottavia Niccoli, ‘Pratiche sociali di
perdono nell’Italia della Controriforma’, in Francesca Cantù (ed.), I linguaggi del potere:
politica e religione nell’età barocca (Rome, 2009), pp. 249–73; Massimo Vallerani, Medieval
Public Justice (Washington, DC, 2012), pp. 174–227; Osvaldo Raggio, Faide e Parentele:
lo stato Genovese visto dalla Fontanabuona (Turin, 1990), p. 176; Daniele Edigati, ‘Pace e
transazione nella storia del processo criminale: il caso toscano nell’età moderna’, in Paolo
Stuart Carroll has surveyed this topic (particularly for France, Germany and
Italy) and has posed key questions for any comparative history of peacemaking.17
The pursuit of conflict, moreover, could take a number of different guises
with a range of intended outcomes. It is important to note that peace was not
always the primary motivation in ostensible contexts of resolution, mediation
or peacemaking. Outside of the discipline of history, conflict resolution has
produced a lengthy bibliography.18
The breadth of topics addressed in this volume reflects the variety of contexts
and meanings of resolution, ranging across social strata, the European continent
and beyond. If we return to John Bossy’s description of the motivation of the
conference that led to the seminal volume Disputes and Settlements we see a
similarly broad set of overlapping interests:
the idea of a social history which would be a history of actual people; a feeling
that the record of law and especially litigation was a good place to find something
about them; some experience in the history of the social institutions of
Christianity considered as peace-making rituals, and a wish to pursue the subject
of arbitration and peace-making as an important matter in itself; and an interest
in the theory of marriage represented in Romeo and Juliet.19
This volume opened up numerous avenues of research and has been an

indispensable foundation for subsequent thinking about the connection
between legal anthropology and early modern history. This volume takes
inspiration from the productive mixture of legal and social perspectives upon
conflict and its (potential) end surveyed in Disputes and Settlements. This
collection also explores what is gained by placing some of the diverse strands
of research produced in the three decades since Disputes and Settlements back
into contact.
The chapters in this volume therefore explore three broad themes:
peacemaking as practice, in particular in conversation with Bossy’s Disputes
and Settlements; the varieties of early modern mediation and arbitration; and
Broggio and Maria Pia Paoli (eds), Stringere la pace: teorie e pratiche della conciliazione
nell’Europa moderna (secoli XV–XVIII) (Rome, 2011), pp. 369–410.
17
Stuart Carroll, ‘Peace-Making in Early Modern Europe: Towards a Comparative
History’, in Paolo Broggio and Maria Pia Paoli (eds), Stringere la pace: teorie e pratiche della
conciliazione nell’Europa moderna (secoli XV–XVIII) (Rome, 2011), pp. 75–93.
18
See, for example, Oliver Ramsbotham, Tom Woodhouse and Hugh Miall (eds),
Contemporary Conflict Resolution (Cambridge, 1999); Mats R. Berdal, Building Peace
After War (Abingdon, 2009); and John D. Brewer, Peace Processes: A Sociological Approach
(Cambridge, 2010).
19
John Bossy, ‘Postscript’, in John Bossy (ed.), Disputes and Settlements: Law and
Human Relations in the West (Cambridge, 1983), pp. 287–93 (p. 287).
the roles of criminal law in interpersonal conflict. There are a set of related
concerns that range across these groupings: the consumer-driven aspects
of the rise in the use of criminal and civil courts from the medieval period
onwards; the complex story of the control of noble violence; and the nature
and challenges of toleration in post-Reformation Europe. One important point
to stress is how many contributors identify the potential illusions in practices
framed as ‘pacification’ or ‘resolution’. Resolution of conflict is far from always a
positive and consensual act. Insteadit is often a product of domination and the
reinforcement of inequality. The study of peace encompasses authority, power
and inequality as well as the ‘better angels of our nature’.20
The related historical approaches in this volume are complemented by
another historiographical issue: that of differing emphases between national
historical traditions. There have been markedly diverse emphases and conceptual
vocabularies used in different traditions, such as the variations Marco Cavarzere
sketches between Italian and British and American historiographies in his
contribution to this volume. Italian historiography has tended to identify
peacemaking as the core of the formation of the state and places legal
management of disputes at the heart of narratives of state power.21 This has
been one consequence of the extensive study of urban factionalism by Italian
historians.22 Another difference that can be cited is the French (and Italian)
usage of the infrajudicial, which has had a less clear impact in English-language
historiography than in French, despite similar interests in popular forms of
dispute management.23
But despite questions of national difference in historical practice, which are
rarely clear-cut, another question of geography is raised in this volume. Studies
of conflict resolution have often been focused on a single locality, but the legal
or political institutions involved often stretched far beyond such geographical
bounds. Indeed, there were many pan-European networks, especially, perhaps,
those of the Catholic Church. This is clear in recent work that examines the
20
For the recent application of this phrase see Steven Pinker, The Better Angels of Our
Nature: Why Violence Has Declined (London, 2011).
21
See Valerio Antichi, ‘Giustizia consuetudinaria e giustizia d’apparato nello Stato
pontificio’, in Paolo Broggio and Maria Pia Paoli (eds), Stringere la pace: teorie e pratiche della
conciliazione nell’Europa moderna (secoli XV–XVIII) (Rome, 2011), pp. 229–75; Andrea
Zorzi, ‘Legislation, Justice and Political Power in Italian Cities, 1200–1400’, in Antonio
Padoa Schioppa (ed.), Legislation and Justice (The Origins of the Modern State in Europe,
13th to 18th Centuries) (Oxford, 1997), pp. 37–55.
22
Marco Dedola, ‘“Tener Pistoia con le parti”: Governo fiorentino e fazioni pistoiesi
all’inizio del ’500’, Ricerche storiche, 22 (1992): pp. 239–59.
23
Benoît Garnot (ed.), L’Infrajudiciaire du Moyen Age à l’époque contemporaine (Dijon,
1996).
connections between local disputes and transnational legal networks.24 This

volume ranges across Europe, east to west, north to south, Protestant to Catholic,
including France, Germany, Hungary, Italy and the Portuguese overseas empire.
While the focus is therefore on Europe, there is also a pressing need both to
address European expansion overseas and to place Europe in relation to other
parts of the world. The presumption of the pacification of Europe and its
virtues of tolerance can be questioned when a broader frame of comparison is
adopted. Beyond the European continent, thinking about imperial legal systems
or regimes of pacification can be reinvigorated by the incorporation of current
understandings of early modern European realities.
Part I, ‘Rethinking Disputes and Settlements’, explicitly situates this book
in dialogue with John Bossy’s Disputes and Settlements, by engaging with and
reflecting upon the various ways that historians and anthropologists have
approached the theme of conflict and its resolution since the publication of
Bossy’s seminal volume 30 years ago. John Jordan opens the section with a
historiographical chapter that explores the influence of legal anthropology
upon early modern history. The collection Disputes and Settlements defined
many of the features of the field for the subsequent generation. The cross-
fertilization between history and anthropology has framed numerous questions
for historians in both obvious and subtle ways. Jordan’s careful tracing of a set
of scholarly preoccupations brings into focus the complexities of the legal. In
particular he leaves us with the reminder that there is no single realm of the law;
plural authorities and overlapping jurisdictions were the rule in early modern
Europe. He suggests that historians need to return to worrying over some of the
questions about what precisely defines the legal and how it relates to the broader
world of the dynamic, processual enforcement of norms.
Marco Cavarzere’s reconstruction of the interventions of the Florentine
authorities into the internal feuding of Pistoia provides a compelling example
of how certain types of conflict became sites for political intervention and the
innovation of new forms of civic government. His work is an example of the
productive result of incorporating feuding and law in the same analysis, leaving
behind assumptions that the two are mutually exclusive. Yet at the same time as
he recognizes the survival of the feud, he also makes the vital point that change
occurred both in how conflicts happened and how they were resolved. ‘Apparent
immobility’ could hide considerable change. The micro-politics of communities
must be combined with a study of the policies of territorial states in order to see
changes that may otherwise be obscured.
24
For an example of early modern lives crossing geographical and legal borders see
Eric Dursteler, Renegade Women: Gender, Identity, and Boundaries in the Early Modern
Mediterranean (Baltimore, 2011).
Then we move to a section entitled ‘Mediation, Reconciliation, Coexistence’,

which groups together four chapters that have a concern with practices of
peacemaking or cultures of mediation. Christian Schneider’s discussion of papal
peacemaking reminds us that this was one of the major roles of the Pope. But
this character of mediation was not unitary. Schneider delves into a number of
examples to demonstrate the importance of breaking down the peacemaking
to show the variety of different powers and attributes behind apparently
similar situations. Schneider’s intervention also alerts us to the significance of
the detailed survey of the specific roles and abilities of individuals for studies
of conflict resolution. The exact ranges of action provided to or possessed by
peacemakers changes how we regard their intervention in conflicts. In the case
of the post-Reformation papacy, Schneider argues that pragmatic ambitions
towards retaining international neutrality sat uneasily alongside ambitions to
supreme authority.
Talk around reconciliation was often different from its reality. Christian
Kühner’s chapter demonstrates this in his study of mediation among the
French high aristocracy. Above all, it is the personal aspects of mediation that
are significant in his narrative. Acts of mediation were interventions between
people, often fraught and reliant on careful stage management. Kühner alerts us
that conflict was essential to aristocratic identity and reminds us of the political
significance of personal relations. Mediation between rivals and the processing
of offences were at the centre of the political life of the French nobility. In his
work, the court emerges as a location where anger was often demonstrated but
practices of intervention were more common than acts of violence. Even in this
context acts of mediation did not simply produce peace but could become sparks
for further conflict or used as cover for the continuation of adversarial relations.
While pacification could be a cloak for hostility, good fellowship could
be found in the midst of war. Nikolas Funke demonstrates that the multi-
confessional companies of soldiers in the Holy Roman Empire, despite their
reputations as violent and godless above all else, developed styles of sociability
that defused or rather avoided confrontation over religious matters. The codes
of soldiery provided a basis for coexistence to triumph within a given company
of soldiers and, at times, between companies on opposing sides. Confessional
variety led to a pragmatic, shared vision of Christianity that either avoided
theological differences or engaged with them in playful sociability. With this
perhaps surprising setting he encourages us to rethink our assumptions about
where and how peaceful coexistence is generated.
Tara Alberts shows the frustrations that even saints-to-be could face when
they became caught up in local conflicts. Alberts alerts us to the fact that the
sources we use to study conflict are often starkly partisan, one side claiming
total innocence and ascribing total guilt to the other. Exploring three factional
conflicts involving ecclesiastics and secular authority, her work places into
question rigid divides between religious and secular peacemaking. She reminds
us that stereotypes about the roles of certain officials were deployed in conflicts,
perhaps altering our understanding of the events themselves. Taking us outside
of Europe, her work raises questions about imperial spaces and questions
assumptions about the division between a pacified European centre and
violent peripheries.
The chapters that make up Part III, entitled ‘Law, Courts and Conflict’,
explore how disputes were pursued in tribunals and investigate the relationship
between law, conflict and communal relations. These chapters further consider
the ways in which the resolution of conflicts could become arenas in which
states attempted to extend their authority yet also vital forums for internal
community politics. States’ interests in pacification did not always have the
simple consequences of increasing power. Programmes of state expansion could
fail to achieve their goals or provide opportunities for the creative usage of state
authority by representatives of local power.
Tom Hamilton explores the fraught place of justice and capital punishment
during the French Wars of Religion. He shows that the ostensible purpose
or meaning of ritual could be challenged or inverted in practice. Further, we
should not reduce a complicated event like an execution to a simple function.
The materiality and contingency of such events meant that they could generate
meanings and effects far from the ideal purpose that inspired them.
Gabriella Erdélyi shows how violence against or involving priests was a local
phenomenon that could also potentially be propelled into the international
networks of the Catholic Church. Here we see elements of Schneider’s
international vision of the papacy and Alberts’ treatment of secular–religious
conflicts. The papal bureaucracy was a resource to be used in local conflicts.
Erdélyi uses her findings to challenge simple accounts of civilizing processes and
asks us to consider the use of law as a weapon rather than as a way to solve or
finish conflict. She further explores how languages of emotions were used to
describe or excuse violence.25
Laura Kounine highlights the complex interpersonal relations that lay
behind a witchcraft trial. She traces how the application of law upon those
accused of witchcraft was a highly fraught process which attempted to establish
the truth of private intentions in the midst of communal life. What Kounine’s
reconstruction demonstrates is that the trial process was a key point at which
conflict between two parties was constructed and solidified. Conflict within
the community could be amorphous, contradictory and transient. The legal
process, in its attempt to create a fixed narrative of criminal intent, solidified
25
See the seminal Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and Their
Tellers in Sixteenth-Century France (Stanford, 1987).
social relations and marked a point of no return. Spaces of justice or law had a
whole range of effects upon the experience of communal life.
Stephen Cummins explores the consequences of a legal institution that a
victim’s kin could issue to forgive an offender for a homicide or other serious
crime in the early modern Kingdom of Naples. Cummins explores the legal and
moral thought around jurisprudence and legal policy and the practical social
consequences of this institution. Viewing the aftermath of violent offences in a
broad perspective illustrates how the problem of peacemaking practices cannot
be reduced to social control but created various effects for offenders and the
kin of victims as well as holding multiple and often contradictory places in
legal and political thought. This book closes with reflections by Stuart Carroll,
which reconnects this volume with the images of European dispute resolution
that John Bossy identified in 1983: feud, charity and law. In doing so, Carroll
reminds us of the continued vitality of Bossy’s original vision: ‘the idea of a social
history which would be a history of actual people’.26
The breadth of approaches – from above, below and ‘within’ – as well as
the range of geographical, historiographical and temporal dimensions, allow
for a book that considers ‘cultures’ both in plural and in contact.27 Alongside
the variety and breadth of the whole, the chapters have a common focus
upon conflict and the multiple, and at times intangible or illusory, notion of
its resolution.
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Part I
Rethinking Disputes and Settlements
Chapter 1
Rethinking Disputes and Settlements: How
Historians Can Use Legal Anthropology
John Jordan*
Just over thirty years ago Disputes and Settlements: Law and Human Relations
in the West was published, raising historians’ awareness of and engagement
with legal anthropology and its methodology.1 Inspired by legal anthropology,
historians began to ask new questions of their sources and to pursue new research
directions. As the contributions to this volume show, the field has continued
to evolve. But, in the intervening years, so has legal anthropology. The Bossy
conference and volume captured a specific moment in time (and a turbulent one
at that) within legal anthropology, not its terminus.
The focus of this chapter is first of all on how legal anthropology itself
has developed among anthropologists, and secondly on how historians have
engaged with the insights and findings of legal anthropology: in short, on how
the legal anthropological turn has come of age within the discipline of history
in the time since Disputes and Settlements was published. A concluding section
suggests some potential avenues for future research. The discussion is meant to
be illustrative of major trends rather than a comprehensive analysis of each.
First, what is legal anthropology? At its core, it is a methodological approach
that attempts to identify rules, whether legal or otherwise, and to observe how
they inform, guide and constrain behaviour. At the same time, it considers these
questions from a human perspective, and asks how people ignore, adhere to or
improvise around rules. Such research is not restricted to courtrooms and other
legal domains. As one of its leading practitioners, Sally Falk Moore, described it:
An anthropological approach to law inquires into the context of enforceable

norms: social, political, economic, and intellectual. This includes, but goes further
than, what Western governments and courts define as law. In anthropology,
while the ‘socio-legal’ includes formal juridical institutions and their social
* I would particularly like to thank John E. Jordan, Stephen Cummins, and Laura Kounine
for their helpful comments, suggestions and patience over multiple drafts.
1
John Bossy (ed.), Disputes and Settlements: Law and Human Relations in the West
(Cambridge, 1983).
surroundings, it also encompasses law-like activities and processes of establishing

order in many other social domains, formal and informal, official and unofficial,
in our own society and in others.2
From Bossy to Today: The Legal Anthropologist’s Perspective
From its inception, a central challenge for legal anthropology has been how to
compare law in Western and non-Western (most frequently African) societies.
Countless debates over whether Western legal categories could be applied to
non-Western societies, including a spirited one between Max Gluckman and
Paul Bohannan, dominated the field in its early years.3 The result was neither
consensus nor a decisive majority for one view. Legal anthropologists instead
began to study order and its points of rupture (disputes), since both could
be studied without defining the legal. Moreover, disputes were considered a
phenomenon that could be compared cross-culturally.4 For most of the 1970s,
such studies characterized legal anthropology.5
But if one takes stock of the field at the end of the 1970s, one sees fissures
beginning to appear in the foundation. Simon Roberts and John Comaroff
argued that the focus on disputes alone was too narrow; rather, ethnographers
needed to study disputes in their ‘total social context’.6 Others charged that these
studies were ‘atemporal’ and failed to take proper account of how the particular
2
Sally Falk Moore ‘General Introduction: What Is an Anthropological Approach to
Law?’, in Sally Falk Moore (ed.), Law and Anthropology: A Reader (Oxford, 2005), pp. 1–4
(p. 1).
3
See Max Gluckman, The Judicial Process Among the Barotse of Northern Rhodesia
(Manchester, 1955); and Paul Bohannan, Justice and Judgment Among the Tiv (London,
1957). Gluckman and Bohannan continued the debate (along with Sally Falk Moore) in
a later volume edited by Laura Nader. See Max Gluckman, ‘Concepts in the Comparative
Study of Tribal Law’, in Laura Nader (ed.), Law in Culture and Society (Chicago, 1969),
pp. 349–73; Sally Falk Moore, ‘Descent and Legal Position’, in Laura Nader (ed.), Law
in Culture and Society (Chicago, 1969), pp. 374–400; and Paul Bohannan, ‘Ethnography
and Comparison in Legal Anthropology’, in Laura Nader (ed.), Law in Culture and Society
(Chicago, 1969), pp. 401–418.
4
As Martha Mundy and Tobias Kelly later summarized the contemporary points
of view, ‘processes and settlement of disputes represented universal, comparable social
phenomena across all societies’. See ‘Introduction’, in Martha Mundy (ed.), Law and
Anthropology (Aldershot, 2002), pp. xv–xxvi (p. xvii).
5
There were disagreements over whether to use the rule-centred or processual
paradigms described by Roberts in his introduction to Disputes and Settlements. The original
inspiration for the processual approach came from Laura Nader; see Nader (ed.), Law.
6
John Comaroff and Simon Roberts, Rules and Processes: The Cultural Logic of Dispute
in an African Context (Chicago, 1981), pp. 13–14.
Rethinking Disputes and Settlements 19
ethnographic moment had been shaped by history and/or power relations.

A third critique noted that such studies often ignored that the society in question
was part of a (often post-colonial) state with its own legal institutions, personnel
and practices that would have shaped its culture of dispute. Still others stressed
that disputes were not in fact a comparable cross-cultural phenomenon because
of the differences in legal and other institutions between Western and non-
Western societies.
Through this last criticism, the definition of the legal domain again raised
its head. For if legal anthropology was going to be comparative, then surely one
must have at least a working or operational definition of what law is. But therein
lay a central bone of contention. Where some scholars called the rules or customs
of non-Western societies ‘law’, or (at the time) ‘customary law’, others steadfastly
maintained that the term ‘law’ should be reserved for the law of the state.7 The
basic disagreement over what constituted the legal domain, and whether it made
sense to isolate legal from social or cultural analyses, led some, Roberts included,
to argue for the abandonment of legal anthropology.8 For if there is no agreement
on the scope of the legal, or no desire to distinguish legal from social processes,
how is legal anthropology distinct from social or cultural anthropology?9
Thus the Bossy volume appeared at a turbulent moment in the short lifespan
of legal anthropology. Yet the field did not cease to exist; rather, its practitioners
regrouped. Two major trajectories shaped this period of refocus.10 The first
considered how best to classify norms and other non-official processes of
order which operated alongside state law. This occurred under the banner of
‘legal pluralism’. The second devoted increased attention to history and power
7
Among the most prominent for reserving ‘law’ for state law was Simon Roberts.
See his Order and Dispute: An Introduction to Legal Anthropology (Harmondsworth, 1979),
pp. 17–29. As noted by June Starr and Jane Collier, William Twining made the point that
customary law is an invention of British lawyers and colonial administrators. See ‘Historical
Studies of Legal Change’, Current Anthropology, 28/3 (1987): pp. 367–72 (p. 368).
8
See Comaroff and Roberts, Rules and Processes, p. 1; Simon Roberts, ‘Do We Need
an Anthropology of Law?’, Royal Anthropological Institute Newsletter, 25 (1978): pp. 4–7;
Francis Snyder, ‘Dispute Processes and Law: A Critical Introduction’, British Journal of Law
and Society, 8/2 (1981): pp. 141–80 (p. 164); Martin Chanock, ‘Signposts or Tombstones?
Reflections on Recent Works on the Anthropology of Law’, Law in Context, 1 (1983):
pp. 107–125. Clifford Geertz weighed in and referred to legal anthropology as a ‘centaur
discipline’, neither fully anthropological nor fully legal. See his Local Knowledge (New York,
1983), pp. 167–234.
9
As Francis Snyder powerfully wrote, ‘The anthropology of law is a myth if conceived
as the search for ahistorical and cross-culturally valid features of law or, alternatively as the
reduction of historically and culturally specific normative forms to ethnographic descriptions
of individual behaviour.’ See Snyder, ‘Dispute Processes’, p. 164.
10
For a succinct overview, see Mundy and Kelly, ‘Introduction’, pp. xvi–xix.
in legal anthropological studies.11 No longer would legal anthropologists ‘isolate

the “legal” as a separate field of study’. Instead, the legal would be embedded in
its holistic social, economic and historical context.12
The move to a more historically inclined approach mirrored a general trend
in social anthropology to reconnect with history. As Kunal Parker argued,
‘the need for anthropology to establish a relationship to history was part of the
effort to rehabilitate anthropology after the anticolonial critiques the discipline
sustained in the 1970s and 1980s’.13 This development brought with it an
increased interest in diachronic processes, particularly as they related to legal
change. As June Starr and Jane Collier summarized it:
instead of focusing on disputes and attempts at settlement of problems, new

objects of study surfaced: how culture mediated legal ideas, the legal strategies
of a ruling or a minority group, the negotiation of a dispute across international
boundaries, the creation by legislation of new ‘redistributive’ networks, how
state-enacted law changed rural agrarian hierarchies, or how less powerful groups
struggled to obtain laws representing their interests.14
But Starr and Collier (and others) were not content with merely expanding
the scope to incorporate history and time, they also wanted to make power,
specifically asymmetrical power relations, a central part of their analysis. The
impetus came from a conference in 1985 whose proceedings were published
as History and Power in the Study of Law (edited by Starr and Collier). With
contributions from many leading legal anthropologists, History and Power
quickly became one of the most influential texts in the field, increasing
practitioners’ awareness of power relations within the realm of law. At its core
11
See, for example, Sally Falk Moore, Social Facts and Fabrications: “Customary” Law
on Kilimanjaro, 1880–1980 (Cambridge, 1986); June Starr, Law as Metaphor: From Islamic
Courts to the Palace of Justice (Albany, 1992); and Sally Engle Merry, Colonizing Hawai’i: The
Cultural Power of Law (Princeton, 2000).
12
To invoke Francis Snyder again, ‘The future development of legal anthropology
lies, therefore not only in elucidating the relationships between social action and cultural
ideologies, but also in grasping the extent to which these relationships and the wider social
processes of which they form a part are the product of specific historical and economic
conditions.’ See his ‘Dispute Processes’, p. 164.
13
See Kunal Parker, ‘Thinking Inside the Box: A Historian Among the Anthropologists’,
Law & Society Review, 38/4 (2004): pp. 851–60 (p. 851). June Starr and Jane Collier
acknowledge the influence of Anthony Giddens and Pierre Bourdieu on these developments.
See ‘Historical Studies’, p. 367. More generally, see Bernard Cohn, An Anthropologist Among
the Historians and Other Essays (Oxford, 1987); and John Comaroff and Jean Comaroff,
Ethnography and the Historical Imagination (Boulder, 1992).
14
Starr and Collier, ‘Historical Studies’, pp. 367–8.
was the conviction that the law is inherently an uneven playing field. As Starr
and Collier wrote in the Introduction, ‘Because all the contributors hold the
view that legal orders create asymmetrical power relations, they also share
the assumption that the law is not neutral. The legal system does not provide
an impartial arena in which contestants from all strata of society may meet to
resolve differences.’15
As a methodological or theoretical stance, Starr and Collier’s position has
had its critics, the most trenchant of whom was Peter Just. To Just, such a position
takes ‘a theoretical stance that is, not to put too fine a point on it, neo-Marxist.
It assigns a primacy to asymmetric relations of power that assumes class interests
and antagonisms.’16 Just was not opposed to power being part of the analysis;
he simply warned ‘that the tendency to reduce all contestations to contests
over class power can obscure other kinds of inconsistencies and contestations’.17
Regardless of whether one views legal relations as generally asymmetrical or not,
power, with due attention to its historical dynamics, has become a central theme
of (legal) anthropological inquiry.
The other response to legal anthropology’s conceptual crisis at the beginning
of the 1980s was the growth of legal pluralism. The term legal pluralism first
entered the anthropological lexicon in the 1960s.18 But it was not until the
1980s that it and its key dimensions were defined, most notably in two articles,
one by John Griffiths and the other by Sally Engle Merry.19 Definitions still vary,
but most would agree that legal pluralism is ‘a situation in which two or more
legal systems coexist in the same social field’.20
15
June Starr and Jane Collier, ‘Introduction: Dialogues in Legal Anthropology’, in June
Starr and Jane Collier (eds), History and Power in the Study of Law: New Directions in Legal
Anthropology (Ithaca, 1989), pp. 1–28 (p. 7).
16
Peter Just, ‘Review Essay: History, Power, Ideology, and Culture: Current Directions
in the Anthropology of Law’, Law & Society Review, 26/2 (1992): pp. 373–411 (p. 384).
17
Ibid., pp. 406–7.
18
See Denis Cowan, ‘African Legal Studies: A Survey of the Field and the Role of the
United States’, Law and Contemporary Problems, 27/4 (1962): pp. 545–75; Franz von Benda-
Beckmann, Rechtspluralismus in Malawi: Geschichtliche Entwicklung und heutige Problematik
(Munich, 1970); Jacques Vanderlinden, ‘Le Pluralisme juridique: essai de synthèse’, in John
Gilissen (ed.), Le Pluralisme juridique (Brussels, 1972), pp. 19–56; and M.B. Hooker, Legal
Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Oxford, 1975). A further
important step was the Journal of African Studies changing its name and focus in 1981 when
it became the Journal of Legal Pluralism and Unofficial Law. See John Griffiths, ‘From the
Editor’, Journal of Legal Pluralism and Unofficial Law, 19 (1981): pp. v–vi.
19
John Griffiths, ‘What is Legal Pluralism?’, Journal of Legal Pluralism and Unofficial
Law, 24 (1986): pp. 1–55; and Sally Engle Merry, ‘Legal Pluralism’, Law & Society Review,
22/5 (1988): pp. 869–96.
20
Merry, ‘Legal Pluralism’, p. 870.
As co-editor of the Journal of Legal Pluralism and Unofficial Law, John Griffiths
was one of legal pluralism’s most influential early advocates. Griffiths’s article,
originally given at the Law and Society Association conference in 1981, argues
against what he termed the ideology of legal centrism, that
law is and should be the law of the state, uniform for all persons, exclusive of all
other law, and administered by a single set of state institutions. To the extent that
other, lesser normative orderings, such as the church, the family, the voluntary
association and the economic organization exist, they ought to be and in fact are
hierarchically subordinate to the law and institutions of the state.21
Instead, Griffiths advocated extending the definition of law to include all forms
of social control or normative order.22 He classified all norms, rules and orders
that arise from social fields as legal in nature regardless of whether they had any
basis in state-generated or codified law. For Griffiths, ‘all forms of social control
are more or less legal’.23 In short, Griffiths regarded the norms and customs of all
societies as ‘law’.
Griffiths’s attempt to expand the realm of law was quickly challenged. Even
like-minded legal anthropologists argued his definition of the law was too broad,
and thus made it impossible to distinguish legal from social norms. Under this
definition, basic aspects of social life, such as etiquette, would fall within the
category of law.24 As Sally Engle Merry wrote, ‘Where do we stop speaking of
law and find ourselves simply describing social life? Is it useful to call all these
forms of ordering law? In writing about legal pluralism, I find that once legal
centralism has been vanquished, calling all forms of ordering that are not state
21
Griffiths, ‘What is Legal Pluralism?’, p. 3. Some, such as the historian Paul Halliday,
have questioned whether this ideology of legal centrism was ever as preponderant as Griffiths
made it out to be. See Paul Halliday, ‘Laws’ Histories: Pluralisms, Pluralities, Diversity’, in
Lauren Benton and Richard Ross (eds), Legal Pluralism and Empires, 1500–1850 (New
York, 2013), pp. 263–72.
22
Griffiths roots his definition of law and legal pluralism in Sally Falk Moore’s research
model of the semi-autonomous social field, a topic that I will return to later in this chapter.
See Griffiths, ‘What is Legal Pluralism?’, pp. 29–37.
23
Griffiths, ‘What is Legal Pluralism?’, p. 39, fn. 3.
24
Sally Falk Moore noted the same problem in Bronisław Malinowski’s approach to
law, famously writing, ‘The conception of law that Malinowkski propounded was so broad
that it was virtually indistinguishable from a study of the obligatory aspect of all social
relationships.’ See Sally Falk Moore, Law as Process (Boston, 1978), p. 220.
law by the term law confounds the analysis.’25 Instead of terming norms, rules
and customs as ‘law’ or ‘non-state law’, Merry prefers ‘normative orders’.26
Others, in particular Brian Tamanaha and Simon Roberts, have taken issue
with using the term ‘law’ to describe forms of normative ordering that do not
correspond to (Western) state law. Roberts sees the Western understanding of the
nature of law as too tied to a specific historical and cultural trajectory to employ
it in such a universal manner.27 Tamanaha has argued against the assumption
of legal pluralists ‘that state law norms and institutions are in fact involved in
the maintenance of societal normative order’.28 For Tamanaha, whether state
law plays such a role is an empirical question to be investigated, not an a priori
assumption. He also noted that such an assumption risks overlooking that law
can be an instrument of power in society.29 The overlooking of power as an
analytical factor was a point that Merry had noted, but she focused on the power
of state law to coerce: ‘I think it is essential to see state law as fundamentally
different in that it exercises the coercive power of the state and monopolizes the
symbolic power associated with state authority’.30
The larger issue remains a definitional one. What exactly is law? What makes
something legal? Is it the positive law or codified statutes of Western countries?
Is it the rules that uphold social order? Is it institutional norm enforcement? Or
is it whatever ethnographers or their informants term law?31 Within legal studies,
anthropology and sociology, there has been extensive debate on the definitional
25
Merry, ‘Legal Pluralism’, p. 878.
26
Griffiths has since reversed field. He now favours the term normative pluralism. See
John Griffiths, ‘The Idea of Sociology of Law and Its Relation to Law and to Sociology’, in
Michael Freeman (ed.), Law and Sociology (Oxford, 2006), pp. 49–68 (pp. 63–4).
27
Simon Roberts, ‘Against Legal Pluralism: Some Reflections on the Contemporary
Enlargement of the Legal Domain’, Journal of Legal Pluralism and Unofficial Law, 42 (1998),
pp. 95–106 (p. 98). Roberts extended this line of analysis in a later article; see his ‘After
Government? On Representing Law Without the State’, The Modern Law Review, 68/1
(2005): pp. 1–24.
28
Brian Tamanaha, ‘The Folly of the “Social Scientific” Concept of Legal Pluralism’,
Journal of Law and Society, 20/2 (1993): pp. 192–217 (p. 210).
29
Tamanaha, ‘The Folly’, p. 211. June Starr and Jane Collier argued the same point; see
‘Introduction’, p. 9.
30
Merry, ‘Legal Pluralism’, p. 879. Legal pluralism has been a subject of a more
extensive debate than can be addressed here. Other important contributions include Chris
Fuller, ‘Legal Anthropology: Legal Pluralism and Legal Thought’, Anthropology Today, 10/3
(1994): pp. 9–12; Franz von Benda-Beckmann, ‘Who’s Afraid of Legal Pluralism?’, Journal
of Legal Pluralism and Unofficial Law, 47 (2002): pp. 37–82; and Anne Griffiths, ‘Legal
Pluralism’, in Reza Banakar and Max Travers (eds), An Introduction to Law and Social Theory
(Oxford, 2002), pp. 289–310.
31
This ‘labelling approach’ was suggested by Brian Tamanaha. See his ‘A Non-Essentialist
Version of Legal Pluralism’, Journal of Law and Society, 27/2 (2000): pp. 296–321.
issue, but neither consensus nor satisfactory definition has emerged.32 For now
scholars are again leaving the definitional quagmire to the side, and focusing
on other matters.33 One eminent legal anthropologist recently questioned if a
definition is even necessary.34
The rise of legal pluralism was also aided by a change in the societies studied
by ethnographers. In legal pluralism’s earlier years, most fieldwork was carried out
in non-Western societies. Since the early 1980s, however, legal anthropologists
have increasingly studied the West. Whereas in non-Western societies it may
have been more difficult to classify plural legal orders (especially non-state
normative orders), legal anthropologists quickly recognized multiple sources
inherent in state law in the West. The law of geographic entities (nations, cities)
is intertwined with tax, criminal and other law codes that can and do operate
simultaneously.35 Furthermore, religious law of Christianity, Judaism or Islam
may intersect with state law.36
Parallel to these developments has been the rise of academic interest in the
expanding range of transnational law. For legal anthropologists, international
organizations, such as the European Union or World Trade Organization,
have increasingly become the site of fieldwork, thereby raising awareness of
mercantile, environmental or human rights law.37 Concomitant with these
developments has been the realization that ‘local places are now intersected
Part of the difficulty stems from theorists’ desire to create a social scientific, cross-
32
culturally applicable definition. It may be that law is too multifarious a concept to permit
such a definition. For recent attempts to craft such a definition, see Brian Tamanaha,
‘An Analytical Map of Social Scientific Approaches to the Concept of Law’, Oxford Journal of
Legal Studies, 15/4 (Winter, 1995): pp. 501–535; Brian Tamanaha, A General Jurisprudence
of Law and Society (Oxford, 2001); and William Twining, ‘Review: A Post-Westphalian
Conception of Law’, Law & Society Review, 37/1 (2003): pp. 199–258.
33
One exception: a group of scholars at the University of Oxford engaged in work on
legalism. I will return to them later in the chapter.
34
Moore ‘General Introduction’, p. 2.
35
On state legal pluralism, see Gordon R. Woodman, ‘Ideological Combat and
Social Observation: Recent Debate about Legal Pluralism’, Journal of Legal Pluralism and
Unofficial Law, 42 (1998): pp. 21–59; and Carol Greenhouse, ‘Legal Pluralism and Cultural
Difference: What is the Difference? A Response to Professor Woodman’, Journal of Legal
Pluralism and Unofficial Law, 42 (1998): pp. 61–72.
36
John Bowen, ‘How Could English Courts Recognize Shariah?’, St. Thomas Law
Review, 7/3 (2011): pp. 411–35.
37
See, for example, Mark Goodale and June Starr (eds), Practicing Ethnography in Law:
New Dialogues, Enduring Methods (New York, 2002); Franz von Benda-Beckmann, Keebet
von Benda-Beckmann and Anne Griffiths (eds), Mobile People, Mobile Law: Expanding Legal
Relations in a Contracting World (Aldershot, 2005); Franz von Benda-Beckmann, Keebet
von Benda-Beckmann and Anne Griffiths (eds), The Power of Law in a Transnational World:
Anthropological Enquiries (New York, 2009); William Twining, General Jurisprudence:
by national and global movements of capital, land and labor relations, ideas
and values, images, and laws’.38 With scholars paying more attention to how
national and transnational law affects local processes, and the plural sources of
state law, there has been increasing recognition that legal pluralism is a feature
of all societies and social fields. While disagreement may remain over whether
to term non-state normative orders as legal, scholars, including some of legal
pluralism’s strongest critics, have acknowledged the reality of legal pluralism,
and its importance in drawing attention to the multiple normative orders that
can be found in any social field.39
Alternative Heuristic Frameworks
In Disputes and Settlements, Roberts mapped rule-centred and processual

paradigms, the leading approaches of the day. The rule-centred paradigm focuses
on the rules that govern and inform social life and behaviour, while the processual
concentrates on how people follow, use and sidestep those rules. Processual-type
research continued through the 1980s, albeit with an emphasis (as Roberts
urged) on placing cases within their ‘total social context’. Accordingly, research
frameworks evolved to incorporate history, power and legal pluralism.40
Rule-centred research was in decline at the time of Disputes and Settlements
and almost disappeared in the 1980s.41 In recent years, however, anthropologists
and (medieval) historians at the University of Oxford have reinvigorated
research into rules and laws, or, as they prefer to call it, legalism.42 The starting
Understanding Law from a Global Perspective (Cambridge, 2009); and Francis Snyder, The EU,
the WTO and China: Legal Pluralism and International Trade Regulation (Oxford, 2010).
38
See Sally Engle Merry, ‘Crossing Boundaries: Ethnography in the Twenty-First
Century’, Political and Legal Anthropology Review, 23/2 (2000): pp. 127–33 (p. 127).
39
In 2005, Roberts wrote ‘We can probably all now go along with some general
tenets of the legal pluralists.’ See Roberts, ‘After Government?’, p. 12; and in 2008 Tamanha
concluded, ‘Legal pluralism is everywhere. There is, in every social arena one examines, a
seeming multiplicity of legal orders.’ Brian Tamanaha, ‘Understanding Legal Pluralism: Past
to Present, Local to Global’, Sydney Law Review, 30/3 (2008), pp. 375–411 (p. 376).
40
See, for example, Keebet von Benda-Beckmann and Fernanda Pirie (eds), Order and
Disorder: Anthropological Perspectives (New York, 2007); and Franz von Benda-Beckmann,
Keebet von Benda-Beckmann, Martin Ramstedt and Bertram Turner (eds), Religion in
Disputes: Pervasiveness of Religious Normativity in Disputing Processes (New York, 2013).
41
For a good summary of rule-centred and processual research models in the 1980s, see
Just, ‘Review Essay’, pp. 373–6.
42
All are associated with the university’s Centre for Socio-Legal Studies. See Paul
Dresch and Hannah Skoda (eds), Legalism: Anthropology and History (Oxford, 2012); and
Fernanda Pirie, The Anthropology of Law (Oxford, 2013). They cite Lloyd Fallers as the
intellectual progenitor of legalism. See Lloyd Fallers, Law Without Precedent: Legal Ideas
in Action in the Courts of Colonial Busoga (Chicago, 1969). Another significant instance of
point for these scholars is what they consider an overemphasis on practice and
the processual approach. Such a methodology they argue ‘[isolates] “individuals”
from “society” … leaves one with morally hollow individuals … and makes the
sources of action very hard to grasp’.43 Rather, they want greater attention placed
on the rules, specifically rules
that are distinct from practice (rules that are ‘formulated’, in other words) and rules
characterized by the claim to be more than simply spontaneous improvisations,
but in some sense often systematic. Rules we might describe as legal are general
statements that often organize generalizing concepts (marriage, possession, debt,
for instance), or relate such concepts to each other. These rules need not even be
regulatory, and certainly need not be coercive.44
For example in looking at a (contested) debt case, adherents of legalism would

focus less on how the parties pursued the case, and instead on what it meant to
the parties to be a debtor or a creditor, and how rules and laws informed the
parties’ actions in the case, and conceptions of their respective roles as a debtor,
lender or guarantor. Through such an approach, legalism hopes to arrive at an
understanding of the rules that inform practice and behaviour, and to examine
the multiple roles and functions that rules and law play in society.
One way to incorporate rules (and laws) is to employ the concept of legal
culture. The term and concept originate in a 1969 article by the American
legal scholar Lawrence Friedman.45 He highlighted three specific dimensions.
‘First … the demands made upon legal institutions, calling for action of one
sort or another; second, the responses made by the legal institutions; third, the
impact and effect of these responses on the persons making the demands, and
on society as a whole.’ As Friedman wrote, ‘It is the legal culture, that is, the
network of values and attitudes relating to law, which determines when and why
and where people turn to law or government, or turn away.’46 It is an investigative
model that incorporates both the users (those who place demands on a legal
institution) and the structures (courts, division of powers), as well as substantive
features (codes, verdicts, rules) that are integral to a legal system. Studying legal
anthropologists and historians working together is the Centre d’histoire et d’anthropologie

du droit at the University of Paris.
43
Paul Dresch, ‘Legalism, Anthropology, and History: A View from Part of
Anthropology’, in Paul Dresch and Hannah Skoda (eds), Legalism: Anthropology and History
(Oxford, 2012), pp. 1–37 (p. 11, fn. 20).
44
Hannah Skoda, ‘A Historian’s Perspective on the Present Volume’, in Paul Dresch and
Hannah Skoda (eds), Legalism: Anthropology and History (Oxford, 2012), pp. 39–54 (p. 39).
45
Lawrence Friedman, ‘Legal Culture and Social Development’, Law & Society Review,
4/1 (1969): pp. 29–44.
46
Ibid., pp. 33–4.
culture permits the ethnographer to reconstruct and assess the place of, and the
dynamics among, the disputants, the judiciary and the law in a given society.
Stemming from legal sociology, rather than anthropology, the concept is, not
surprisingly, more attuned to the interplay between institutions and people.47
Scholarly interest in the linguistics of the law and legal practice accelerated
in the 1970s.48 It since has remained a significant subfield of socio-legal research.
Some of its findings are now well accepted as basic methodological premises.
One in particular is the shaping power of the law, a concept discussed by Roberts
in Disputes and Settlements: specifically, that how a case appears before a court
is not necessarily representative of how the original quarrel was experienced or
conceived by the participants. For a case to appear before a court, the disputants
must present it in a manner that the court will be prepared to hear (which
may differ from the quarrel’s original substance).49 Other aspects of linguistic
research look at judicial testimony and the stories that people tell in court.50
In more recent years, as in legal anthropology more generally, research has begun
to focus on power: how power operates in everyday legal settings, and ‘the
linguistic mechanisms through which power is realized, exercised, sometimes
abused, and occasionally subverted’.51
One of the most effective conceptual frameworks for investigating
legal and social change, and the sphere of normative pluralism, remains the
concept of the semi-autonomous social field, developed by Sally Falk Moore.
The social field is the small domain, rather than society as a whole, that is
47
For an anthropologist’s take on legal culture, see Sally Engle Merry, ‘What is
Legal Culture? An Anthropological Perspective’, Journal of Comparative Law, 5/2 (2010):
pp. 40–58.
48
Much of it, no doubt, sparked by Richard Rorty and the linguistic turn. See Richard
Rorty (ed.), The Linguistic Turn: Recent Essays in Philosophical Method (Chicago, 1967).
49
The original quotation is worth repeating here: ‘In any culture we must expect some
disparity between the form in which a dispute appears in court and the “real” substance of
the quarrel which gives rise to it. Even in the absence of specialization which characterizes the
courts of contemporary legal systems, there is likely to be some gap between the way in which
the parties conceive of their quarrel and the manner in which it is seen by interveners. The
disputants will probably know this and thus present the matter in such a way that the court
will be prepared to hear it.’ See Simon Roberts, ‘The Study of Dispute: Anthropological
Perspectives’, in Bossy (ed.), Disputes and Settlements, p. 22.
50
Well known to historians of course through the work of Natalie Zemon Davis.
See her Fiction in the Archives: Pardon Tales and Their Tellers in Sixteenth-Century France
(Stanford, 1987).
51
John Conley and William O’Barr, Just Words: Law, Language, and Power (Chicago,
1998), p. 14. Also generally, see their Rules Versus Relationships: The Ethnography of
Legal Discourse (Chicago, 1990); and for an important early review article, see Elizabeth
Mertz, ‘Review Essay: Language, Law, and Social Meanings: Linguistic/Anthropological
Contributions to the Study of Law’, Law & Society Review, 26 (1992): pp. 413–46.
observable by the anthropologist. Society consists of a plethora of social fields

that are constantly interacting, overlapping and interdependent in numerous
dimensions. Individuals inevitably belong to and operate in several social
fields simultaneously. A social field’s boundaries are defined by a processual
characteristic: the ability to ‘generate rules and coerce or induce compliance to
them’.52 Its composition, whether a corporate group or network of individuals,
is not relevant to its boundaries. This internal capacity to generate rules and
induce compliance is what gives a semi-autonomous social field its boundaries
and its relative autonomy. Moore casts it as semi-autonomous because, while ‘it
can generate rules and customs and symbols internally … it is also vulnerable to
rules and decisions and other forces emanating from the larger world by which
it is surrounded’.53 The larger social matrix can be a court, a governmental body
or simply a social field with greater hegemony.
Moore used two examples in her article, one of which was the garment
industry in New York City.54 Here the semi-autonomous social field is the
relationship between the contractor (in charge of a production workshop) and
the union business agent. The rules guiding this relationship are those of mutual
dependence. In times of high demand, where employees may work significant
overtime, the contractor needs the union business agent not to enforce the
terms of the contract strictly. In exchange, the union agent receives gifts and
favours from the contractor (in times of low demand, the workers’ jobs are
presumably protected, but Moore focuses less on this aspect). What on the
surface may appear as simple bribery is, as Moore aptly notes, a complex series
of internally generated rules and obligations that guide how one operates within
this field (failure to comply can lead to exclusion from this segment of the
garment industry).
Outside this semi-autonomous social field lurks labour law and the union
business agent’s ability to invoke it (indeed, the agent derives his power from
his ability to invoke these laws). As it is clearly not in his interest to invoke these
laws (provided the internal rules are being adhered to), the law rarely enters this
semi-autonomous social field, and instead it is the internally generated rules that
guide people’s actions.
As the above example indicates, Moore’s model is a potent and effective
paradigm for investigating legal and social change. It gives the anthropologist
(or the historian) the framework to investigate norm enforcement, rule-making
and compliance among the myriad small social groups that dominate everyday
Sally Falk Moore, ‘Law and Social Change: The Semi-Autonomous Social Field as an
52
Appropriate Subject of Study’, Law & Society Review, 7/4 (1973): pp. 719–46 (p. 722).
53
Ibid., p. 720.
54
The other dealt with the land holding and lineage practices of the Chagga in
Kilimanjaro.
life while simultaneously taking into account the larger, exogenous, hegemonic
forces (such as state law) that can directly or indirectly impact the social field
being studied.55
Where Are We Now?
When Disputes and Settlements was published in 1983, there was a widespread
understanding that disputes were the central theme of legal anthropology. Today,
there is no such thematic core. Ethnographers study many different aspects of
the legal. Nor is there a unified centre of research since the scope of fieldwork has
now extended to include Western and global dimensions. With the recognition
of history, power, legal pluralism and other research themes, there are many
subfields within legal anthropology. But as Martha Mundy and Tobias Kelly
point out, within these subsections ‘there is considerable room for dialogue with
other disciplines concerned with the same [geographic or thematic] areas’.56
Despite this diverse nature of contemporary research, some basic tenets
remain at the core of legal anthropology. In 2005, Moore described them:
[Legal] anthropologists are likely to ask in some specific setting about power,
control and justice: who makes the rules, who can undo them, how are they
normalized and enforced, and how are they morally justified. In addition, they
ask, what lies outside of the norm-governed domain and is open to individual or
group improvisation? How does this optional domain of behavior intersect with
the mandatory? How do people evade the norms and do they get away with it?57
Briefly stated, legal anthropology continues to investigate norms, rules and

laws; social order; and the manner in which people (or groups) navigate this
terrain. Following the development of the last 30 years, these studies account
55
Unlike Griffiths, Moore was clear that the normative orderings of the semi-
autonomous social field should not be termed or considered as legal. Instead, Moore prefers
the term ‘reglementation’ to describe these normative orders (an awkward term that has
not caught on among scholars), a point she reinforced in 2001. See Moore, ‘Certainties
Undone: Fifty Turbulent Years of Legal Anthropology, 1949–1999’, The Journal of the Royal
Anthropological Institute, 7/1 (2001): pp. 95–116 (pp. 106–7). Denis Galligan recently
proposed a similar model of ‘social spheres’. Oddly, he did not cite Moore. See his Law in
Modern Society (Oxford, 2007), pp. 103–120.
56
Mundy and Kelly, ‘Introduction’, p. xviii. For other good recent overviews of legal
anthropology, see Franz von Benda-Beckmann, ‘Riding or Killing the Centaur? Reflections
on the Identities of Legal Anthropology’, International Journal of Law in Context, 4/2
(2008): pp. 85–110; and Michael Freeman and David Napier (eds), Law and Anthropology
(Oxford, 2009).
57
Moore, ‘General Introduction’, p. 2.
for how history and power have shaped the sites of fieldwork and the multiple
sources of law operating in any social field.
From Bossy to Today: The Historian’s Perspective
Since the rise of the ‘new cultural history’ in the 1970s and 1980s, historians
have increasingly used legal sources, particularly court records, as windows into
social life. Carlo Ginzburg famously used the interrogation of a Friulian miller
in the sixteenth century to investigate lay and folk beliefs.58 Emmanuel Le Roy
Ladurie used documents of the Inquisition to recreate the life of a remote French
village.59 Gene Brucker used the dossiers of a Florentine notary to examine a tale of
courtship gone awry.60 Why? Court records are one of the best – and, at times, the
only – sources to access the world, thoughts and even words of non-elites.61
As pioneering as these studies were, one would be hard pressed to classify
them as employing a legal anthropologic perspective, since none are primarily
concerned with interaction between the legal and social domains or processes of
establishing order. Instead, to investigate the legacy of Disputes and Settlements,
we must look more to studies where laws, courts and order function as
protagonists rather than as supporting actors.
Here we find a field rich with significant scholarship that has examined
disputes and other socio-legal issues.62 As with early legal anthropology, many
58
Carlo Ginzburg, The Cheese and the Worms: The Cosmos of a Sixteenth-Century
Miller, trans. John and Anne Tedeschi (Baltimore, 1980).
59
Emmanuel Le Roy Ladurie, Montaillou: The Promised Land of Error, trans. Barbara
Bray (New York, 1978).
60
Gene Brucker, Giovanni and Lusanna: Love and Marriage in Renaissance Florence
(Berkeley, 1986).
61
Although, as Thomas Kuehn reminds us in a trenchant critique of Brucker, legal texts
are not transparent windows into the past, but highly stylized texts. See Thomas Kuehn,
‘Reading Microhistory: The Example of Giovanni and Lusanna’, The Journal of Modern
History, 61/3 (1989): pp. 512–34.
62
Some noteworthy pieces include: Wendy Davies and Paul Fouracre (eds), The
Settlement of Disputes in Early Medieval Europe (Cambridge, 1986); Guido Ruggiero,
Boundaries of Eros: Sex Crime and Sexuality in Renaissance Venice (Oxford, 1985); James
R. Farr, Hands of Honor: Artisans and Their World in Dijon, 1550–1650 (Ithaca, 1988),
pp. 150–95; William Ian Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in
Saga Iceland (Chicago, 1990); Thomas Kuehn, Law, Family, and Women: Toward a Legal
Anthropology of Renaissance Italy (Chicago, 1991), pp. 75–100; Thomas V. Cohen, ‘A Long
Day in Monterotondo: The Politics of Jeopardy in a Village Rising (1558)’, Comparative
Studies in Society and History, 13/4 (1991): pp. 639–68; Edward Muir, Mad Blood Stirring:
Vendetta and Factions in Friuli during the Renaissance (Baltimore, 1993); Daniel Lord Smail,
‘Hatred as a Social Institution in Late Medieval Society’, Speculum, 76/1 (2001): pp. 90–126;
of these studies placed social order at the centre, and tried to find its breaking
points: what kind of behaviour could one get away with, and what not? Given
historians’ use of court records, much of this work has been quite adept at
situating disputes within their ‘total social context’.63 This includes an extensive,
and perhaps excessive, attention to honour, and the role it played in sparking and
channelling conflict.
Contributing to historians’ research on these topics has been the practice
theory of Pierre Bourdieu and the processual approach described by Roberts
and Comaroff.64 Inherent in both is the idea, as Chris Wickham writes, ‘that
legal rules themselves can be negotiated as part of disputing strategies’.65 As
such, these studies have put the questions of why people went to court, or, more
generally, how people processed conflicts, specifically the moves and tactics of
disputants, at the centre of their investigations. For example, Daniel Lord Smail
portrayed people in late medieval Marseille not just as users, but as ‘consumers’
of services offered by courts.66 Elizabeth Cohen looked at how early modern
Romans responded to slights to their honour, particularly through the practice
Chris Wickham, Courts and Conflict in Twelfth-Century Tuscany (Oxford, 2003); Susanne
Pohl-Zucker, ‘Uneasy Peace: The Practice of the Stallung Ritual in Zürich, 1400–1525’,
Journal of Early Modern History, 7/1 (2003): pp. 28–54; Susan Reynolds, ‘The Emergence
of Professional Law in the Long Twelfth Century’, Law and History Review, 21/2 (2003):
pp. 347–66; Stuart Carroll, ‘The Peace in the Feud in Sixteenth- and Seventeenth-Century
France’, Past and Present, 178 (2003): pp. 74–115; and Bernard Capp, ‘Life, Love and
Litigation: Sileby in the 1630s’, Past and Present, 182 (2004): pp. 55–83.
63
For example, see Thomas V. Cohen, Love and Death in Renaissance Italy (Chicago,
2004).
64
See Pierre Bourdieu, Outline of a Theory of Practice, trans. Richard Nice (Cambridge,
1977); Thomas V. Cohen, ‘Bourdieu in Bed: The Seduction of Innocentia (Rome, 1570)’,
Journal of Early Modern History, 7/1 (2003): pp. 55–85. For the processual approach, see
Robert Shoemaker, The London Mob: Violence and Disorder in Eighteenth-Century England
(London, 2007); and Drew D. Gray, Crime, Prosecution and Social Relations: The Summary
Courts of the City of London in the Late Eighteenth Century (Basingstoke, 2009).
65
Wickham, Courts and Conflict, p. 5.
66
Daniel Lord Smail, The Consumption of Justice: Emotions, Publicity and Legal Culture
in Marseille, 1264–1423 (Ithaca, 2003). In his work on the Low Countries, Maarten van
Dijck also stressed the financial dynamics of using court institutions in assessing both the
socio-economic profile of court users, and their reasons for going to court. See his ‘Towards
an Economic Interpretation of Justice? Conflict Settlement, Social Control and Civil
Society in Urban Brabant and Mechelen During the Late Middle Ages and Early Modern
Period’, in Manon van der Heijden, Elise van Nederveen Meerkerk, Griet Vermeesch and
Martijn van der Burg (eds), Serving the Urban Community: The Rise of Public Facilities in the
Low Countries (Amsterdam, 2009), pp. 62–88.
of ‘house scorning’.67 Scott Taylor studied the often violent reactions of sixteenth-
century Castilians to being reminded of outstanding debts.68
A salient factor to historians taking this approach is the large number of
medieval and early modern legal cases that abruptly break off without a court
verdict, or at least without a recorded one. Many historians interpret this to
mean that launching a suit was a bargaining gambit, a tactic designed to pressure
an adversary to accept an extralegal settlement rather than face a potentially
more punitive court sanction.69 In arriving at such an interpretation, historians
have placed great emphasis on the role (they can only presume was) played by
the extralegal realm – a realm for which sources rarely survive.70
What of rules and laws in studies of dispute resolution? For many historians
working in this realm, rules and laws are not often at the forefront of their
studies, partly because it is unusual to find reference to rules in court records.
For example, in the legal verdicts of cases of theft, illicit sex and other crimes
in the Saxon city of Freiberg, rare is a reference to any specific legal stipulation.
Instead, the records summarize the perpetrators’ offence and punishment, but
only seldom note which legal ordinance had been violated.71 Further, early
modern legal codes were complex, contradictory and cluttered. Many codes
could operate simultaneously, each with differing stipulations.72 Finding the
67
Elizabeth S. Cohen, ‘Honor and Gender in the Streets of Early Modern Rome’,
Journal of Interdisciplinary History, 22/4 (1992): pp. 597–625.
68
Scott Taylor, ‘Credit, Debt, and Honor in Castile, 1600–1650’, Journal of Early
Modern History, 7/1 (2003): pp. 8–27. Within this volume, see the contributions from
Christian Schneider, Christian Kühner and Gabriella Erdélyi.
69
Within German historiography, Martin Dinges is the most well-known advocate.
See ‘Justiznutzungen als soziale Kontrolle in der Frühen Neuzeit’, in Andreas Blauert and
Gerd Schwerhoff (eds), Kriminalitätsgeschichte: Beiträge zur Sozial- und Kulturgeschichte
der Vormoderne (Constance, 2000), pp. 503–544. For an English condensation, see Martin
Dinges, ‘The Uses of Justice as a Form of Social Control in Early Modern Europe’, in Herman
Roodenburg and Pieter Spierenburg (eds), Social Control in Europe, Vol. 1 (1500–1800)
(Columbus, 2004), pp. 159–75.
70
The extralegal realm bears a similarity to Benoît Garnot’s concept of the infrajudicial.
See Benoît Garnot (ed.), L’Infrajudiciaire du Moyen Age à l’époque contemporaine (Dijon, 1996).
On extralegal settlements, see Carl A. Hoffman, ‘Außergerichtliche Einigungen bei Straftaten
als vertikale und horizontale soziale Kontrolle im 16. Jahrhundert’, in Blauert and Schwerhoff,
Kriminalitätsgeschichte, pp. 563–79; and Gerd Sälter, ‘Lokale Ordnung und soziale Kontrolle
in der frühen Neuzeit: Zur außergerichtlichen Konfliktregulierung in einem kultur- und
sozialhistorischen Kontext’, Kriminologisches Journal, 32 (2000): pp. 19–42.
71
See for example, Sächsisches Hauptstaatsarchiv Dresden (hereafter SHStA Dresden),
13749, Urfriede- und Zetergeschreibuch (1539–1558), Nr. 421; and SHStA Dresden,
13749, Urfriede- und Zetergeschreibuch (1559–1578), Nr. 420.
72
See Wickham, Courts, pp. 3–4; and Lyndal Roper, The Holy Household: Women and
Morals in Reformation Augsburg (Oxford, 1989), p. 62.
social, or even legal, rules without being able to observe disputants in action is a
Herculean task.
The inattention to rules and laws has its critics. As Paul Dresch and others
note in their advocacy of legalism, historians preoccupied with process risk
overlooking important factors that inform (at least partially) how people
behaved. For example, Freiberg’s municipal legal code permitted contractual
settlements in assault cases.73 Without significant sanctions to deter them,
Freibergers’ readiness to resort to violence appears in a new light. Others have
pointed out that approaching the law or courts as a bargaining gambit overlooks
the hegemonic power of the law. For even if a law is not commonly applied,
its legal status still grants it power, even if only latent. Some historians argue
this was a feature of eighteenth-century England, where the offences subject
to capital punishment steadily rose but actual executions did not.74 Changing
laws and legal practice could also create new structures and rules for people to
operate within. People who misread these new rules, such as Giovanna Fiume’s
old vinegar lady, could end up paying a terrible price.75 By prescinding from rules
and laws, historians risk overlooking a fundamental dimension.
Here I would disagree with Dresch, who contends ‘[h]istorians’ enthusiasm
for “the processual approach” seems boundless’.76 Laws have not been entirely
ignored; legal historians have unquestionably done significant work on legal
codes.77 Yet these studies frequently overlook actual cases and the people
involved in them. The larger problem is that there is rarely enough exchange and
engagement between legally and processually minded historians. To properly
73
See section 14.1 of the Freiberg Stadtrecht in Hubert Ermisch (ed.), Urkundenbuch
der Stadt Freiberg in Sachsen, vol. 3 (Leipzig, 1891), pp. 63–4.
74
See Douglas Hay et al., Albion’s Fatal Tree: Crime and Society in Eighteenth-Century
England (New York, 1975). Hay’s contention that this was due to a ‘class conspiracy’ has
been challenged. See John Langbein, ‘Albion’s Fatal Flaws’, Past and Present, 98 (1983):
pp. 96–120.
75
Giovanna Fiume, ‘The Old Vinegar Lady, or the Judicial Modernization of the
Crime of Witchcraft’, in Edward Muir and Guido Ruggiero (eds), History from Crime, trans.
Margareta Gallucci (Baltimore, 1994), pp. 65–87.
76
Dresch, ‘Legalism’, p. 6, fn. 9.
77
Some examples include John Langbein, Prosecuting Crime in the Renaissance:
England, Germany, France (Cambridge, 1974); Alan Watson, Legal Transplants: An
Approach to Comparative Law (Charlottesville, 1974); Harold Berman, Law and Revolution:
The Formation of the Western Legal Tradition (Cambridge, MA, 1983); John Witte, Law
and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge, 2002);
Karl Härter, Policey und Strafjustiz in Kurmainz: Gesetzgebung, Normdurchsetzung und
Sozialkontrolle im frühneuzeitlichen Territorialstaat, 2 vols (Frankfurt, 2005); and Harold
Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western
Legal Tradition (Cambridge, MA, 2006).
reconstruct what transpired, that divide needs to be bridged, and research has to
include both rules and processes – which the best of it does.78
Besides rules and processes, historians have become very skilled in parsing
court testimony, particularly the tales told in court, and how litigants sought to
put the best face on their case by focusing on supportive factors and suppressing
detrimental ones.79 Historians have also looked at the lies people told in court.
As Edward Muir and Guido Ruggiero provocatively wrote:
It could well be argued that every judicial document in a case is a tissue of lies:
defendants reconstructing their past to make it seem as innocent as possible;
accusers recasting events to make the accused seem as guilty as possible;
investigators working to fit individuals and events into preconceived notions of
crime; witnesses shaping their testimony because of animosities, friendships, the
desire to please the powerful, or the need to thwart them.80
While lies complicate matters for the historian, they can be a potent source
revealing contemporary understandings of popular and judicial reasoning, and
what people thought judges could be induced to believe.
The concept of legal culture has had more limited reception by historians,
but when employed (whether directly citing Friedman or not), studies have
been quite successful, especially in shedding light on the development of the
nascent state. Esther Cohen took such an approach to late medieval France.81
Leslie Peirce used the concept to illuminate the Ottoman court of Aintab in the
sixteenth century.82 To a lesser extent, Smail used it in his work on late medieval
78
For an exemplar of balanced consideration of both rules and processes, see James
R. Farr’s work on the crime of rapt in his Authority and Sexuality in Early Modern Burgundy,
1550–1730 (Oxford, 1995), pp. 90–123.
79
The classic remains Davis, Fiction. Conley and O’Barr acknowledge and discuss
Davis’s work; see Just Words, pp. 116–28. Another exemplar is Laura Gowing, Domestic
Dangers: Women, Words, and Sex in Early Modern London (Oxford, 1996). More recently,
see Laura Kounine, ‘The Gendering of Witchcraft: Defence Strategies of Men and Women
in German Witchcraft Trials’, German History, 31/3 (2013): pp. 295–317.
80
Edward Muir and Guido Ruggiero, ‘Afterword: Crime and the Writing of History’,
in Edward Muir and Guido Ruggiero (eds), History from Crime, trans. Margareta Gallucci
(Baltimore, 1994), pp. 226–36 (p. 230).
81
Esther Cohen, The Crossroads of Justice: Law and Culture in Late Medieval France
(Leiden, 1993).
82
Peirce described her approach: ‘While the book takes an interest in the Ottoman legal
system as a whole and in the laws that it enforced, it is primarily an attempt to understand
the culture of a local court: that is, the nature of dispute resolution that occurred within
it and its vision of social justice. Legal codes – Islamic sharia and Ottoman imperial law –
were of course critical in shaping the legal life of communities like Aintab, but it was only in
Marseilles.83 Griet Vermeesch employed it indirectly in her work on access to

justice in eighteenth-century Leiden, Antwerp and Brussels.84 In a review article,
Harriet Rudolph presented legal culture as a heuristic that allows historians
to obtain novel and deeper insights into the entire legal system, including its
functions and uses.85
In my own work on sixteenth-century Freiberg, I have used legal culture to
try to paint a more holistic picture of the interactions between the city court
and town residents. For instance, in any given year in the sixteenth century,
approximately 200 to 250 loans, often of trifling sums, were registered with
the city court, the great majority of which were never recorded as having been
repaid. Despite this lack of noted repayment, there is no (surviving) indication
that lenders pursued recalcitrant debtors via the city court, or that the city court
(which provided detailed repayment schedules as part of the registration) took
action itself. Using the concept of legal culture, we can see that the city court was
largely a record-keeper: it notarized the loans of residents, but provided little
else. From their continued registration of loans, it was a function that appears to
have sufficed for Freiberg’s residents.86
While legal anthropology has influenced (directly or indirectly) many
historians, others have ignored it, and turned instead to sociology.87 The
sociological concept of social control has a sizeable following, especially within
German historiography; one can hardly name a German study of crime that
does not employ it.88 Definitions vary, but the central idea is to investigate
local interpretation that formal rules acquired vitality and meaning.’ Morality Tales: Law and
Gender in the Ottoman Court of Aintab (Berkeley, 2003), p. 1.
83
Smail, Consumption.
84
Griet Vermeesch, ‘Access to Justice: Legal Aid to the Poor at Civil Law Courts in the
Eighteenth-Century Low Countries’, Law and History Review, 32/3 (2014): pp. 683–714.
85
Harriet Rudolph, ‘Rechtskultur in der frühen Neuzeit: Perspektiven und
Erkenntnispotentiale eines modischen Begriffs’, Historische Zeitschrift, 278 (2004): pp. 347–74.
86
John Jordan, ‘Legal Culture in a Turbulent Time: Law and Society in Early Modern
Saxony’ (PhD diss., University of Oxford, 2013), pp. 140–89.
87
Geography is probably a determining factor. Legal anthropology has a much stronger
base in American (and to a lesser extent British) universities. In countries such as Germany,
it has only a minor foothold. Some signs point to this changing; see the research group on
legal pluralism at the Max Planck Institute for Social Anthropology in Halle. For a general
overview of how (legal) anthropology has developed with different national trajectories, see
Fredrik Barth, Robert Parkin, Andre Gingrich and Sydel Silverman, One Discipline, Four
Ways: British, German, French, and American Anthropology (Chicago, 2005); and Benda-
Beckmann, ‘Riding’.
88
The key initiator in German historiography was Gerd Schwerhoff, Köln im
Kreuzverhör: Kriminalität, Herrschaft und Gesellschaft in einer frühneuzeitlichen Stadt (Bonn,
1991). He has been followed by many; see Ulrich Henselmeyer, Ratsherren und andere
Delinquenten: Die Rechtsprechungspraxis bei geringfügigen Delikten im spätmittelalterlichen
how society reacts to behaviour it considers deviant.89 The core concept is what
its practitioners call the labelling approach: that is, behaviour only becomes
deviant when society labels it as such and takes clear steps against it.90 Like legal
anthropology, it is an investigatory model that seeks to draw the historian’s gaze
beyond legal institutions and into social life.
From my perspective, the application of the concept of social control to
medieval and early modern history possesses three major shortcomings. First, it
is rarely clear whose notion of deviance is being used. Most historians indicate
they focus on how contemporaries or society reacted to deviant behaviour.
This approach simplistically presupposes that conceptions of deviance were
homogeneous across society, or that a univocal concept of deviance existed –
or else it simply ratifies the concept imposed by those in power.91 Second, as
Marilyn Strathern showed many years ago, in any quarrel there is significantly
more going on than just the application of the label of deviance. Between the
involved parties (and their social networks), there is a larger field of exchanges
and transactions that are of equal, if not greater, importance in understanding
the dynamics.92 Third, the empirical basis for theories of social control have come
from sociologists working on twentieth-century communal outsiders, such as
juvenile delinquents, thieves and other marginal figures.93 As Dresch notes, ‘The
Nürnberg (Constance, 2002); Lars Behrisch, Städtische Obrigkeit und soziale Kontrolle:
Görlitz 1450–1600 (Epfendorf am Neckar, 2005); Härter, Policey; Ulrike Ludwig, Das Herz
der Justitia: Gestaltungspotentiale territorialer Herrschaft in der Strafrechts- und Gnadenpraxis
am Beispiel Kursachsens 1548–1648 (Constance, 2008); and Alexander Kästner, Tödliche
Geschichte(n): Selbsttötungen in Kursachsen im Spannungsfeld von Normen und Praktiken
(1547–1815) (Constance, 2012). Although at times critical of Schwerhoff, Pieter
Spierenburg has been a leading proponent. See Herman Roodenburg and Pieter Spierenburg
(eds), Social Control in Europe, Vol. 1 (1500–1800) (Columbus, 2004) and Clive Emsley,
Eric Johnson and Pieter Spierenburg (eds), Social Control in Europe, Vol. 2 (1800–2000)
(Columbus, 2004).
89
Many use Stanley Cohen’s definition: ‘the organized ways in which society responds
to behaviour and people that it regards as deviant, problematic, worrying, threatening,
troublesome or undesirable in some way or another’. Stanley Cohen, Visions of Social Control
(Cambridge, 1985), p. 1.
90
Schwerhoff, Köln, pp. 26–7.
91
These problems are not unknown to its adherents. See Pieter Spierenburg, ‘Social
Control and History: An Introduction’, in Herman Roodenburg and Pieter Spierenburg
(eds), Social Control in Europe, Vol. 1 (1500–1800) (Columbus, 2004), pp. 1–24 (p. 7).
92
Marilyn Strathern, ‘Discovering “Social Control”’, Journal of Law and Society, 12/2
(1985): pp. 111–34.
93
See for instance the contributions to Stanley Cohen (ed.), Images of Deviance
(Harmondsworth, 1971), which considers soccer hooligans, drug users and thieves. Drug
users were also one of the subjects of Howard Becker’s work. See his Outsiders: Studies in the
Sociology of Deviance (New York, 1963).
asocial individual as the subject of law is of recent provenance … The danger of

history or anthropology simply reproducing modern ideology is plain.’94
Where Do We Go Now?
Having looked at how legal anthropology and its adoption by medieval and early
modern historians have developed in the three decades since the publication of
Disputes and Settlements, how do we go forward? How can historians continue to
use and profit from legal anthropology? Unlike the situation 30 years ago, with
its focus on disputes, there is no longer a thematic centre to legal anthropology.
Similarly, one would be hard pressed to identify a distinct core of current
historical research. Methodologies and thematic interests are extraordinarily
diverse. At this point, the extent to which history and anthropology can
profitably engage depends significantly on what their practitioners are interested
in, and what type of empirical questions they pose.
Employing a legal anthropological methodology can help historians consider
their sources in a more holistic light. As Moore has argued, this means looking
not only into judicial institutions, but also at their larger social surroundings,
and raising questions about power, rules, improvisation, order, norms and
how people proceeded within these (semi-autonomous) social fields. Further,
Friedman’s concept of legal culture remains a powerful heuristic for investigating
socio-legal change. Continued engagement with both frameworks would serve
historians well.
Thematically, I see five specific areas where historians can continue to
profit from legal anthropology. First, violence and conflict. For both historians
and anthropologists, violence and conflict have been topics of much recent
investigation. For historians, much of this work has been stimulated by Norbert
Elias and his theory of a ‘civilizing process’.95 There has been illuminating work
on the cultures of violence and how they have changed over the last half-
millennium, including the evidence that incidents of interpersonal violence
have decreased significantly in western Europe.96 Not surprisingly, much of the
94
Dresch, ‘Legalism’, p. 10, fn. 17.
95
Norbert Elias, The Civilizing Process: The History of Manners (Oxford, 1978);
Norbert Elias, The Civilizing Process: State Formation and Civilization (Oxford, 1978).
96
On the anthropological side, see Göran Aijmer and Jon Abbink, Meanings of
Violence: A Cross Cultural Perspective (Oxford, 2000); Bettina Schmidt and Ingo Schröder,
Anthropology of Violence and Conflict (London, 2001); Pamela Stewart and Andrew
Strathern, Violence: Theory and Ethnography (New York, 2002); Steven Pinker, The Better
Angels of Our Nature (New York, 2011). For historical work, a useful synthesis is Julius
Ruff, Violence in Early Modern Europe (Cambridge, 2001). The journal Crime, Histoire
et Sociétés has been the centre of many debates. See Pieter Spierenburg, ‘Violence and the
research on both sides is interdisciplinary (involving more fields than history

and anthropology), and this shows no signs of abating.97
Second, a more global perspective. In the turn to global perspectives,
historians have focused upon consumption, economics, trade, fashion and
material culture; socio-legal history in the medieval and early modern periods has
lagged behind.98 Some recent work, such as the contributions to the Dresch and
Skoda volume on legalism and the pioneering work of Lauren Benton and others
on legal pluralism in colonies and empires, points to this changing.99 Employing
a global perspective would help to reveal and contextualize convergence and
divergence between legal practices and developments in European and other
(Asian, African, American etc.) societies.
Third, while historians have begun to employ legal pluralism to study
colonial and imperial legal orders, less work has been done within the imperial
heartlands themselves. Nor has normative pluralism been the subject of much
Civilizing Process: Does it Work?’, Crime, Histoire et Sociétés, 5/2 (2001): pp. 87–105; Gerd
Schwerhoff, ‘Criminalized Violence and the Process of Civilisation: A Reappraisal’, Crime,
Histoire et Sociétés, 6/2 (2002): pp. 103–126; and Pieter Spierenburg, ‘Theorizing in Jurassic
Park: A Reply to Gerd Schwerhoff ’, Crime, Histoire et Sociétés, 6/2 (2002): pp. 127–8; as
well as Richard McMahon, Joachim Eibach and Randolph Roth, ‘Making Sense of Violence?
Reflections on the History of Interpersonal Violence in Europe’, Crime, Histoire et Sociétés,
17/2 (2013): pp. 5–26. See also Stuart Carroll (ed.), Cultures of Violence: Interpersonal
Violence in Historical Perspective (New York, 2007); Pieter Spierenburg, A History of Murder:
Personal Violence in Europe from the Middle Ages to the Present (Cambridge, 2008); Robert
Muchembled, A History of Violence: From the End of the Middle Ages to the Present, trans.
Jean Birrell (Cambridge, 2012); and Hannah Skoda, Medieval Violence: Physical Brutality in
Northern France, 1270–1330 (Oxford, 2013).
97
See also the discussions by Laura Kounine and Stephen Cummins in the Introduction,
and Stuart Carroll in the Afterword to this volume.
98
See Kenneth Pomeranz, The Great Divergence: China, Europe, and the Making of
the Modern World Economy (Princeton, 2000); Maxine Berg, ‘In Pursuit of Luxury: Global
History and British Consumer Goods in the Eighteenth Century’, Past and Present, 182 (2004):
pp. 85–142; Giorgio Riello and Tirthankar Roy (eds), How India Clothed the World: The
World of South Asian Textiles, 1500–1850 (Leiden, 2009); Giorgio Riello and Prasannan
Parthasarathi (eds), The Spinning World: A Global History of Cotton Textiles, 1200–1850
(Oxford, 2009); Paula Findlen (ed.), Early Modern Things (New York, 2012); Peter Clark (ed.),
The Oxford Handbook of Cities in World History (Oxford, 2013); Geoffrey Parker, Global Crisis:
War, Climate Change and Catastrophe in the Seventeenth Century (New Haven, 2013).
99
See Dresch and Skoda, Legalism; Lauren Benton, Law and Colonial Cultures: Legal
Regimes in World History, 1400–1900 (Cambridge, 2002); and Lauren Benton and Richard
Ross (eds), Legal Pluralism and Empires, 1500–1850 (New York, 2013). See also the research
project, ‘Mediterranean Reconfigurations: Intercultural trade, commercial litigation, and legal
pluralism (15th-19th centuries)’ under the direction of Wolfgang Kaiser at the University of
Paris. Tara Alberts’ contribution in this volume is another step in this direction.
research. A quick glance at medieval and early modern Europe, however, reveals
a society rife with legal pluralism. Even if a historian focuses only on state legal
pluralism, there was a plethora of imperial or princely, district or county, city or
town, as well as church and guild, courts and codes in operation simultaneously.
Further, in Germanic regions, university law faculties were typically responsible
for issuing legal verdicts. Yet it is rare for scholars to investigate how multiple
courts or legal institutions functioned in the same jurisdiction. No doubt this is
partially a function of the nature of extant sources, as well as the sheer volume
of sources that such studies would require. But they would do much to enhance
our understandings of the role of the state, governance and law in daily life:
where the state came into people’s lives, and when, and with which institutions
people sought to involve the nascent state in their lives.
In parallel, historians could employ Keebet von Benda-Beckmann’s concept
of forum shopping to develop a more nuanced understanding of how people
used the different judicial options available to them.100 In another influential
article, Benda-Beckmann taught us not to blithely assume that all court verdicts
were carried out and implemented.101 Obviously such historical research is
contingent upon the requisite source material, but when the sources exist, they
will deepen our understandings of the judiciary as well as the litigants, and the
societal context. Scholars of early modern Germany have noted that not every
fine was paid nor every sentence executed and have characterized this as a culture
of flexible implementation of penalties.102
Fourth, shifting the focus from urban to rural regions. The vast majority
of research (including most of the pieces cited in this chapter) has been done
on urban areas; studies on rural areas are far fewer.103 Yet in medieval and early
modern Europe, the vast majority of people lived in rural rather than urban
areas. As late as 1800, only 17.0 per cent of Mediterraneans and 21.3 per cent of
western Europeans lived in towns with populations of at least 5,000. For northern
100
Benda-Beckmann holds that disputants search for (shop) for the forum (whether
a court or some other institution) that is most advantageous for their case. See Keebet
von Benda-Beckmann, ‘Forum Shopping and Shopping Forums: Dispute Processing in
a Minangkabau Village in West Sumatra’, Journal of Legal Pluralism and Unofficial Law,
19 (1981): pp. 117–59. See also Marc Galanter, ‘Justice in Many Rooms: Courts, Private
Ordering, and Indigenous Law’, The Journal of Legal Pluralism and Unofficial Law, 19
(1981): pp. 1–47.
101
Keebet von Benda-Beckmann, ‘The Social Significance of Minangkabau State Court
Decisions’, The Journal of Legal Pluralism and Unofficial Law, 23 (1985): pp. 1–68.
102
Susanna Burghartz, Leib, Ehre und Gut: Delinquenz in Zürich Ende des 14.
Jahrhunderts (Zurich, 1990), pp. 88–90; Schwerhoff, Köln, p. 127; and Peter Schuster, Eine
Stadt vor Gericht: Recht und Alltag im spätmittelalterlichen Konstanz (Paderborn, 2000),
pp. 160–61, 211.
103
For example, Ludwig, Herz.
and eastern Europe, those figures drop to 8.1 and 5.5 per cent respectively.104
Owing to their often complex legal jurisdictions (where legal orders were not
just plural but commonly overlapping), rural areas pose definite methodological
challenges. But research into these areas would give us a more complete picture
of law and society, and legal pluralism, in early modern Europe.105
Fifth, renewed attention to legalism. As Dresch and others have noted,
historians have devoted considerable research to the processual side, which has
been beneficial in helping us find and tell the stories of non-elites.106 But, as
Dresch and other adherents of legalism argue, developing a more balanced and
integrated picture means finding and elucidating the rules in play, as opaque
and hard to find as they may be. Through such an approach, we could develop
a deeper understanding of the multiple normative orders, state and non-state
alike, that shaped daily life and influenced people’s behaviour.
These themes – attention to rules, behaviour, legalism, legal pluralism, power,
and setting and context – reflect many of the changes to legal anthropology in the
last 30 years. In many instances, historians have already started to integrate them
into their work. But more work remains to be done. Continued engagement
with the methodology and theory of legal anthropology would continue to
serve historians well, and produce valuable avenues of new research.
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104
See Peter Clark, European Cities and Towns, 400–2000 (Oxford, 2009), p. 128.
105
For example, in the Saxon district (Amt) of Delitzsch, there was 1 city (Delitzch),
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Chapter 2
At the Crossroads of Feud and Law:
Settling Disputes in Early Modern Tuscany
Marco Cavarzere
Disputes and Settlements from an Italian Perspective
When 30 years ago John Bossy edited a now famous collection of essays about
disputes and settlements, similar topics were the subject of lively debate among
Italian scholars.1 As the essays published in Bossy’s volume bore witness to a
multitude of different scholarly traditions, from anthropology to the history of
crime and society, the perspectives of Italian historians on disputes also varied
greatly according to the different approaches used in order to interpret social
conflicts. Yet a common trait was shared by the Italian historiography of this
time: rather than on disputes per se, the focus here was on the state and on
its capacity for regulating litigation and imposing social order. The historical
problem posed principally concerned what meaning should be attributed to the
idea of early modern sovereignty.
Understandably, in Machiavelli’s country the prince was still at the centre of
cultural debate. However, this time, it was not a prince’s political strategies that
were placed under scrutiny, but his institutional role in the structure of the state.
A double consciousness developed: on the one hand, historians were trying to
understand how rulers managed to handle violence and social disorder through
extraordinary measures and juridical tools; on the other hand, they started to
take into account the complex relationships that existed between the centre and
peripheries of states in the fragmented Italian situation.
Bossy’s volume offered a large amount of material for reflection upon both of
these mutually entwined perspectives. The different case studies which the book
dedicated to the analysis of litigation and of the arbitration of disputes in various
parts of Europe seemed extremely sympathetic to those historians who were
examining the way in which violence and social confrontations were controlled
1
(Cambridge, 1983).
and channelled in early modern Italy.2 The insights these essays were able to
provide primarily derived from their ability to reconcile the institutions with
the de facto powers operating in the territory (nobility, factions and so on) and
to compare a ‘living law’ and a ‘written law’ in a given context. This was the same
path that had been paved by some historians of legal institutions and law in Italy,
who were focusing their research on specific areas, such as the Republic of Venice,
and on the conceptualization of a new social history of law.3 In their historical
analysis, criminal cases, which in one view embodied the highest representation
of state power, were fundamental for understanding both the functioning of
institutions and the concrete relationships between jurisprudence and the rites
of justice in the early modern period.
This innovative history of the criminal courts developed a strong dialogue
with the group of historians gathered around the so-called ‘micro-historical’
project.4 Their analysis started from a heuristic position very distant from the
inevitably top-down investigations carried out by those who attempted to
examine power structures through the action of jurists and magistrates. One
could say, making a clear oversimplification, that micro-historians reading
Bossy’s book would instead be captivated by the anthropological framework
offered by Simon Roberts at the start of the volume.5 Within this framework
Roberts underlined the importance of a transitional–processual approach
towards the analysis of disputes, an approach which aimed to go beyond the too
2
In particular, see Jenny Wormald, ‘The Blood Feud in Early Modern Scotland’
(pp. 101–44), Richard L. Kagan, ‘A Golden Age of Litigation: Castile, 1500–1700’
(pp. 145–66), James A. Sharpe, ‘“Such Disagreement betwyx Neighbours”: Litigation
and Human Relations in Early Modern England’ (pp. 167–87), James Casey, ‘Household
Disputes and the Law in Early Modern Andalusia’ (pp. 189–217), Nicole Castan, ‘The
Arbitration of Disputes under the Ancien Régime’ (pp. 219–60) in John Bossy (ed.), Disputes
and Settlements: Law and Human Relations in the West (Cambridge, 1983).
3
On the Republic of Venice see among his many works on the subject Gaetano
Cozzi, Repubblica di Venezia e stati italiani: politica e giustizia dal secolo XVI al secolo XVIII
(Turin, 1982); for the proposal of a social history of law see the fundamental works by Mario
Sbriccoli, now gathered in a posthumous collection: Mario Sbriccoli, Storia del diritto penale
e della giustizia: scritti editi e inediti (1972–2007) (Milan, 2009).
4
See the important scholarly exchange between Edoardo Grendi and Mario Sbriccoli
on the value of law and litigation in the historical interpretation of early modern society:
Mario Sbriccoli, ‘Fonti giudiziarie e fonti giuridiche: riflessioni sulla fase attuale degli studi
di storia del crimine e della giustizia criminale’, Studi storici, 29 (1988): pp. 491–501, and
Edoardo Grendi, ‘Sulla “storia criminale”: risposta a Mario Sbriccoli’, Quaderni storici, 73
(1990): pp. 269–75.
5
Simon Roberts, ‘The Study of Dispute: Anthropological Perspectives’, in John
Bossy (ed.), Disputes and Settlements: Law and Human Relations in the West (Cambridge,
1983), pp. 1–24. On the significance of this volume in the field of legal anthropology see the
contribution by John Jordan in this volume.
At the Crossroads of Feud and Law: Settling Disputes in Early Modern Tuscany 53
narrow perspective of the functionalist–institutional view. Such a rejection of the

‘rule-centred’ tradition primarily aimed to re-orientate scholarly investigation in
order to uncover the agency of different social actors.
As can easily be understood, this proposal found an eager reception among
the Italian micro-historians. In fact, they explicitly refused any teleological
interpretation that would assume the historical necessity of political and
administrative centralization and considered conflict the most ‘normal’ practice
in early modern political confrontations.6 According to the micro-historians,
the analytic gaze had to radically change: it was not institutions but networks
of relationships within social groups that should be studied. Thanks to this
microscopic analysis of the social and economic bounds existing in a given
territory they could discover the ‘true’ mechanisms of the political system.7
To use Bossy’s lexicon, the Italian micro-historians thus celebrated the early
modern victory of feud and litigation over an abstract and anachronistic concept
of law. However, in doing so, they tended to undervalue the legal significance
of concepts such as ‘feud’ and ‘litigation’ and to put into the background the
contribution given by lawyers and jurists, an optical distortion which – it
should be noted – has been radically corrected in the last years by a new wave of
stimulating ‘micro-historical’ studies on tribunals and lawsuits.8
Micro-history and the history of criminal courts were not the only testing
grounds for Italian scholars interested in the early modern state and the
settlement of conflicts. In the same years a more ‘traditional’ historiography
reached conclusions similar to those of the micro-historians, although they re-
evaluated other elements of analysis.9 While these scholars still considered the
early modern state as a monolithic and centralized structure, they recognized
6
For an overview on the micro-historical perspective see Giovanni Levi, ‘The Origins
of the Modern State and the Microhistorical Perspective’, in Jürgen Schlumbohm (ed.),
Mikrogeschichte-Makrogeschichte: Komplementär oder inkommensurabel? (Göttingen, 1998),
pp. 53–82.
7
A fine example of a micro-historical investigation uncovering the political
constitution is offered by Osvaldo Raggio, Faide e parentele: lo stato genovese visto dalla
Fontanabuona (Turin, 1990).
8
See above all Simona Cerutti, Giustizia sommaria: pratiche e ideali di giustizia in
una società di Ancien Régime (Milan, 2003); for the recent trends of studies on justice in a
micro-analytical perspective see the last issues of Quaderni storici: ‘Istituzioni’, 139 (2012),
and ‘Difendersi in tribunale’, 141 (2012).
9
The main results of this new institutional history can be found in the works by
Giorgio Chittolini: see above all Giorgio Chittolini, La formazione dello stato regionale e
le istituzioni del contado, secoli XIV–XV (Turin, 1979). For a presentation of the different
directions of research see Julius Kirschner (ed.), The Origins of the State in Italy: 1300–1600
(Chicago, 1996); on this book see the critical review by Giuseppe Petralia, ‘Stato e moderno
in Italia e nel Rinascimento’, Storica, 8 (1997): pp. 7–48.
that it could no longer be described according to the traditional view of an

evolutionary state-building process. In fact, they tried to explain the slow
development of state institutions through the presence of a multitude of
jurisdictions and to understand the superficial contradiction between such a
unifying process and this polycentrism on the basis of juridical and constitutional
schemes of interpretation created during the late Middle Ages. In their opinion,
it was wrong to see a rupture between the medieval and the early modern
world; instead, it was more accurate to talk about processes of institutional
densification and intensification. Although the same political and juridical
relationships inherited from the Middle Ages persisted, their bonds with the
central authorities were reinforced and the state magistrates increased in power
to intervene in these relationships, especially in the administrative field.10
From the 1990s on, it became clear that in the early modern age it was the
concept itself of law which was different from ours. Law was not primarily the
expression of the state and its jurisdiction but had many different meanings,
according to various points of view. On the one hand, it was a stratification
of rights and statutes stemming from the past; on the other hand, it was an
ancient, unwritten legal tradition which ensured political cohesion within a
territory since time immemorial and included the right of feuding itself.11 In the
early modern age even normative structures completely distinct from juridical
ones could be considered as cogent as the written law, as moral and religious
obligations clearly show.12
Thanks to this redefinition of the concept of law, which simultaneously
shed new light on the idea of feud, the third key element for the resolution
of disputes according to Bossy came to the forefront. Bossy’s most innovative
contribution was his reconsideration of another theme beyond law and feud:
that of charity. In his postscript to the volume and in other works, he rightly
emphasized the presence of social and religious elements within disputes
and conflicts. In Italian historical work of this period, the words ‘friendship’
An accurate and sophisticated case-study on the Tuscan context is presented in

10
Luca Mannori, Il sovrano tutore: Pluralismo istituzionale e accentramento amministrativo nel

principato dei Medici (Secc. XVI–XVIII) (Milan, 1994).
11
This was the proposal by Otto Brunner in his influential Land and Lordship:
Structures of Governance in Medieval Austria (Philadelphia, 1992; first published Vienna,
1939). For a complex and refined reinterpretation of this paradigm see Marco Bellabarba, La
giustizia ai confini: il principato vescovile di Trento agli inizi dell’età moderna (Bologna, 1996).
12
Bernardo Clavero, Antidora: Antropología católica de la economia moderna (Milan,
1991). For an anthropological analysis of the jurisdictional pluralism in early modern
Europe see António Manuel Hespanha, La gracia del derecho: economia de la cultura en la
edad moderna (Madrid, 1993). It should be noted that these scholars attracted much less
attention in the Anglo-Saxon world than in France and Italy, where their works provoked a
heated debate among legal and social historians.
and ‘love’ also appeared as terms of analysis for the first time, carrying, however,
different meanings. Among micro-historians, charity was interpreted as a ritual
exchange occurring in religious institutions such as the lay confraternities,
while social and legal historians influenced by legal anthropology carefully
examined marriage litigation before and after the Council of Trent issued strict
rules on the subject.13 Moreover, wide surveys on the records of Italian criminal
courts showed that peacemaking rituals based on the idea of brotherly love
and community continued to be performed and maintained a strong religious
significance in Counter-Reformation Italy.14
Important consequences of this shift in historical interpretation were rapidly
brought to light. A new Verfassungsgeschichte (constitutional history), conscious
of the jurisdictional pluralism and of the coexistence of different normative
standards in early modern Europe, grounded its analysis in research on single
communities in a similar way to micro-historical surveys.15 In other words, some
historians sought to entwine the institutional discourse with a consideration
of local practices, explaining how pre-modern forms of confrontation were
preserved in the state-organized societies of the late Middle Ages and early
modern periods. Phenomena like the feud and factional rivalries revealed their
‘rational’ value as organizational patterns of social life, and were described as
institutionalized and respected counterparts to the political mechanisms
displayed by the state authorities.16 From this perspective, the old theme of
‘political languages’ gained in importance and changed focus in comparison
with the traditional view, which had taken into account only the treatises of
humanists and highly educated thinkers.17 In fact, political languages were
seen as codes of communication used in everyday political arenas at all levels
and thus to be perceived through pragmatic sources like administrative and
juridical records.
13
From the micro-historical viewpoint, see Angelo Torre, ‘Politics Cloaked in Worship:
State, Church and Local Power in Piedmont, 1570–1770’, Past and Present, 134 (1992):
pp. 42–92; Angelo Torre, Il consumo di devozioni: religione e comunità nelle campagne
dell’Ancien Régime (Venice, 1995). For the perspective influenced by legal anthropology, see
the series I processi matrimoniali degli archivi ecclesiastici italiani edited by Diego Quaglioni
and Silvana Seidel Menchi for Il Mulino Press.
14
Ottavia Niccoli, Perdonare: idee, pratiche, rituali in Italia tra Cinque e Seicento
(Rome and Bari, 2007).
15
Andrea Gamberini and Isabella Lazzarini (eds), The Italian Renaissance State
(Cambridge, 2012).
16
See also Stephen Cummins’ contribution to this volume.
17
See Andrea Gamberini and Giuseppe Petralia (eds), Linguaggi politici nell’Italia del
Rinascimento (Rome, 2007), and Andrea Gamberini and Andrea Zorzi (eds), The Languages
of Political Societies: Western Europe, 14th–17th Centuries (Rome, 2011).
Focusing both on the different discursive materials of political

communication and on institutions, this chapter will study the changes in the
ways in which social disputes were settled throughout the sixteenth century.
A problem that the current historiography has not yet fully analysed is that of
the continuities and discontinuities characterizing such historical processes.
If we take for granted that a medieval juridical apparatus persisted and the same
forms of conflicts took place for the whole early modern age until the eighteenth
century, it is clear that the general development of political systems still has to
be examined in its full complexity. At the same time, we do not have to skim
over real changes while we oppose the traditional too neatly defined barrier
between the late Middle Ages and the early modern period. In fact, as far as
disputes and their settlements are concerned, something did change: the culture
of conflict resolution shared by social actors. Private conflicts assumed a public
value and were regulated through the mediation of state magistrates charged
with the political duty of preserving the social order. Arbitration slowly became
a jurisdictional act, and factional struggles, which affected early modern Italy for
a long time in different forms, became part of a daily routine of government for
the state authorities. While the challenge of arbitration remained identical in its
components (factions, feuds, peaces, truces), their altered combination allowed
the nearly peaceful coexistence of the new political structure with older ways of
organizing Italian civil life. In the following pages this chapter will examine how
the feud could coexist with the law in early modern Tuscany.
The Tuscan Case: Some Peculiarities
The Tuscan case is particularly interesting as it shows the ambiguity of such a

polarization between transformation and stability. On one hand, the history of
the dukedom (thereafter the Grand Dukedom) of Tuscany undeniably portrays
political and institutional innovations which mostly emerged in the middle of
the sixteenth century. On the other hand, one should not underestimate the
weakness of a fragmented political structure, whose legitimacy was founded on
a medieval juridical ordo.18 Recognizing this dichotomy is not enough: it needs
to be explained. I will first give an outline of the main features of this situation,
which will, it is hoped, lead to a first interpretation of this phenomenon.
First of all, it has to be noted that in Tuscany a state-centred organization
did not develop almost inadvertently through the centuries, as happened in
other Italian states like the dukedom of Savoy or the Republic of Venice. Rather,
For a general overview of the problem see Luca Mannori, ‘La città e il principe:
18
l’equilibrio territoriale dello stato mediceo’, in Giuliano Pinto and Lorenzo Tanzini (eds),
Poteri centrali e autonomie nella Toscana medievale e moderna (Florence, 2012), pp. 161–81.
the Tuscan state has a founding date and its history is marked by well-defined
constitutional breaks. In 1532, after a rather confusing succession of events,
a member of the Medici family was elected ‘duke of the Florentine Republic’,
a noble rank with an amphibious legal character. However, the creation of a
pacified regional space, subject to the rule of the Medici dynasty, was primarily
due to Cosimo I, who reigned over Tuscany from 1537 for more than thirty years.
He imposed a strategy of government which continued to be implemented in
the following centuries until the end of the dynasty in 1737. In particular,
Cosimo started or completed vital political and administrative reforms that
allowed the Florentine magistrates to keep their subjugated territories under
control and to reduce communal self-government across the early modern period.
Nevertheless, political overhauls in the Tuscan state did not entail any change
in its fundamental constitutional configuration, which continued to be based
on the same models of political organization as in the fourteenth and fifteenth
centuries. The ‘new’ Medici dukedom had an ancient federal character and was
still composed of a vast and rich array of corporate bodies bound to a common
lord by different relations (foedera subiectionis, feudal ties and so on). A similarly
complex stratification of important and long-standing local powers can be easily
found behind the stability of such a thick political constellation. Since the 1970s
a new wave of American social historians have looked harder at the peripheral
realities and their elites, rather than at the capital city and its political dynamics.19
Categories such as those of clientage and patronage have been widely used in
order to trace the political bonds and the networks of interests which linked
Florence to the minor centres of the dominion and revealed the limits of the
Medici influence on it. Furthermore, this social history of politics has shown
the permanence of the same governmental tools between the late Middle Ages
and the new era of the Medici dukes.
An example from the periphery of the Tuscan state can better portray the
situation. Pistoia, a small city-state subjected to Florence in 1401, mirrors the
above-mentioned dialectic between a communal freedom of medieval origin
and the incisive control exercised by an almost absolutist prince.20 Evidence
can be found for both these assertions. On the one hand, Pistoia retained its
19
William J. Connell and Andrea Zorzi (eds), Florentine Tuscany: Structures and
Practices of Power (Cambridge, 2000), and Paula Findlen, Michelle M. Fontaine and Duane
J. Osheim (eds), Beyond Florence: The Contours of a Medieval and Early Renaissance Italy
(Stanford, 2003).
20
On Pistoia see David Herlihy, Medieval and Renaissance Pistoia: The Social History
of an Italian Town, 1200–1430 (New Haven, 1967); William J. Connell, La città dei crucci:
fazioni e clientele in uno stato repubblicano del ’400 (Florence, 2000); Francesco Salvestrini
(ed.), Il territorio pistoiese dall’Alto Medioevo allo stato territoriale fiorentino (Pistoia, 2004);
Alberto Cipriani, Vanna Torelli Vignali and Carlo Vivoli (eds), Il territorio pistoiese nel
granducato di Toscana (Pistoia, 2006).
jurisdictional autonomy as had been established by the bilateral foedus aequum

agreed with the Florentines at the beginning of the fifteenth century. Its territory
was never ruled according to the laws of Florence, and its citizens were judged
by ad hoc courts and magistrates specifically devoted to the government of
Pistoia and its district. Moreover, the city council maintained its control over
the ancient comitatus; this was exceptional in the Tuscan context.21 On the other
hand, the political organization of Pistoia underwent deep transformations and
a general loss of independence. From 1538, after riots against the newly elected
duke Cosimo I had broken out, until 1546, both the city statutes and the civic
magistrates were suppressed and rule over the city was given to the Florentine
authorities. Although the prior status quo was re-established after 1546, Pistoia
permanently lost its financial sovereignty, and local taxation was collected and
controlled by a Florentine magistrate called a camerlengo.22
All things considered, Pistoia offers an extraordinary case study even in the
already exceptional Tuscan context. In fact, it presents a functioning mixture
of communal liberties and of hard repression imposed by the state. However,
as has been well demonstrated, exceptions and anomalies can often better
reveal the norm and the daily functioning of a society.23 A historical analysis
concerning Pistoia and Tuscany has to take into account different aspects and to
put together financial, political and social problems. Here I will focus on social
disputes and their settlements in this city in order to scrutinize the new political
order constructed by the Medici dukes in their dominion.
The Languages of Factions
In the popular imagination Renaissance Italy is above all the land of vendetta,
a term so common that it has no need for translation. Important works have
shown the social role played by vengeance during the early modern period
21
‘Comitatus’ was the medieval term used in order to describe the administrative unity
of the late Roman Empire passed under the rule of the comes and of the city.
22
See Carlo Vivoli, ‘Tra autonomia e controllo centrale: il territorio pistoiese
nell’ambito della Toscana medicea’, in Luca Mannori (ed.), Comunità e poteri centrali negli
antichi Stati italiani: alle origini dei controlli amministrativi (Naples, 1997), pp. 139–82,
and Carlo Vivoli, ‘Cittadini pistoiesi e ufficiali granducali nel governo di Pistoia medicea’,
in Alberto Cipriani, Vanna Torelli Vignali and Carlo Vivoli (eds), Il territorio pistoiese nel
granducato di Toscana (Pistoia, 2006), pp. 1–47.
23
Edoardo Grendi, ‘Microanalisi e storia sociale’, Quaderni storici, 35 (1977):
pp. 506–520, and from a different perspective Carlo Ginzburg, ‘Clues: Roots of an Evidential
Paradigm’, in Carlo Ginzburg, Clues, Myths and the Historical Method (Baltimore, 1989),
pp. 96–125, 200–214.
in different parts of Italy, from the northern area of Friuli to Sicily.24 If by

‘vengeance’ many scholars mean a ‘Mediterranean-wide culture of feuding’, then
the word also belongs to the legal and institutional languages of early modern
states.25 As shown in the previous pages, in early modern Europe the concept of
law could not be reduced to state regulation but encompassed a much broader
normative system, in which factional struggles, feuding and vengeance coexisted
in a regulated manner and were not considered as uncontrolled explosions
of violence.
First of all, it is important to note that factional rivalries, the primum movens
of vengeance in many Italian cities, stemmed both from socio-economic reasons
and from ideological divergences. Although factions were by no means modern
political parties, the predominance of all-encompassing categorizations over the
centuries managed to create a political cohesion in the disjointed framework of
Renaissance Italy. The fact that in early modern sources it is still possible to find
references to the old division between Guelphs and Ghibellines cannot simply
be seen as a meaningless survival of a relic from a forgotten past, devoid of any
connection to the present political situation.26 The permanence of labels such
as those of Guelphs and Ghibellines has to be explained as the recourse to a
symbolic capital which was able to maintain an aggregative structure above the
contingencies of social life.
The case of Pistoia fits in this analysis perfectly. Here, since the fourteenth
century, social and political life had been polarized between two aggregations
of power, named after the most prominent families of the city aristocracy, the
Panciatichi and the Cancellieri. This urban struggle had direct effects on the
intra-communal conflicts of the Pistoiese district, spreading across the territory.
As has already been pointed out, each village and town of the countryside was
split into different factions according to the same pairing ruling over Pistoia.27
It is hard to imagine that such a bipolar taxonomy was used in order to describe
ideological links connecting the local factions with Pistoiese families and
Florentine politics, while it is much more probable that these tensions stemmed
from local dynamics, for instance about control over local economic resources.
Similarly, even within the walls of Pistoia, the two groups did not always
seem completely homogeneous. One of the bloodiest and most enduring
confrontations that took place in Pistoia in the 1530s and 1540s involved
families on the same side of the factional lines, which were all old and
24
On Friuli see above all Edward Muir, Mad Blood Stirring: Vendetta and Factions in
Friuli During the Renaissance (Baltimore, 1993); for a general overview on vendetta and
criminal justice in Renaissance Italy see Trevor Dean and Kate J.P. Lowe (eds), Crime, Society
and the Law in Renaissance Italy (Cambridge, 1994).
25
Muir, Mad Blood Stirring, p. 32.
26
Marco Gentile (ed.), Guelfi e ghibellini nell’Italia del Rinascimento (Rome, 2005).
27
Connell, La città dei crucci, pp. 72–7.
well-respected members of the Panciatichi faction: on one hand, the Cellesi and
Bracciolini; on the other hand, the Brunozzi. The motivations underlying these
confrontations did not stem from political frictions but rather from an internal
conflict among the city elite; in fact, the Brunozzi, who had recently moved to
Pistoia from the countryside, were entering city politics, seeking to assert their
own power in an already complex local situation.28 The internal struggle within
the Panciatichi faction resulted in an enlargement of the political oligarchy
of the city: the Brunozzi slowly performed the highest charges in the Pistoia
councils and became part of the few families which ruled over the city. As has
been shown for other Italian contexts, even in Pistoia factions cannot be seen
as the result of an immutable game ruled by family relationships.29 They were
first of all political alliances which adapted themselves to the situation through
matrimonial strategies and internal agreements. Once again, the factional
system showed its compliance to the mutable social equilibrium without losing
its intrinsic value as a means of government.
Despite changes in the system of factions, the names Panciatichi and
Cancellieri persisted and would again exert a great importance in the political
life. In the fifteenth century the Medici family attempted to undermine the
Panciatichi/Cancellieri contraposition thanks to new legislation which impeded
a predefined distribution of the city offices according to membership of factions.
A new election system, the so-called imborsamenti, was imposed. This based the
nomination process on closed lists of eligible citizens (the borse) from which the
city magistrates could exclusively be drawn. This modification clearly broadened
the Florentine control over the city elites: in this way, central authorities
could directly influence the election, intervening in the formation of such lists
according to loyalty to them rather than to affiliation to factions. However,
these measures concerned Pistoia much more than its hinterland, where the
political situation remained substantially unchanged.30 The new electoral system
nourished the patronage network of the Medici family, especially in the years of
28
On the social origins of the Brunozzi see Vivoli, ‘Cittadini pistoiesi’, p. 14; on the
Brunozzi–Cellesi–Bracciolini struggle see Olivier Rouchon, ‘Correspondance et crise
territoriale: les lettres d’un commissaire dans la Toscane des Médicis’, in Jean Boutier, Sandro
Landi and Olivier Rouchon (eds), La Politique par correspondance: les usages politiques de
la lettre en Italie (XIVe–XVIIIe siècle) (Rennes, 2009), pp. 109–129, especially pp. 124–6.
Another significant case of infra-factional contraposition has been studied by Donald
Weinstein, The Captain’s Concubine: Love, Honor and Violence in Renaissance Tuscany
(Baltimore, 2000).
29
On this aspect see Gérard Delille, Le Maire et le prieur: pouvoir central et pouvoir local
en Méditerranée occidentale, XVe–XVIIIe siècle (Rome and Paris, 2003).
30
For example, in 1454 the Florentine magistrate called the Cinque del Contado
imposed on the community of San Marcello Pistoiese, a little town in the mountains
surrounding Pistoia, that its statutes be amended and that the city offices equally divided
Lorenzo the Magnificent (1469–1492), and made no attempt to eradicate the

inevitable factional logics which underpinned the constitution of the lists and
the distribution of resources.31 On the contrary, a clear-cut distinction between
the Panciatichi and Cancellieri continued to be useful and effective from a
Florentine perspective.
It was above all the political and social crisis of the early sixteenth century
that compelled the Medici and the Florentine authorities to reconsider the
importance and vitality of factions. The mountains above Pistoia soon became
the battlefield between the Medici dukes and the defenders of the old Florentine
Republic, while the district of Pistoia became fundamental because of its
geographical position in the middle of different states (the Papal States, Ferrara
and Lucca). In such a context, the Panciatichi/Cancellieri struggle acquired an
unprecedented relevance.32 The main danger for the Medici family derived from
the alliance between the Cancellieri and the anti-Medici troops that came from
the surrounding states. It is worth noting that even a war like the one conducted
by Cosimo I, which has to be interpreted and appraised in the European context
of the ‘guerre d’Italia’, was played by the same rules as those which had governed
the factional struggles in the previous centuries. For instance, it is quite
remarkable that, despite the radically changed situation, the Cancellieri, an
ancient family of Guelph origins, still seemed to defend the position of a ‘French
party’ in Italy, while the Florentine Guelphs moved towards the Spaniards.33 The
dangers envisaged by the Medici did not, in reality, occur: the role played by the
Cancellieri in the civil quarrels was not decisive. In any case, Cosimo responded
to the concrete danger of a fall of the newly constituted regime by drawing the
Panciatichi to his side. This act broke the balance of power that had ruled over
Pistoia for more than a century and led to a change in the political dynamics
of the city, which very concretely resulted in numerous murders, in vendette
between the two factions of Panciatichi and Cancellieri: see Lorenzo Tanzini, Alle origini
della Toscana moderna: Firenze e gli statuti delle comunità soggette (Florence, 2007), p. 138 n.
31
Stephen J. Milner, ‘Lorenzo and Pistoia: Peacemaker or Partisan?’, in Michael Mallett
and Nicholas Mann (eds), Lorenzo the Magnificent: Culture and Politics (London, 1996),
pp. 235–52, and Stephen J. Milner, ‘Rubrics and Requests: Statutory Division and Supra-
Communal Clientage in Pistoia’, in William J. Connell and Andrea Zorzi (eds), Florentine
Tuscany: Structures and Practices of Power (Cambridge, 2000), pp. 312–32.
32
Paolo Simoncelli, Fuoriuscitismo repubblicano fiorentino, 1530–1537 (Milan, 2006),
pp. 310–34.
33
On fifteenth-century guelphism see Serena Ferente, ‘Guelphs! Factions, Liberty
and Sovereignty: Inquiries about Quattrocento’, History of Political Thought, 28 (2007):
pp. 571–89.
against the Cancellieri and finally even in an assault on the city jail presided by
the Florentine commissario.34
A struggle without any clear regulation emerged from this situation of
uncertainty. But it is precisely the urgent character of this period that best explains
the strategies deployed and promoted by different social actors. In particular,
the tactics of the Florentine magistrates became more distinct. One had to take
advantage of the utility of the Panciatichi, as the Otto di Balia (one of the most
important magistrates of the Florentine Republic) wrote, but they should be
forced to act as ‘soldiers and not as partisans or factious enemies’; moreover, it
was important both to stop the uncontrolled and brutal violence committed
by the Panciatichi against the rival faction in Pistoia and to obtain this goal
without alienating their vital help.35 The Otto explained in another letter that
it was ‘neither convenient nor honourable for the Florentine commissario to be
considered as a partisan of one faction rather than another’ (and thus he had to
behave as a ‘go-between’).36 The political lesson which Cosimo had to learn from
the civil war was evident: factions were forms of political organization against
which he could not and did not want to fight; his aim was to use factionalism as
a political asset.
The Modernity of the Ancient
When in 1546 Cosimo I regarded Pistoia as completely pacified, and restored

ancient privileges to the city which it was due as a Florentine ally, factional
groupings did not disappear. In the following years the duke and his servants
kept a close eye on the meetings held in Pistoia and on the inimicizie [enmities]
among the Pistoiese families. A first source of concern for the Medici came from
the factional gatherings, a custom which had been natural and legitimate in the
previous decades: in fact, it was during these sessions that the factions could
find an agreement and discuss a common strategy.37 Such a situation could no
longer be allowed in ducal Pistoia. The meetings organized by the Cancellieri
On the political crisis of the first years of Cosimo’s dukedom see Olivier Rouchon,
34
‘Les Troubles de 1537 dans la Domaine florentin’, Histoire, Economie et Société, 19 (2000):
pp. 25–48.
35
Archivio di Stato di Firenze, Carte Strozziane, s. I, 60, c. 73: letter of 8 June 1537:
‘come soldati et non come partigiani et inimici della fattione’.
36
Ibid., c. 91: letter of 13 June 1537: ‘conveniente né degno di questo magistrato
chiararsi partigiano più d’una factione che d’un’altra’, ‘persona di mezzo’.
37
For instance, factionary assemblies were officially gathered in 1524 after a violent
riot; during these meetings the peace proposed by the Florentine authorities was formally
accepted: see Marco Dedola, ‘“Tener Pistoia con le parti”’: governo fiorentino e fazioni
pistoiesi all’inizio del ’500’, Ricerche storiche, 22 (1992): pp. 239–59.
were especially dangerous for political stability, since they had suffered severely
at the hands of the Panciatichi during the turbulent 1530s and had many reasons
to seek vendetta. In March 1547 the Florentine magistrate was informed of
assemblies of the Cancellieri youth that were regularly taking place in Pistoia and
ordered that they be stopped immediately by force. Again, in November of the
following year, members of the Panciatichi factions wrote to Florence advising
that other ragunamenti of the Cancellieri were held within the city walls.38
These denunciations suggest the vivid anxiety about any new eruption of
factionary violence, which could be sparked at any time. This was probably the
main reason why the Florentines tried to take control over some of the most
sensitive events of city life, such as the feast of the saint patron and the festivities
of carnival.39 However, these measures also show how political divisions were
given life within a social fabric still founded upon membership of either the
Panciatichi or the Cancellieri. Evidence comes from the official appointments
of these years. Despite the imborsamenti, it was not possible to neglect factional
equilibrium in the division of political offices. For instance, when in 1550
Girolamo Tuci, ‘scrivano delle teste e dei proventi’, a sort of tax collector, was
found guilty of many misappropriations, Cosimo I decided to establish a
committee charged of a proper audit into the city finances. This was an advisory
body, appointed by the duke on a discretionary basis; nevertheless, even in this
special case, the choice was made between two lists of names, one from the
Panciatichi and the other from the Cancellieri.40
Hence, factions existed and were still considered as important gathering
nodes for politics. This also meant that a long tradition of factional disputes
persisted, through which everyone could clearly detect the divisions still present
in the city. Riots and incidents among the most prominent families continued
to occur and to inflame the city further. The confrontations between the
Cellesi and Fabbroni, Panciatichi and Tonti, Cellesi and Rospigliosi families
(just to cite some examples from the middle of the sixteenth century) clearly
attest to this. The enmities among families belonging to different factions
could often produce murders and other violent acts, while political discourse
38
Archivio di Stato di Firenze, Pratica segreta di Pistoia e Pontremoli, 483 and 484.
39
In Pistoia the carnival celebrations were forbidden for years and even the festival
of the patron Saint James was temporarily suppressed. These measures confirm the absolute
exceptionality of the Pistoiese case. After an earlier concession of allowing masquerade during
Carnival in order not to ‘overly restrict’ the young (letter of the Pratica segreta di Pistoia to
the commissario from 14 January 1547: Archivio di Stato di Firenze, Pratica segreta di Pistoia
e Pontremoli, 483), the ban on masquerade returned, as can be seen in a letter of 24 January
1556 and in others of 18 and 29 January 1557 (Pratica segreta di Pistoia e Pontremoli, 487
and 488); see also the prohibition of the patron saint’s feast in 1539 (Pratica segreta di Pistoia
e Pontremoli, 480).
40
Archivio di Stato di Firenze, Pratica segreta di Pistoia e Pontremoli, 485.
was once again characterized by writing libels, by smearing walls with ink and
excrement or by pinning mocking rhymes throughout the city.41 The types of
political clashes followed the fault lines that had been drawn into the political
terrain by centuries of conflict and reflected the similarly embedded modes of
political communication.42
In sum, can we agree with Michelangelo Salvi, the seventeenth-
century historian of the Pistoiese quarrels, who declared that in 1539 the
Panciatichi–Cancellieri war ended when Cosimo I established his pax medicea?43
From this perspective, we surely cannot. At the end of the seventeenth century,
40 years after Salvi’s work, a Florentine commissario in Pistoia described in an
official report a situation which was not very different from the one of a century
earlier: the same families and the same factions were responsible for the same
cruel brutality, riots and murders.44 It would, however, be unfair not to underline
the substantial novelty of Cosimo’s reforms. Although the duke did not change
the languages and dynamics of local power, his policies nonetheless performed
some sort of external management of them.
While the new statutes of 1546 mostly corresponded to the old statutory
norms, they also introduced important innovations. After such a long (and
necessary) introduction about the Tuscan and Pistoiese situation, time has
arrived to show how apparent continuities disguised some important political
and social novelties. First, tens of new names were added to the lists of the
eligible candidates for the city elections. Such a widening of the electoral corpus
explicitly aimed to create a new oligarchy which was to rule over the city with
the consensus of the Florentine dukes. This process was encouraged by Cosimo
I, although the results of this attempt could be seen only after a long period
of time, during which the Medici family tenaciously pursued the same political
purpose: the invention of a Tuscan elite.45 More than this decision, what is
41
The examples are drawn from an analysis of the documentation of the Pratica segreta
di Pistoia (until 1556 called the magistrate of the four commissari for the Pistoiese affairs)
preserved in the Archivio di Stato of Florence: in particular, see volumes 480–90.
42
For these forms of communication in Renaissance Italy see Lauro Martines, Strong
Words: Writing and Social Strain in the Italian Renaissance (Baltimore, 2001).
43
Michelangelo Salvi, Delle historie di Pistoia e fazioni d’Italia (Rome, 1656), vol. 3,
p. 172.
44
M. Valbonesi (ed.), ‘La relazione intorno alle fazioni dei Panciatichi e Cellesi in Pistoia
nella seconda metà del secolo decimo settimo attribuita al commissario Ferrante Capponi’,
Bullettino storico pistoiese, 111 (2009), pp. 223–64.
45
See Elena Fasano Guarini, ‘Principe e oligarchie nella Toscana del Cinquecento’, in
Elena Fasano Guarini, L’Italia moderna e la Toscana dei principi: discussioni e ricerche storiche
(Florence, 2008), pp. 221–39, and the important review by Franco Angiolini and Jean
Boutier, ‘Noblesses de capitales, noblesses périphériques: les dynamiques des élites urbaines
important to highlight here is the second major innovation inserted in the

statutes: the resolution of disputes.
The problem of conflicts among citizens was by no means new for the
Middle Ages and was well represented in medieval statutes. Both in Pistoia and
in Florence, in the fifteenth century measures were taken in order to regulate
and solve the disputes among members of the same family. The arbitrations
ex necessitate statuti were the response of the medieval communes to disputes
between kin up to the fourth degree of consanguinity.46 This norm recognized
the right of citizens to find an agreement among themselves in quarrels which
were considered private in nature, consequently taking away a large part of social
litigation from state control. An intervention of political power was required
only when the private agreements were not respected by the parties and the social
peace was broken. However, it is no less true that such a codification prepared
the ground, at least, for a significant advancement of public institutions in a
domain which was traditionally beyond their reach. In fact, whereas peace and
vendetta were merely bilateral acts, arbitrations needed a third external party.
Moreover, the statutory regulation of arbitrations gave them a public value both
in local society and in courts. Although they mainly ensured the right of families
to safeguard their privileges, they became in social practice a hybrid solution
between a private settlement and the expression of jurisdictional power.47
A much more drastic solution was propounded in the rubric 28 De discordiis
pacificandis from the fourth book of the Pistoiese Statuta, a section which
appeared for the first time in the 1546 edition.48 According to this regulation the
city priori and the commissario were officially mandated to become peacemakers
in private disputes. They had to force the parties to find an agreement or to
sign a three-year truce within 15 days. If the people involved had broken this
decision, the commissario and the priori had to condemn them to a penalty of
their judgment. A radical change was expressed in these few lines: to make peace
was no longer a free choice but a jurisdictional action now administered by the
public authorities. Such an intrusion of political power into private conflicts was
not universally accepted in the sixteenth century. One of the most important
juridical works of the time about peacemaking, published in the first years of the
dans le Grand-duché de Toscane (XVIe–XVIIIe siècles)’, in Martine Boiteux, Catherine Brice

and Carlo M. Travaglini (eds), Le nobiltà delle città capitali (Roma, 2009), pp. 51–75.
46
The 1451 Pistoiese statutes can be found in Archivio di Stato di Firenze, Statuti
delle comunità autonome e soggette, 597: see especially cc. 88r–89v (quod consanguinei et
consortes habentes controversias teneantur eas commictere); about the Florentine arbitrations
see Thomas Kuehn, Law, Family, and Women: Toward a Legal Anthropology of Renaissance
Italy (Chicago, 1993), pp. 19–74.
47
See some important remarks in Massimo Vallerani, ‘Pace e processo nel sistema
giudiziario del comune di Perugia’, Quaderni storici, 101 (1999): pp. 315–53.
48
Statuta civitatis Pistorii (Florence, 1546), c. 108r.
seventeenth century, shows the highly discordant opinions circulating among

the jurists on the subject. Some of them attributed to the city priores a power
of discretion ‘super bono’ which allowed them to intervene in order to ensure
the internal peace; in contrast, others underlined the proactive character of
peacemaking and stated that it was illegal to force the parties to make peace
before the sentence; still others limited the state power to special occasions (for
instance, when a danger was incumbent over the state or if the dispute involved
major local figures or had become a sort of civil war).49 Even Marcantonio Savelli,
a famous jurist working at the Medici court, did not allow an unconditional
interference of the magistrates in private quarrels, restraining it to those episodes
involving the ‘public tranquility’ (la pubblica quiete).50 This was clear in Pistoia,
where strife between families produced political rivalries and constituted a
potential risk for the central state.
The difference with the prior situation can be made clear through a
comparison between the peacemaking practices attested to in Tuscany from the
fifteenth century. In 1455, after an important factional clash in Pistoia, precise
criteria were fixed by the Florentine emissaries regulating future agreements
among factions; these laws were conceived in a particular political context
of emergency and aimed to find a solution to the little civil wars occurring in
the city.51 Consequently, the 1455 rules were not applied until new upheavals
occurred in the first years of the sixteenth century and in 1524.52 The change
is apparent after 1546, when peaces and truces were transformed from such
extraordinary measures to a daily practice of government, recorded by the public
notary and concerning even small riots and offences.53 In other words, the state
did not wait any more for a large-scale uprising before imposing its mediation
and asserting its influence on many different aspects of city life.
At the same time, the new statutory norms did not aim to subvert the social
and political scene in Pistoia, while nonetheless giving the factions a vertical
dimension which connected them to the Florentine magistrates. From a
49
Stefano Guazzini, De pace, treuga, verbo dato alicui principi vel alteri personae nobili
et de cautione de non offendendo (Rome, 1610), pp. 8–10 (Pars prima quaest. 7).
50
Marc’Antonio Savelli, Pratica universale (Venice, 1697), p. 241 n. 32. On Savelli see
Daniele Edigati, Una vita nelle istituzioni: Marc’Antonio Savelli giurista e cancelliere tra Stato
pontificio e Toscana medicea (Modigliana, 2005).
51
Francesco Neri, ‘I capitoli dei “Paciali” del 1455’, in Elena Vannucchi (ed.), Pistoia e
la Toscana nel Medioevo: studi per Natale Rauty (Pistoia, 1997), pp. 231–51.
52
See Archivio di Stato di Pistoia, Commissario, s. III, 34–5.
53
See the volumes of Paci e tregue collected in Archivio di Stato di Pistoia, Commissario,
s. III, 36 ff., which show a remarkable presence of peaces and truces throughout the early
modern age. Even from a sketchy analysis of this material it becomes apparent that peaces
became an instrument broadly used by Pistoiese citizens of every sort (from the patrician to
artisans and craftsmen).
practical point of view, this modification had deep implications for the balance
of powers in the city. After 1546, the mediating role played by the commissario
opened a new way to increase Florentine influence over Pistoia. In fact, many
disputes, especially those involving eminent families or citizens, were channelled
to Florence, where the disputants had to present before a special Pratica segreta.
Truce itself was a successful tool for pacification, because it gave more time to
the different factions to find a durable agreement, which was often patiently
propitiated by the commissario and the Florentine authorities. In case of stubborn
rejection of any peacemaking proposals, the magistrates could employ repressive
measures, such as imprisonment or even the bando, which is to say a forced exile
outside the state or a given territory.54
Furthermore, the interest developed by the Medici in the peaces, truces or
in the remission of injuries (a third form of temporary composition) had an
economic aspect. Peacemaking processes did not only entail rituals, such as
the osculum pacis, but had to be guaranteed by trustworthy fideiussores, who
had to pay the fines established in case of breach of the peace. This money had
to be distributed between the Florentine magistrates, the commissario and the
commune of Pistoia itself. In a way, the peaces could not be left to private parties
only, because they now concerned the fisco (treasury) – a term which in early
modern Italy encompassed much more than tax collecting and often represented
the power of the state itself.
As time passed, peace became more and more a judicial practice, a juridical
tool which ended the trials in the courts before a sentence was issued. In fact, if
a peace was signed, the judge had to accept the private agreement reached by the
litigants and the trial was thus immediately ended. These extra-judicial practices,
which recall the category of infrajudiciaire recently proposed by French scholars,
were clearly foreseen by the laws issued by Cosimo I in the same years and were
part of the normal possibilities offered to the litigants.55 As one can easily detect,
the modifications of the Pistoiese statutes and these laws were part of the same
political project, which aimed to adjust and not to erase social conflicts in
the state.
The strategy of the Medici revealed the continuing tensions between the
long-running rhythms of social and constitutional systems and the shorter-
run tactics of political practice that sought flexible and immediate solutions
to arising situations. At first glance, the Tuscan and Pistoiese panorama of the
54
We have to incidentally note that even the bando could nourish new forms of
vengeance. In fact, in Tuscany the bandito could be murdered by anyone who met him within
the state borders.
55
Daniele Edigati, ‘La pace privata e i suoi effetti sul processo criminale: il caso toscano
in età moderna’, Annali dell’Istituto storico italo-germanico in Trento, 34 (2008), pp. 11–65.
On the infrajudiciaire see Benoît Garnot (ed.), L’Infrajudiciaire du Moyen Age à l’époque
contemporaine (Dijon, 1996).
late sixteenth century was not much changed in comparison with the previous
centuries. In fact, Cosimo I managed to transform the medieval organization
of power from within: he did not impose radical innovations by force nor
did he plan revolutionary reforms, but he was able to graft elements to the
Tuscan constitution. Let us note some of the provisions taken by the duke in
these years and already discussed in these pages. The suppression of the city
offices in Pistoia was not an exceptional measure – for instance, a three-year
suspension had already taken place in 1502 – while the control over the city
finances imposed by Cosimo was an important step towards an administrative
centralization. Cosimo’s legislation regarding peaces and truces followed an old
juridical tradition, but the coercive power given to the authorities in order to
induce peace among litigants provoked an essential change. The pardon was
one of the most ancient prerogatives of the monarchical powers, but the pardon
offered by Cosimo to his enemies primarily had the propagandistic purpose to
show that social concordia had been re-established by the duke in Tuscany. Such
a shift of the political practice allowed the Medici to exert both their influence
in brokering disputes and their strength of interdiction in the local milieus. In so
doing, they finally abandoned the fifteenth-century strategy which Machiavelli
summarized according to the old formula of ‘holding Pistoia by factions’.56
The factions remained, while the Medici had changed their tactics.
The Tuscan Case in a Comparative Context
Stuart Carroll has recently proposed a complex comparative project on the

history of peacemaking in Europe, which should couple with the better-known
comparative histories of crime promoted since the mid-1990s.57 As Carroll has
remarked, such an undertaking would enable many aspects of early modern
society to be revealed: from its intellectual organization and justification (theory
of peace) to the political structure of power (law), finally showing the patterns
of social relationships and the rituals through which they were expressed. In
the previous pages I have not attempted to carry out such an ambitious project;
instead, I have focused on a small Italian case, and discussed only a few, although
noteworthy, characteristics. However, even a particular case study may offer a
56
‘Tenere Pistoia con le parti’: Niccolò Machiavelli, The Prince, trans. Russell Price
(Cambridge, 1988), Chapter 20.
57
Stuart Carroll, ‘Peace-Making in Early Modern Europe: Towards a Comparative
History’, in Paolo Broggio and Maria Pia Paoli (eds), Stringere la pace: teorie e pratiche
della conciliazione nell’Europa moderna (secoli XV–XVIII) (Rome, 2011), pp. 75–92. For
a comparative history of crime see the recent work edited by Carroll, Cultures of Violence:
Interpersonal Violence in Historical Perspective (Basingstoke, 2007).
different insight and additional evidence for a far more comprehensive history
of peacemaking.
In fact, the Pistoiese case shows the long continuity both of social
behaviours, such as feuds and civic quarrels, and of peacemaking practices,
shown in the arbitrations mediated and controlled by the state authorities
throughout the sixteenth and seventeenth centuries. Quite obviously, as time
passed, different social conflicts were signified under the same old definitions of
‘feud’ and ‘vendetta’. In Tuscany, as in other parts of Italy, new social elites were
replacing the old ones and absorbing them in a new ruling class depending on
the prince or on the state. A circular communication between the Florentine
court and the local elites was established and the medieval vendetta slowly lost
its political subversive nature, inadvertently assuming the character of ‘random’
clashes of violence. Communal violence possessed different meanings during its
long history.
Nonetheless, it is remarkable that a juridical lexicon based on peacemaking
and a social system centred on violent confrontations survived for such a long
time almost unchanged. Any attempt to interpret such an apparent immobility
is in danger of marking an unwelcome return to improbable anthropological or
even climatic theories about the supposed Italian and Mediterranean exception.
The Pistoiese case may offer a more nuanced and historically sustainable
explanation, which resides in the political organization affirmed in early modern
Italy. As has been shown, in Italy practices such as those of the arbitrations
or of the peaces became more and more public acts of jurisdiction, through
which the state aimed to punish violent crimes, for instance homicides.58 Thus,
‘private justice’ was still favoured by the political powers until the eighteenth-
century Enlightenment debate over punishment and in a way was incorporated
in state criminal justice. It was first of all a political choice and thus should
not be misinterpreted as a marker of institutional weakness and deficiency in
comparison with the major European monarchies. On the contrary, Italian
governments considered peaces, truces and other similar tools as the most
effective and therefore rational instruments in order to ensure social peace and
to maintain the coherence of the state. Tuscany appears to have been precocious
in placing these practices of composition under state control. This was a process
that occurred in other parts of Italy, such as the Republic of Venice, later and
in different ways, specifically between the sixteenth and seventeenth centuries.59
58
Marco Bellabarba, ‘Pace pubblica e pace privata: linguaggi e istituzioni processuali
nell’Italia moderna’, in Marco Bellabarba, Gerd Schwerhoff and Andrea Zorzi (eds),
Criminalità e giustizia in Italia e in Germania: pratiche giudiziarie e linguaggi giuridici tra
tardo medioevo ed età moderna (Bologna and Berlin, 2001), pp. 189–213.
59
For a comparison with the Venetian situation see Claudio Povolo, L’intrigo dell’onore:
poteri e istituzioni nella Repubblica di Venezia tra Cinque e Seicento (Verona, 1997), and the
recent overview ‘Dall’ordine della pace all’ordine pubblico: Uno sguardo da Venezia e il suo
This is also probably the reason why Tuscany maintained a more conservative
structure, preserving for a longer period the peacemaking rituals as an established
form of public composition ruled by the state. More effectively and earlier than
other Italian states, the Tuscan dukedom succeeded in conciliating the ancient
with the modern and placing the justice of the prince not above nor at the level
of the law but at the crossroad between feud and law.
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comunità soggette (Florence: Olschki, 2007).
Torre, Angelo, ‘Politics Cloaked in Worship: State, Church and Local Power in
Piedmont, 1570–1770’, Past and Present, 134 (1992): 42–92.
——— Il consumo di devozioni: religione e comunità nelle campagne dell’Ancien
Régime (Venice: Marsilio, 1995).
Vallerani, Massimo, ‘Pace e processo nel sistema giudiziario del comune di
Perugia’, Quaderni storici, 101 (1999): 315–53.
Vivoli, Carlo, ‘Tra autonomia e controllo centrale: il territorio pistoiese
nell’ambito della Toscana medicea’, in Luca Mannori (ed.), Comunità e poteri
centrali negli antichi Stati italiani: alle origini dei controlli amministrativi
(Naples: Cuen, 1997).
——— ‘Cittadini pistoiesi e ufficiali granducali nel governo di Pistoia medicea’,
in Alberto Cipriani, Vanna Torelli Vignali and Carlo Vivoli (eds), Il
territorio pistoiese nel granducato di Toscana (Pistoia: Società pistoiese di
storia patria, 2006).
Weinstein, Donald, The Captain’s Concubine: Love, Honor and Violence in
Renaissance Tuscany (Baltimore: The Johns Hopkins University Press, 2000).
Part II
Mediation, Reconciliation, Coexistence
Chapter 3
‘Types’ of Peacemakers:
Exploring the Authority and Self-
Perception of the Early Modern Papacy
Christian Schneider
Christian doctrine tasks every individual, and accordingly every ruler, to care
for peace.1 But in the medieval and early modern period, the papacy claimed
a special competence and responsibility in preserving and making peace
among Christians. Conversely, at least in principle, medieval Christian rulers
acknowledged the pope as supreme pacifier of Latin Christendom (Pacificator
Orbis Christiani).2 In the early modern period, however, the outbreak of the
Reformation challenged the position of the pontiff as supreme maker and
preserver of peace.3 An important question is, therefore, how much authority
were warring rulers willing to concede to the pope as a peace-broker? And
how much authority did individual popes actually try to assume when it
came to specific peace negotiations? More generally, these questions address a
fundamental issue for the study of peacemaking: how and to what extent did
all parties involved in a peace process – the disputants as well as the pacifiers –
define the role and authority of the peacemakers?
Engaging with methodological reflections from the fields of legal
anthropology, history of law and diplomatic history, this chapter explores the
legal extent and restrictions of the authority of three different ‘types’ of
peacemakers: the ‘judge’, the ‘arbitrator’ and the ‘mediator’. With reference to
1
I would like to thank Dr Toby Osborne (Durham), Niall Oddy (Durham) and
Bram De Ridder (Leuven) for their invaluable advice on this chapter. I am also thankful
to the University of Durham, the Swiss National Science Foundation, the Senior Common
Room of University College (Durham), the Royal Historical Society and the Society for
Renaissance Studies for their generous support of my research. All translations are mine
unless otherwise indicated.
2
Christoph Kampmann, Arbiter und Friedensstiftung: Die Auseinandersetzung um
den politischen Schiedsrichter im Europa der Frühen Neuzeit (Paderborn, 2001), pp. 31–3.
3
Randall Lesaffer, ‘Peace Treaties from Lodi to Westphalia’, in Randall Lesaffer (ed.),
Peace Treaties and International Law in European History: From the Late Middle Ages to
World War One (Cambridge, 2004), pp. 9–44 (pp. 12, 23–4, 42).
the role of the early modern papacy as a peacemaking force, this chapter will
demonstrate that analysing conflicts according to distinctive types of peacemakers
sheds light on the authority, behaviour, procedure and self-perception of
peace-brokers.
Styles of Peacemaking: Anthropological and Historical Observations
In Chapter 1 of this volume, John Jordan discusses trends which arose from
within the field of legal anthropology and how they have been adopted by
historians since John Bossy’s Disputes and Settlements: Law and Human Relations
in the West (1983).4 The present chapter engages particularly with the three forms
of settlement processes which the legal anthropologist Simon Roberts described
in his essay in Disputes and Settlements: bilateral negotiation, mediation and
umpirage.5 In bilateral negotiations, according to Roberts, the parties in conflict
resolve their quarrels directly themselves without the intervention of any neutral
peacemakers.6 They may, however, involve the presence of a ‘passive observer
whose mere presence sanctions bilateral decision-making’.7
In a dispute settlement by mediation, a third party makes the rivals agree
on a compromise. The potential scope of action of conciliators in a mediation
is wide. It ranges from peacemakers acting as mere ‘go-betweens’ to their
active participation in the peace talks. In other words, mediators can restrict
their activities to simply enabling communication between the disputants by
forwarding messages and presenting proposals of the rival parties. They can,
however, also give advice, express their opinion and present their own solutions
to a dispute. In the end, the conflicting parties are free to accept or reject the
compromise reached. This freedom of choice for the opponents is absent in
the settlement by an umpire.
In an umpirage, Roberts elucidated, the disputants are subject to a legally
binding decision taken by either an arbitrator or an adjudicator. In Roberts’s
definition an arbitrator is a person to whom the opposing parties had conceded
this authority to take a binding decision. The adjudicator, on the other hand,
4
(Cambridge, 1983).
5
Simon Roberts, ‘The Study of Dispute: Anthropological Perspectives’, in John Bossy
(ed.), Disputes and Settlements: Law and Human Relations in the West (Cambridge, 1983),
pp. 1–24 (pp. 11–12). See also: Simon Roberts, Order and Dispute: An Introduction to
Legal Anthropology (Harmondsworth, 1979), pp. 69–78; and more recently: Simon Roberts
and Michael Palmer, Dispute Processes: ADR and the Primary Forms of Decision-Making
(Cambridge, 2005), esp. pp. 11–15, 90–97, 153–8, 264–6.
6
Roberts, ‘The Study of Dispute’, p. 11.
7
The passive observer is added as an option in Roberts and Palmer, Dispute Processes, p. 91.
‘Types’ of Peacemakers 79
‘intervenes to impose a decision’ ex officio ‘rather than by the invitation of the

disputants’.8 At large, as the next paragraphs will show, these anthropological
observations coincide with historical modes of peacemaking.
One judicial form for settling legal disputes and repairing criminal offences
in medieval and early modern Europe was the accusatory process. Based on
Roman civil law, this legal procedure required victims to indict their offenders
at the competent jurisdictional court as well as to prove their accusation
before a judge.9 This suggests that, for the purpose of constructing historical
‘types’ of peacemakers, Roberts’s definition of ‘adjudicators’ as persons who
intervene in a conflict by virtue of their office is too narrow: additionally to
acting independently ex officio, a jurisdictionally competent person could also
intervene in an argument at the solicitation of one of the conflicting parties.
Individuals with the jurisdictional competence to settle a dispute by a legally
binding decision and who act either ex officio or at the request of a disputant
shall therefore be referred to as ‘judges’ in this chapter.
From the second half of the twelfth century onwards, the importance of
arbitration as an alternative to a decision by a ‘judge’ increased significantly
in medieval legal practice, at first mainly in the areas of modern-day northern
Italy, Switzerland and southern Germany.10 To those conflicting parties who
agreed to subject themselves to the judgment by a third party of their choice,
arbitration offered the advantage of being ‘less complicated, more flexible, faster
and thus altogether less expensive than the … often protracted procedure at the
competent court’ which strictly followed legal and procedural prescriptions.11
By the late Middle Ages, arbitration had become an important instrument
for the settlement of ‘private’ legal disputes not only in many parts of central
and western Europe but also in ‘public’ and ‘international’ conflicts in spite of
difficulties in the enforcement of arbitral verdicts.12
Arbitration remained a tool for preventing war and for peacemaking in the
sixteenth (and according to Christoph Kampmann even in the seventeenth)
8
9
John H. Arnold, Inquisition and Power: Catharism and the Confessing Subject in
Medieval Languedoc (Philadelphia, 2001), p. 30.
10
Kampmann, Arbiter, p. 27. For a study on the emergence of arbitration in legal practice
in the high and late Middle Ages north of the Alps, see Karl S. Bader, ‘Arbiter arbitrator seu
amicabilis compositor: Zur Verbreitung einer kanonistischen Formel in Gebieten nördlich
der Alpen’, Zeitschrift der Savigny–Stiftung für Rechtsgeschichte, Kanonistische Abteilung,
46/1 (1960): pp. 239–76.
11
Kampmann, Arbiter, p. 27.
12
Ibid., pp. 26–7, 30–31; Karl-Heinz Ziegler, ‘The Influence of Medieval Roman
Law on Peace Treaties’, in Lesaffer (ed.), Peace Treaties, pp. 147–61 (pp. 151–2); Alexander
Koller, ‘Mediation’, in Friedrich Jäger (ed.), Enzyklopädie der Neuzeit, 16 vols (Stuttgart,
2005–2012), vol. 8 (2008), cols 213–19 (col. 214).
century.13 ‘International’ conflict resolution by means of mediation, however,

started to become the norm in the early modern period.14 Concurring with
Roberts’s anthropological observations, studies of modern international law
suggest that the range of procedural methods of ‘mediators’ is wide and that
it certainly includes the option of introducing proposals for the solution of a
conflict.15 If we use the term ‘mediator’ in studies of early modern peace processes,
however, we need to bear in mind that the scope of action of ‘mediators’ was not
yet necessarily as wide as this in the early modern period.
Seventeenth- and eighteenth-century theorists of international law varied in
their interpretation and definition of ‘mediation’ and of the role of ‘mediators’.
As Heinz Duchhardt concluded, legal theory did not always reflect actual
peacemaking practice. In particular, Duchhardt observed that literature on
international law was ahead of its time regarding the idea that preparing and
presenting substantial peace proposals constituted a task of a mediator at peace
negotiations.16 For example, Duchhardt supposed that the English government
did not initially have any clear notion what functions Charles II of England
would be exerting when, in 1674, the king decided to assume the role of a
‘mediator’ during the peace negotiations of Nijmegen (signed 1678–1679). By
January 1676 at the latest, however, the English had made up their mind. When
the prince of Orange – the later William III of England – presumed that the
‘mediator’ would ‘propose the termes of the peace’, the English envoys explained
that Charles II did not have any intention at all to ‘arbitrate or determine’.
Like a mere ‘go-between’, the English ‘mediator’ wished only to pass on the
propositions and ideas of the parties.17
13
Kampmann, Arbiter, pp. 14–15, 30–31; see also Koller, ‘Mediation’, col. 214.
14
Koller, ‘Mediation’, col. 214. For a more detailed survey of ‘international’ peacemaking
practices in the early modern period, see Lesaffer, ‘Peace Treaties from Lodi to Westphalia’,
passim; Heinz Duchhardt, ‘Peace Treaties from Westphalia to the Revolutionary Era’, in
Lesaffer (ed.), Peace Treaties, pp. 45–58.
15
See, for example, Jacob Bercovitch, ‘International Mediation’, Journal of Peace
Research, 28/1 (1991): pp. 3–6 (pp. 3–4). For an outline of a suggested range of options
available to a modern-day ‘mediator’ in international conflicts, see Jacob Bercovitch, ‘Mediation
in International Conflicts: Theory, Practice, and Developments’, in Ira W. Zartman (ed.),
Peacemaking in International Conflict: Methods and Techniques (Washington, DC, 2007),
pp. 163–94 (p. 177). For a discussion of ‘mediation’ not restricted solely to international law,
see James A. Wall (Jr), John B. Stark and Rhetta L. Standifer, ‘Mediation: A Current Review
and Theory Development’, The Journal of Conflict Resolution, 45/3 (2001): pp. 370–91.
16
Heinz Duchhardt, ‘“Friedensvermittlung” im Völkerrecht des 17. und
18. Jahrhunderts: Von Grotius zu Vattel’, in Heinz Duchhardt (ed.), Studien zur
Friedensvermittlung in der Frühen Neuzeit (Wiesbaden, 1979), pp. 89–117 (pp. 98, 115–16).
17
Heinz Duchhardt, ‘Arbitration, Mediation oder Bons Offices? Die englische
Friedensvermittlung in Nijmwegen 1676–1679’, in Heinz Duchhardt (ed.), Studien zur
Based on these anthropological and historical observations, in this chapter,

‘mediators’ are defined as peacemakers who have been accepted by the conflicting
parties; they do not take any binding decision but exert a varying degree of
influence on the disputants. ‘Arbitrators’ are chosen by the parties in conflict
and take a legally binding decision. ‘Judges’ also take a legally binding decision
but they either act independently ex officio (Roberts’s ‘adjudicator’) or intervene
upon the request of one party who considers the ‘judge’ to have the jurisdictional
competence to decide over the dispute. Obviously, these ‘types’ of peacemakers
are artificial constructs. In the previous chapter, for example, Marco Cavarzere
explained that the Statuta of Pistoia officially charged the commissario and the
priori of the city to intervene in private conflicts and to make the disputants
settle their conflict in an agreement. In other words, the Pistoiese priori and
commissario had to intervene in private disputes ex officio (like ‘judges’); they
were, however, meant to make the disputants find a compromise rather than to
take a decision themselves and thus had to proceed like ‘mediators’. Although
the ‘types’ of peacemakers are artificial constructs, in this example they still serve
to highlight the important difference between a peace-broker’s ‘authority to
intervene ex officio’ and the ‘authority to take a decision’.
Simon Roberts also emphasized the artificial or theoretical nature of a
typology of pacifiers, explaining that the range from ‘mediator’ to ‘adjudicator’
constitutes ‘a continuum along which these analytically distinct functions merge
into one another in practice’.18 Similarly, historical examples show that in the
Middle Ages parties in conflict sometimes also entrusted a conciliator with a
wide spectrum of power which ranged from making the disputants agree on a
compromise to taking legally binding decisions.19 Moreover, at international
peace congresses in the seventeenth century peacemakers often exceeded their
originally self-imposed limitations to act as passive ‘go-betweens’ and introduced
their own proposals.20 For the study of dispute settlements, the differentiation
between umpirage and mediation is useful because it demarcates where the
power to decide lies.21 Roberts suggested that within umpirage, the difference
between an adjudicator and an arbitrator ‘is of limited importance’ because
Friedensvermittlung in der Frühen Neuzeit (Wiesbaden, 1979), pp. 23–88 (pp. 29–31;
quotations: pp. 30 and 31).
18
19
Wilhelm G. Grewe, The Epochs of International Law, trans. Michael Byers (Berlin,
2000), p. 100. See also Kampmann, Arbiter, p. 29; Bader, ‘Arbiter arbitrator seu amicabilis
compositor’, passim.
20
Michael Rohrschneider, ‘Friedensvermittlung und Kongresswesen: Strukturen –
Träger – Perzeption (1643–1697)’, in Christoph Kampmann et al. (eds), L’art de la paix:
Kongresswesen und Friedensstiftung im Zeitalter des Westfälischen Friedens (Münster, 2011),
pp. 139–65 (pp. 146, 153).
21
Roberts and Palmer, Dispute Processes, p. 91.
both types have the authority to impose their ruling on the litigant parties.22
If a study is merely concerned with the question of whether a peacemaker has the
power to decide, this may indeed be true. For evaluating the actual, ascribed or
assumed authority of a conciliator, this distinction is, however, crucial: whether
peacemakers can, or believe they can, intervene like a ‘judge’ by virtue of their
office or as an ‘arbitrator’ only is telling of their real or self-conceived position
of authority. This is particularly important for studying the role of the pope as
a peacemaker.
The Three ‘Types’ of Peacemakers and the Perception of Papal Authority
The medieval papacy claimed ‘spiritual jurisdiction over all Christian rulers,
ratione peccati’ – that is, when they failed in their duties as good Christians.23 In
such cases, popes of the twelfth and thirteenth centuries felt entitled to act as the
supreme judges of the world (iudex mundi) and ‘to enforce the validity of their
judicial decisions in purely political conflicts between temporal authorities’.24
According to Konrad Repgen and Christoph Kampmann, failures of pontiffs
to assert their authority as ‘judges’ or ‘arbitrators’ harmed the reputation of
the papacy and from the fourteenth and fifteenth centuries onwards popes
often tried to act as ‘mediators’ instead.25 In the sixteenth century, particularly
due to the outbreak of the Reformation, the medieval legal order of Latin
Christendom ‘under the supreme, if theoretical, leadership of the pope and the
emperor’ collapsed. Since Protestant princes did not acknowledge the papal
claim to spiritual jurisdiction, they undermined the position of the pope as
supreme peacemaker and -keeper further, even in Catholic Christendom.26 This
serious challenge to the authority of the pontifex maximus in general, and to
his position as supreme peacemaker in particular, signified that papal pacifiers
often had to consider carefully to what degree they should try to exert authority.

22
For medieval theories of papal spiritual and temporal authority, see for example:
23
John A. Watt, The Theory of Papal Monarchy in the Thirteenth Century: The Contribution of
the Canonists (London, 1965).
24
Grewe, International Law, pp. 93–4.
25
Kampmann, Arbiter, p. 33. See also: Konrad Repgen, ‘Friedensvermittlung und
Friedensvermittler beim Westfälischen Frieden’, Westfälische Zeitschrift, 147 (1997):
pp. 37–61. Reprint (slightly altered) in Konrad Repgen, Dreißigjähriger Krieg und
Westfälischer Friede: Studien und Quellen, ed Franz Bosbach and Christoph Kampmann
(Paderborn, 1998), pp. 695–719 (pp. 702–703); Konrad Repgen, ‘Friedensvermittlung als
Element europäischer Politik vom Mittelalter bis zur Gegenwart: Ein Vortrag’, in Repgen,
Dreißig jähriger Krieg, pp. 799–816 (pp. 814–15).
26
Lesaffer, ‘Peace Treaties from Lodi to Westphalia’, pp. 11–13, 24, 42 (quotation p. 11).
Distinguishing between different roles of peacemakers is therefore not a purely

academic exercise.
The three ‘types’ of peacemakers could provide a tool to assess papal authority
within the historiographical paradigm of the collapse of the medieval European
legal order in the early modern period. In a short methodological essay it is
impossible to provide a full account of the long tradition of papal reconciliation
or to analyse the changing role of the papacy as a peacemaking force throughout
the early modern period.27 The aim of this chapter is to show that the three ‘types’
of peacemakers could be used for analysing the role(s) of supreme pontiffs as
pacifiers in particular conflicts and that they could facilitate an extensive study
of papal peacemaking or of the perception of papal authority over a long period
of time. The first example will demonstrate that even in the fifteenth century,
popes still took decisions as supreme ‘judges’ and thus did not necessarily always
choose to act as ‘mediators’ between princes.
The Pope as Supreme ‘Judge’: Alexander VI and the New World
In the fifteenth century, the kings of Portugal obtained confirmation of

dominion over their discoveries in Africa from various pontiffs and, in 1481,
Pope Sixtus IV’s bull Aeterni Regis confirmed a treaty between Castile and
Portugal which had conceded to Portugal all territories south of the Canaries.28
These confirmations were based on the medieval doctrine that the supreme
pontiff alone could dispose over the lands of pagans and infidels, a controversial
27
For studies of papal peacemaking over a longer period of time, see, for mainly the
twelfth and thirteenth century, Werner Maleczek, ‘Das Frieden stiftende Papsttum im 12.
und 13. Jahrhundert’, in Johannes Fried (ed.), Träger und Instrumentarien des Friedens im
hohen und späten Mittelalter (Sigmaringen, 1996), pp. 249–332; from the thirteenth to the
mid-sixteenth century, Joycelyne G. Russell, Peacemaking in the Renaissance (London, 1986),
pp. 21–47; for the sixteenth century, Alain Tallon, ‘Les missions de paix de la papauté au
XVIe siècle’, in Daniel Tollet (ed.), Guerres et paix en Europe centrale aux époques moderne
et contemporaine: mélanges d’histoire des relations internationales offerts à Jean Bérenger
(Paris, 2003), pp. 165–80 (passim); and for the seventeenth century, Bernard Barbiche, ‘La
diplomatie pontificale au XVIIe siècle’, Armées et diplomatie dans l’Europe du XVIIe siècle:
Actes du Colloque de 1991. Bulletin de l’Association des Historiens modernistes des Universités,
16 (1992): pp. 109–127 (passim). For recent studies on the papacy’s involvement in
international politics, see Maria Antonietta Visceglia (ed.), Papato e politica internazionale
nella prima età moderna (Rome, 2013), in particular Alain Tallon, ‘Conflits et médiations
dans la politique internationale de la papauté’, pp. 117–29.
28
In 1418 from Martin V, in 1433 and 1436 from Eugene IV, in 1452 and 1455
from Nicholas V and in 1458 from the Spanish Pope Callixtus III. Bartolomé Bennassar,
‘Tordesillas: el primer reparto del mundo’, Política Exterior, 6/25 (1992): pp. 151–9 (p. 153).
doctrine which had been refuted by Thomas Aquinas and later by Francisco de
Vitoria in the thirteenth and sixteenth centuries.29
On his return from the New World, a storm forced Christopher Columbus
to land in Portugal, where he met King John II on 9 March 1493. Learning of
Columbus’s discoveries, John II claimed that the newly found land belonged to
Portugal. Ferdinand and Isabella of Aragon, Castile and León reacted as soon
as they heard of the discoveries and John II’s claims to them.30 Following the
example of the Portuguese kings, Isabella and Ferdinand, too, asked the supreme
pontiff to confirm their ownership of the lands which Christopher Columbus
had discovered in their name in 1492. This request was granted, upon the
condition of the evangelization of the original inhabitants, by the Valencian
Pope Alexander VI in the bull Inter Caetera, dated 3 May 1493.31
In a second bull, also called Inter Caetera, issued later in May or in June but
antedated to 4 May 1493, the pontiff decreed that all territories found to the
west of a longitudinal demarcation line 100 leagues west of the Cape Verde
Islands were to belong to Spain unless they had been held in possession by a
Christian ruler prior to Christmas 1492.32 The pope further specified the rights
and privileges of Spain in two additional bulls: not prior to July he expedited
Eximiae Devotionis (antedated to 3 May 1493), followed by Dudum Siquidem
on 26 September 1493.33
In his influential Mare Liberum (1609), Hugo Grotius asserted that Spain
and Portugal had chosen Alexander VI as ‘arbiter between them’.34 In reality, the
pontiff only issued the bull at the request of one party, the Spanish monarchs.
Therefore, strictly speaking, the ruling of the pope did not actually constitute
an arbitral award: upon the request of one party, Alexander VI decided over
the ownership of ‘pagan’ lands as the supreme ‘judge’ on Earth.35 In both bulls,
however, the pontifex maximus declared that ‘we’ acted out ‘of our own accord,
not at your [the Spanish monarchs’] instance nor the request of anyone else in
your regard’. The pontiff continued that he had issued the bulls due to ‘our own
29
Ibid., pp. 152–4.
30
Frances G. Davenport, European Treaties Bearing on the History of the United States
and Its Dependencies (Washington, DC, 1917), pp. 9 and 58.
31
Bennassar, ‘Tordesillas’, pp. 152–4, 158–9. The bull is edited and translated in
Davenport, European Treaties, pp. 58–63.
32
The bull is edited and translated in Davenport, European Treaties, pp. 72–8. For the
demarcation line see ibid., p. 77. See also Bennassar, ‘Tordesillas’, pp. 154, 158–9.
33
These bulls are also edited and translated in Davenport, European Treaties, pp. 64–70
and 80–83.
34
‘lectus inter illos arbiter’. Cited in Teobaldo Filesi, ‘Esordi del colonialismo e azione
della Chiesa’, Africa: Rivista trimestrale di studi e documentazione dell’Istituto Italiano per
l’Africa e l’Oriente, 20/4 (1965): pp. 370–403 (p. 377).
35
See also ibid., pp. 377–8.
sole largess and certain knowledge and out of the fullness of our apostolic power,
by the authority of Almighty God conferred upon us in blessed Peter and of
the vicarship of Jesus Christ which we hold on earth’.36 As mentioned, the pope
issued the bull at the instance of Ferdinand and Isabella. The pontiff ’s assertion
in the bulls, however, should not lead to the erroneous conclusion that the pope
tried to present himself as a ‘judge’ who acted ex officio. In the fifteenth century,
nearly every papal award or disposition was issued at request only, even if the
document declared the contrary: a papal act which was granted motu proprio
(of a pope’s own free will) enjoyed an exemption from the payment of a fee and,
consequently, many petitioners specifically asked for a motu proprio in their
supplications.37 Alexander VI therefore did not act like Roberts’s ‘adjudicator’
upon his own initiative but as a ‘judge’ at the instance of Ferdinand and Isabella.
The King of Portugal, John II, felt that the Valencian pope had privileged
the monarchs of his native kingdom too generously. Avoiding another papal
decision, John II sought direct contact with Spain and obtained that, in the
Treaty of Tordesillas (signed 1494), the original demarcation line was moved
by 270 leagues to a longitudinal line 370 leagues (c. 2,200 kilometres) west of
Cape Verde. Unlike the bulls Inter Caetera, the Treaty of Tordesillas explicitly
stipulated that the lands and islands discovered by the Portuguese to the east
of the demarcation line were to belong to Portugal.38 Because the two parties
amended the pope’s rulings in the treaty, they arranged that they would ‘entreat
our most Holy Father that his Holiness be pleased to confirm and approve this
said agreement’.39 The treaty, however, was only confirmed 12 years later by Pope
Julius II in the bull Ea Quae Pro Bono Pacis (1506).40 Presumably, Alexander VI
himself did not agree with the idea that the Spanish and Portuguese monarchs
had the authority to alter his decisions of 1493.41
Although, in Tordesillas, both parties agreed to amend the pontiff ’s ruling,
in principle they still concurred with the idea that the pope had the authority
36
Cited according to the English translation of the bulls in Davenport, European
Treaties, pp. 62 and 77.
37
Johannes Haller, ‘Die Ausfertigung der Provisionen: Ein Beitrag zur Diplomatik
der Papsturkunden des 14. und 15. Jahrhunderts’, Quellen und Forschungen aus italienischen
Archiven und Bibliotheken (henceforth QFIAB), 2 (1899): pp. 1–40 (pp. 3–4). For similar
motu proprio phrases as in the bulls Inter Caetera, see Romanus Pontifex (1455) and Aeterni
Regis (1481), in Davenport, European Treaties, pp. 23 and 54–5 respectively.
38
The treaty is edited and translated in Davenport, European Treaties, pp. 86–100; see
in particular p. 95. See also William S. Goldman, ‘Spain and the Founding of Jamestown’, The
William and Mary Quarterly, 68/3 (2011): pp. 427–50 (p. 429).
39
Cited according to the English translation of the treaty in Davenport, European
Treaties, p. 99.
40
The bull is edited and translated in: ibid., pp. 108–11.
41
Filesi, ‘Esordi del colonialismo’, p. 381.
to decide over the ownership of pagan and uninhabited parts of the world. And
unsurprisingly so: the monarchs of Spain and Portugal had secured a monopoly
over future discoveries in the entire world. The other European powers, however,
contested this distribution of lands and, especially from the seventeenth century
onwards, the French, Dutch and English terminated the ‘Iberian monopoly’.42
They argued that, according to the ‘ancient Roman legal prescript of res
nullius, … only the physical possession of territory was a factor in ownership of
newly discovered lands’.43
Therefore, Alexander VI settled the conflict between the Spanish and
Portuguese crowns not ex officio but only once he had been invoked as the
supreme ‘judge’ of the world by the Spanish monarchs. The two parties, however,
felt that they could amend the pope’s ruling as they saw fit: the Spanish and
Portuguese monarchs treated the decision of the papal ‘judge’ like an arbitral
award on which a consensus could be based in a bilateral agreement. Moreover,
in the end, the validity of the papal grants was only accepted by the two powers
who also benefitted from them. If Christian princes were unlikely to adhere to
a papal decision, especially in the wake of the Reformation, then it was best for
papal peacemakers to avoid becoming charged with the task of pronouncing a
judgment in the first place. However, as the following examples will show, this
does not signify that papal pacifiers either observed or truly wished to observe
strict impartiality after 1500.
The Question of Authority: Cardinal Alexander de’ Medici in Vervins
In 1589, after the assassination of Henry III of France, the Calvinist Henry
of Navarre reached for the French crown. Supporting a league of Catholic
noblemen, Philip II of Spain attempted to forestall Henry of Navarre’s accession
to the French throne and hoped to enthrone his daughter, the Infanta Isabella
Clara Eugenia, as the new queen of France. In 1593, however, Henry converted
to the Roman Catholic faith and thus paved the way for his coronation as King
Henry IV in 1594 and for his absolution by Pope Clement VIII on 17 September
1595.44 In 1596, the pontiff bestowed the task of establishing concord between
42
Grewe, International Law, p. 154; Bennassar, ‘Tordesillas’, p. 157.
43
Goldman, ‘Spain’, p. 430. For a study on the discussions of the right of states to
dominion over discovered lands in the seventeenth century, see David Boucher, ‘The Law of
Nations and the Doctrine of Terra Nullius’, in Olaf Asbach and Peter Schröder (eds), War, the
State and International Law in Seventeenth-Century Europe (Farnham, 2010), pp. 63–82.
44
Miles Pattenden, ‘The Conclaves of 1590–1592: An Electoral Crisis of the Early
Modern Papacy?’, Sixteenth Century Journal, 44/2 (2013): pp. 391–410 (p. 400); Jean-
François Labourdette, ‘L’importance du Traité de Vervins’, in Jean-François Labourdette,
Jean-Pierre Poussou and Marie-Catherine Vignal (eds), Le Traité de Vervins (Paris, 2000),
Spain and France on Alexander de’ Medici, the Cardinal of Florence and later
Pope Leo XI.45 To assist the legate, Clement VIII also sent Bonaventura Secusi
da Caltagirone, the minister general of the Order of the Friars Minor, as an
informal agent to the courts in Spain, France and the Habsburg Netherlands.46
The papal instruction for the Legate de’ Medici did not prescribe how he
should proceed during the peace talks; such detailed instructions would have
been premature since de’ Medici first had to glean whether the French king was
willing to negotiate a peace or a truce at all.47 The Cardinal of Florence, however,
had a clear idea of his role as a peacemaker. In February 1598, the cardinal-legate
opened the peace talks in Vervins. Present were the French delegates and the
deputies of Cardinal-Archduke Albert, the Governor General of the Habsburg
Netherlands, who negotiated peace in the name of Philip II.48 According to the
secretary of de’ Medici’s legation, the cardinal-legate clarified in his opening
speech that ‘he did not intend to preside over this congregation either as judge
[giudice] or as arbiter [arbitrio] but as mediator [mediatore] between both sides
in order to unite them in love and good understanding’.49 The Spanish party
beseeched the legate ‘to order and command as a judge and arbiter [et come
pp. 15–26 (p. 25). For the papal absolution of Henry IV, see Maria Teresa Fattori, Clemente
VIII e il Sacro Collegio, 1592–1605 (Stuttgart, 2004), pp. 20–82.
45
For a study on de’ Medici’s legation, see Bernard Barbiche, ‘Le grand artisan du traité
de Vervins: Alexandre de Médicis, cardinal de Florence, légat a latere’, in Claudine Vidal and
Frédérique Pilleboue (eds), La Paix de Vervins, 1598 ([Laon], 1998), pp. 65–72.
46
For Caltagirone’s role, see Arthur Erwin Imhof, Der Friede von Vervins, 1598 (Aarau,
1966), pp. 96–134.
47
Instruction for Cardinal de’ Medici, 10 May 1596, in Klaus Jaitner (ed.), Die
Hauptinstruktionen Clemens’ VIII. für die Nuntien und Legaten an den europäischen
Fürstenhöfen, 1592–1605, 2 vols (Tübingen, 1984), vol. 2, pp. 450–69 (pp. 463–6). See
also: Bernard Barbiche, ‘Les instructions de deux papes florentins aux légats et aux nonces:
des témoignages privilégiés sur l’évolution de la diplomatie pontificale du traité de Vervins à
la paix de Westphalie’, in Christoph Kampmann et al. (eds), L’art de la paix: Kongresswesen
und Friedensstiftung im Zeitalter des Westfälischen Friedens (Münster, 2011), pp. 517–28
(pp. 518–19).
48
For studies on the peace of Vervins, see Agostino Borromeo, ‘Clément VIII, la
diplomatie pontificale et la paix de Vervins’, in Jean-François Labourdette, Jean-Pierre
Poussou and Marie-Catherine Vignal (eds), Le Traité de Vervins (Paris, 2000), pp. 323–44;
Bertrand Haan, ‘La dernière paix catholique européenne: édition et présentation du traité de
Vervins (2 mai 1598)’, in Claudine Vidal and Frédérique Pilleboue (eds), La Paix de Vervins,
1598 ([Laon], 1998), pp. 9–63 (pp. 39–56); Imhof, Der Friede, passim. Still important is the
work by Armand Louant, ‘L’intervention de Clément VIII dans le traité de Vervins’, Bulletin
de l’Institut historique belge de Rome, 12 (1932): pp. 127–86.
49
Attilio Amalteo, ‘Negotiato de la pace fra li re Christianissimo et catolico, conclusa
l’anno 1598 a dì 2 di maggio, col mezo de l’Illustrissimo signor Cardinale di Fiorenza’,
transcribed in Louant, ‘L’intervention’, pp. 152–86 (p. 173).
giudice et come arbitrio]’50 but the Cardinal of Florence refused to accept such
a task: ‘he did not want to embark on these great offers and restrained himself
to wanting to act as a mediator [mediatore] only’.51 The cardinal-legate himself
related to Rome that he had offered to act as ‘intermediary’ (mezzano) and as a
‘common instrument’ (instrumento commune) ‘since His Holiness is the padre
comune of the two crowns’ and that both parties had accepted him ‘not only
as intermediary but as arbiter and judge’.52 This exchange between the Spanish
delegates and the legate addresses important aspects of their understanding of
the role of the papal peacemaker.
The cardinal’s refusal to assume the role of a ‘judge’ shows that he did not
wish to appear to intervene between the parties as the representative of the
pontifex maximus as the supreme judge of the world. By grouping ‘arbiter’
together with ‘judge’, in contrast to ‘mediator’, the legate clearly declined to take
any legally binding decision: evidently, de’ Medici was not willing to settle the
conflict by umpirage but by means of mediation only. The Spanish party, on
the other hand, certainly did not mean to concede any jurisdictional power to
the cardinal-legate in the role of a ‘judge’. The words of the Spanish envoys were
a pronounced ceding of authority to de’ Medici but most probably they were
simply a demonstration of respect and obedience to the legate and the pope. The
Spanish side might simply have repeated the words which the legate had chosen
to use or, at the most, Cardinal de’ Medici and the Spanish party used ‘judge’ and
‘arbiter’ interchangeably for a peacemaker who had the non-jurisdictional but
decision-making power of an ‘arbitrator’ as defined in this chapter. The French
envoys possibly deemed all of this an exchange of courtesies or a formality of
no consequence: they omitted this part of the talks in a long and detailed letter
about the first session of the peace negotiations.53 The categories of peacemakers
highlight not only the authority of conciliators but also how they performed
their task.
50
Ibid., p. 174. See also: Archives Générales du Royaume de Belgique, Papiers d’État
et de l’Audience (henceforth AGR, PEA), 429, fol. 33 (the deputies to Cardinal-Archduke
Albert, 10 February 1598).
51
Biblioteca Apostolica Vaticana, Barberiniani Latini (henceforth BAV, Barb. Lat.,
5211, fols 95r–152v: ‘Relatione del trattato di pace fatto nell’ Assemblea tra li deputati del Rè
Christ(ianissi)mo et del Rè Catt(oli)co in presenza del Cardinale di Firenze Legato de Latere
di Clemente Ottavo sommo Pontefice … ’ (fol. 97r). The legate’s refusal is not mentioned in
Amalteo, ‘Negotiato de la pace’, p. 174.
52
Archivio Segreto Vaticano (henceforth ASV), Segreteria di Stato, Francia, 46, fol.
163r (Medici to Aldobrandini, 10 February 1598) / Archives Nationales de France, 129 Mi
46 (microfilm).
53
Bibliothèque nationale de France, Mss. Français, 18066, fols 40v–55r (Bellièvre and
Sillery to Henry IV, 11 February 1598). This volume is available online on gallica.bnf.fr.
During the peace negotiations, the cardinal-legate proceeded as an active

‘mediator’ rather than a strictly neutral ‘go-between’ who simply passes on
proposals from one party to the other. The legate’s intervention during the
negotiations ranged from presenting proposals at the request of a party
to introducing his own solutions, particularly in important formalities of
precedence and proceeding. The cardinal-legate also exerted influence on both
sides by soothing, exhorting, admonishing and even threatening.54 That de’
Medici would resort to such decisive intervention was not apparent from the
beginning of the peace talks.
Prior to the opening of the peace negotiations, the legate met with the
deputies of Cardinal-Archduke Albert and told them that he intended to act
‘as mediator on behalf of the pope, his lord, in order to act as a link between the
deputies’. The cardinal’s intention was to stress his neutrality as ‘sole servant of
the pope’ and to reassure the Spanish party that they could ‘trust him, without
deeming him partial, which he was not’. Paradoxically, in his attempt to gain
the trust of the delegates, de’ Medici then contradicted himself: the ‘neutral’
and ‘sole servant of the pope’ added that ‘he was a particularly strong servant’
of Cardinal-Archduke Albert and that he would ‘show this whenever possible’.55
The insistence of the Cardinal of Florence on his neutrality, and even on
his inclination towards Cardinal-Archduke Albert, probably was an attempt to
dispel doubts on the Spanish side over his impartiality: after all, de’ Medici had
been ‘one of the warmest partisans of France’ in the negotiations which led to
the absolution of Henry IV by Clement VIII in 1595.56 De’ Medici’s friendly
dispositions towards Henry IV had certainly induced the King of France to
accept him as a peacemaker; Spain, on the other hand, at the brink of military
exhaustion and in need of peace, was not really in a position to disapprove of
the pontiff ’s decision on the Cardinal of Florence.57 Although the Spanish were
not always convinced of the legate’s neutrality, the negotiations in Vervins still
ended in the conclusion of peace between France and Spain on 2 May 1598.
This would not have been possible without the numerous peace missions of the
minister general of the Friars Minor, Caltagirone, to the courts of Henry IV and
Cardinal-Archduke Albert.58 Spain may have accepted the compromise achieved
under papal mediation in Vervins but five years later, the Spanish Council of
State still referred to the ‘disadvantageous articles’ in the Peace of Vervins; the
54
For example, BAV, Barb. Lat., 5211, fols 97r–98v, 116v, 118v, 129v–130r, 138r,
148r–v or 149v–150r.
55
AGR, PEA, 429, fol. 30 (the deputies to Cardinal-Archduke Albert, 10 February 1598).
56
Louant, ‘L’intervention’, p. 130.
57
Ibid.
58
Imhof, Der Friede, pp. 96, 163–5.
Council deemed that the peace was ‘concluded with so much inequality’ because
Spain had showed too much desire for peace with France.59
In the light of potential Spanish accusations of the legate’s partiality,
de’ Medici’s refusal to take any decision as an ‘arbitrator’ was certainly wise:
while in a mediation both parties remained free to accept or reject a proposed
compromise, a theoretically legally binding decision by the Cardinal of Florence,
followed by accusations of partiality, would have endangered the peace treaty
as well as the reputation of the cardinal-legate and, consequently, of the pope
himself. Cardinal de’ Medici’s firm refusal to take any decision also indicates
that he regarded the authority to decide as a double-edged sword. The trust
and authority which a peacemaker in the position of an ‘arbitrator’ enjoyed was
certainly a great privilege; however, it was a heavy burden too. Exactly such a
great honour and heavy burden was imposed on Pope Clement VIII in the peace
treaty of Vervins.
The Pope as Reluctant ‘Arbitrator’: Clement VIII and the Marquisate

of Saluzzo
Article 26 of the Treaty of Vervins stipulated that all differences between

Henry IV and Spain’s ally, Duke Charles Emmanuel I of Savoy, were to be
subjected ‘to the judgment of our Holy Father Pope Clement VIII’. The pontiff
had to decide over these differences within one year and both parties had to
adhere to the pope’s ruling unconditionally.60 One of the major obstacles which
de’ Medici had to overcome at Vervins was the strife between Henry IV and Duke
Charles Emmanuel I over the marquisate of Saluzzo.61 In 1548, the last marquess
of Saluzzo bequeathed his marquisate to France but since the beginning of his
reign, Charles Emmanuel I had been hoping to integrate Saluzzo within his
territory:62 lordship over this marquisate signified controlling important alpine
passages between modern-day France and Italy. For centuries, the marquesses
of Saluzzo had apparently recognized both the kings of France and the dukes
of Savoy as their liege lords. Consequently Henry IV and Charles Emmanuel I
insisted on their rights to the geo-strategically pivotal marquisate.63 For a full
month – a third of the entire peace negotiations in Vervins – the Sabaudian
59
Archivo General de Simancas (henceforth AGS), Estado, 840, fols 212 (Consulta,
11 May 1603) and 213 (Consulta, 31 May 1603) respectively.
60
Treaty of Vervins, Article 26. Edited in Haan, ‘La dernière paix’, p. 24.
61
See Imhof, Der Friede, pp. 201–218; Haan, ‘La dernière paix’, pp. 49–51, 57–61.
62
Haan, ‘La dernière paix’, p. 50.
63
Bertrand Haan, ‘La médiation pontificale entre la France et la Savoie de la paix de
Vervins à la paix de Lyon (1598–1601)’, Cahiers René de Lucinge, 34 (2000): pp. 5–20 (pp. 6
and 8).
and the French side argued over this point. In the end, they agreed to submit
their case to the judgment of Clement VIII.64 The pope, however, accepted this
charge to act as an ‘arbitrator’ only ‘à contre-coeur’.65
Clement VIII was a former auditor (judge) of the Tribunal of the Rota,
the supreme court of the universal church in ecclesiastical affairs as well as of
the Papal States in civil matters. According to the pope’s nephew, Cardinal
Pietro Aldobrandini, Clement VIII ‘used to say’, based on his experience as
auditor, ‘that [judicial] settlements were the origins [literally: fathers] of
quarrels’.66 Clement VIII’s joy over the conclusion of the Peace of Vervins,
Aldobrandini continued, was therefore hampered by the fact that the papal
legate, Cardinal de’ Medici, had not tried harder to solve the differences over the
marquisate of Saluzzo. The pope feared that Henry IV, Charles Emmanuel I or,
at worst, both princes would emerge dissatisfied with the pontiff. In that case,
Clement VIII would be blamed if the two princes had recourse to arms again
in the future.67 Pronouncing a judgment also implied that Clement VIII had to
decide in favour of one or the other prince and thus endangered the pope’s claim
to neutrality as the padre comune, the common father of all Catholic princes.68
As a consequence, the pontiff tried to avoid having to act as an ‘arbitrator’.
In 1599, Clement VIII named the aforementioned Bonaventura Secusi da
Caltagirone nuncio extraordinary and charged him to make Henry IV and
Charles Emmanuel I find an agreement.69 The pope hoped to reconcile the two
princes as a neutral ‘mediator’; at the same time, this ‘neutral’ papal peacemaker
also aimed at defending his interests as a temporal ruler.
As an Italian prince, Clement VIII had an active interest in not allowing
the French to re-establish themselves on the Italian peninsula.70 The Spanish
ambassador in Rome believed that Clement VIII wished that the Duke of
Savoy would retain the marquisate in order to keep war and heresy out of Italy.
Clement VIII, according to the ambassador, delayed taking a decision in the
hope that he could make the two rulers agree on a compromise favourable to
Savoy.71 In an attempt to resolve his strife with the French king, the Duke of
64
BAV, Barb. Lat., 5211, fols 120v–145v. See also Haan, ‘La médiation pontificale’, p. 7.
Haan, ‘La médiation pontificale’, p. 7.
65
66
Pietro Aldobrandini, ‘Legatione in Francia del cardinal Pietro Aldobrandino’, in
Luigi Fumi (ed.), La legazione in Francia del cardinale Pietro Aldobrandini narrata da lui
medesimo (Città di Castello, 1903), pp. 3–133 (p. 6).
67
Ibid.
68
Haan, ‘La médiation pontificale’, pp. 7–8; Imhof, Der Friede, p. 217.
69
Bertrand Haan, ‘Le Traité de Paris (27 Février 1600): un traité pour rien?’, Cahiers
René de Lucinge, 33 (1999): pp. 41–52 (p. 43).
70
Imhof, Der Friede, p. 212.
71
AGS, Estado, 971, no fol. (Sessa to Philip III, 3 June 1599).
Savoy went to Paris in December 1599.72 With the assistance of Secusi, the two
sovereigns reached an agreement which they signed on 27 February 1600.73 The
Treaty of Paris bound Charles Emmanuel I to choose between two options
within three months: either he rendered the marquisate of Saluzzo to France
or he ceded other significant territories to Henry IV in recompense for the
marquisate. Yet, the first option did not truly resolve the quarrel: if the duke
opted for rendering the marquisate to the French king, the pope still would have
to take a final decision over the possession of Saluzzo within three years. Once
back in his duchy, however, Charles Emmanuel I refused to adhere to the peace
treaty, which he claimed to have signed under constraint. Consequently, the
King of France declared war on the duke on 11 August 1600.74
After the renewal of war between France and Savoy, the pope sought ‘to impose
a pontifical reconciliation on the belligerents’.75 Instead of taking a decision in
favour of Charles Emmanuel I, the pontiff intended to make the two sovereigns
agree on a compromise which kept the French out of Italy. Clement VIII feared
that if he pronounced a judgment ‘the door for continuous perturbations and
occasions for further disgust would remain open’. In order ‘to chop off the
head of this hydra’, a stable peace had to be established. This peace should be
achieved by means of recompense: the duke should receive the marquisate of
Saluzzo and, in return, he should cede Sabaudian territories such as Bresse, Gex
and the Valley of Barcelonnette – all situated north of the Alps – to Henry IV.76
Therefore, although Clement VIII refused to act as ‘arbitrator’ in order to avoid
having to declare for one of the two sides, he still aimed at defending his interests
as an Italian prince in his role as a ‘mediator’. As peacemaker the pontiff chose
none other than his closest adviser, the Cardinal-Nephew Pietro Aldobrandini.
Two of Aldobrandini’s letters underline the pope’s deep aversion towards
pronouncing a judgment. In Turin, on 30 October 1600, the Cardinal-
Nephew Aldobrandini reassured his uncle that he would take all precautions
to re-establish peace in a way which would ‘remove from Your Holiness the
Duke Charles Emmanuel I’s decision to negotiate a peace with the King of France
72
should be seen within the context of the duke’s claim to royal rank. See: Stéphane Gal and
Preston Perluss, ‘Charles Emanuel I’s Foreign Policy: The Duke of Savoy’s French Voyage’,
in Matthew Vester (ed.), Sabaudian Studies: Political Culture, Dynasty, and Territory,
1400–1700 (Kirksville, 2013), pp. 127–50 (pp. 144–6).
73
For the role of Secusi in these peace talks, see Haan, ‘Le Traité de Paris’, pp. 45–8.
74
Ibid., pp. 48–50.
75
Ibid., p. 13.
76
Instruction for Erminio Valenti, 17 September 1600, in Jaitner (ed.), Die
Hauptinstruktionen, vol. 2, pp. 641–51 (pp. 643–4). See also Haan, ‘La médiation pontificale’,
p. 15.
nuisance of having to judge and the peril to cause displeasure’.77 In February 1601,
Aldobrandini again stressed that during the entire peace negotiations he had
ensured that the parties had not referred any matter of dispute to the pope since
a ‘sentence or decision by Your Holiness could cause You annoyance or put You
into distress’.78 Evidently, the cardinal-nephew knew that Clement VIII intended
to evade pronouncing a verdict at all cost. In order to comply with his uncle’s
will, Aldobrandini had to proceed with resolution at the peace negotiations
in Lyons.79
During the peace talks Cardinal Aldobrandini introduced proposals for
the settlement of the conflict and resolved ‘certain points of detail on his own
initiative’.80 The cardinal-nephew even convinced the Sabaudian representatives
to sign the articles of peace against the explicit orders of Charles Emmanuel I.
Consequently, the duke refused to ratify the peace treaty and Cardinal
Aldobrandini’s success as a peacemaker threatened to result in a failure, with
damaging consequences to the reputation of the Holy See. Urged by the cardinal-
nephew, Philip III of Spain insisted on the ratification of the Treaty of Lyons,
and Charles Emmanuel I was left with no other option than ratifying the peace
treaty: without the support of Spain, the duke stood no chance against France.
For Cardinal Aldobrandini, whose diplomatic skills and daring proceeding as
a very resolute ‘mediator’ led both to a compromise and yet nearly to further
conflict, the peace legation was a success in the end. The cardinal-nephew
re-established peace in Catholic Christendom and defended the interest of the
papacy as an Italian power: he relegated the French to the north of the Alps and
thus outside of the Italian peninsula with exception to one single fortified place,
Casteldelfino.81 In the mid-seventeenth century, the papacy, still struggling to
balance its varying duties and interests, continued to assume contrasting roles of
authority in matters of peacemaking.
77
ASV, Fondo Borghese, serie II, 481, fol. 48r (Aldobrandini to Clement VIII,
30 October 1600).
78
Ibid., fol. 54r (Aldobrandini to Clement VIII, 26 February 1601).
79
For a good study of Cardinal Aldobrandini’s legation, see Haan, ‘La médiation
pontificale’, passim. For a detailed account of the full legation, see Pierre Richard, ‘La légation
Aldobrandini et le traité de Lyon (septembre 1600–mars 1601): la diplomatie pontificale,
ses agents au temps de Clément VIII’, Revue d’Histoire et de Littérature religieuses, 7 (1902):
pp. 481–509, 8 (1903): pp. 25–48 and 133–51. For an edition of Cardinal Aldobrandini’s
own account of his legation, see Aldobrandini, ‘Legatione in Francia’.
80
Haan, ‘La Médiation pontificale’, p. 16.
81
Ibid., pp. 15–18.
‘Mediator’ and ‘Judge’: The Papacy and the Peace of Westphalia
In 1648, the Treaties of Osnabrück and Münster, commonly referred to as

the Peace of Westphalia, concluded the Thirty Years War in the Holy Roman
Empire.82 The papacy refused to negotiate peace between Catholic and Protestant
powers and thus only intervened in the peace talks between the Catholic powers
Spain, the Holy Roman Empire and France in Münster. While the negotiations
ended the Franco-Imperial conflict, Spain remained at war with France until the
signing of the Treaty of the Pyrenees in 1659.83
Throughout his reign, Pope Urban VIII was generally considered partial
towards France but the instruction for the papal envoy in Münster, Nuncio
Fabio Chigi (the later Pope Alexander VII), stressed the pontiff ’s ‘paternal
indifference’ towards all Catholic princes.84 The instruction therefore forbade
the nuncio to assume any arbitral duty nor to burden the pope, ‘who does not
want to leave the position of the padre commune’, with such an office. Chigi had
to avoid ‘becoming a mediator-judge [mediatore giudice]’ in political matters.
The nuncio was also not allowed to solve any conflict by presenting his own
propositions. He had to ensure that the conflicting parties procured their own
proposals. According to the papal instruction, disputants regarded presenting
proposals for a compromise as a sign of weakness. Thus the instruction left
Chigi the option that the parties could bring their propositions to the nuncio
as the ‘mediatore’ so that he then could communicate them to the other side
simultaneously.85 The papal instruction thus reduced the nuncio’s role as a peace-
broker to acting as a mere go-between who kept the peace negotiations going
and, at the most, presented the proposals of one party to the other.86 The ‘official’
82
For recent studies on the Peace of Westphalia, see Olaf Asbach and Peter Schröder
(eds), The Ashgate Research Companion to the Thirty Years’ War (Farnham, 2014). In
particular, see in this collection Guido Braun, ‘The Papacy’, pp. 101–114.
83
Alexander Koller, Imperator und Pontifex: Forschungen zum Verhältnis von Kaiserhof
und römischer Kurie im Zeitalter der Konfessionalisierung, 1555–1648 (Münster, 2012), p. 197.
84
Ulrich Köchli, ‘Die Krise nach dem Papsttod: Die Barberini zwischen Rom und
Frankreich, 1644–1654’, in Daniel Büchel and Volker Reinhardt (eds), Modell Rom? Der
Kirchenstaat und Italien in der Frühen Neuzeit (Cologne, 2003), pp. 62–80 (p. 65). The
instruction is edited in Konrad Repgen, ‘Fabio Chigis Instruktion für den Westfälischen
Friedenskongreß: Ein Beitrag zum kurialen Instruktionswesen im Dreißigjährigen Krieg’,
Römische Quartalsschrift für christliche Altertumskunde und Kirchengeschichte, 48 (1953):
pp. 79–116. Reprint in Repgen, Dreißigjähriger Krieg, pp. 458–86 (pp. 476–86). The text
was based on the instructions of Pope Urban VIII for the Cardinal-Legates Marzio Ginetti
and Carlo Rossetti in 1636 and 1643 respectively. Repgen, ‘Friedensvermittlung und
Friedensvermittler’, pp. 711, 713–14.
85
Repgen, ‘Fabio Chigis Instruktion’, pp. 479–80.
86
See also Repgen, ‘Friedensvermittlung als Element’, p. 810.
role described in the papal instruction is, of course, prescriptive and thus tells us
more about the papacy’s interpretation of its role as a peacemaking force than
about actual peacemaking practice.
Unlike de’ Medici in Vervins, Chigi did not preside over the peace
negotiations in the presence of all conflicting parties in Münster. Rather, at his
lodging, Chigi received one party who brought their peace conditions to the
nuncio. Chigi then brought these proposals over to the residence of the other
party and discussed them there. After some time for consideration, this second
party visited the nuncio and, in turn, conveyed their reply or conditions which
Chigi then again forwarded to the first party.87 As tedious as this procedure
clearly was, because Chigi discussed the proposals of one party with the other, it
also allowed him to exert a degree of influence which contradicted his ‘official’
role as it was outlined in the papal instruction. Guido Braun’s case study of the
Franco-Spanish conflict over the two fortresses Piombino and Porto Longone
clearly elucidated this contradiction.
In April 1647, the Spanish delegates asked the Venetian mediator Alvise
Contarini and the papal nuncio to decide over the possession of two fortresses,
Piombino in Tuscany and Porto Longone on Elba, that the French had
conquered the previous year.88 The nuncio disapproved of such a request and
pointed out that mediation was incompatible with the task of arbitrating.89
Earlier, however, despite his concerns for his position above party lines, Chigi
had tried to prevent the Spanish envoys from giving up Spain’s claim to the
two fortresses. At the same time, he had also endeavoured to convince the
French deputies not to insist on their claims to the fortresses. In doing so, the
nuncio had acted in accordance with orders from the papal secretariat of state:
the military build-up in the Spanish and French fortresses along the coast of
Tuscany forced Rome to increase military capacities in the nearby Papal States
in response. Moreover, the curia feared that, if Spain ceded the two fortresses
to France, further conflicts would follow, which, inevitably, would embroil
other Italian princes and the Holy See. In late January 1647, however, Rome
had instructed Chigi not to insist on anything regarding the cession of Porto
Longone and Piombino if the parties remained obstinate.90 The Holy See tried
to promote its particular interests in secret during the peace talks but, in the end,
subordinated them to the safeguarding of the papacy’s ‘prestigious position’ as
87
Chigi’s procedure is described in Koller, Imperator und Pontifex, p. 201.
88
Guido Braun, ‘Päpstliche Friedensvermittlung am Beispiel von Piombino und Porto
Longone’, QFIAB, 83 (2003): pp. 141–206 (p. 167).
89
Cited in Repgen, ‘Friedensvermittlung und Friedensvermittler’, p. 703: ‘la
incompatibilità della mediatione con l’offitio di arbitrare’.
90
Braun, ‘Päpstliche Friedensvermittlung’, pp. 169–70, 173–7.
a peacemaking padre comune.91 The papacy’s final attitude towards the Peace of
Westphalia highlights further the entanglement of conflicting interests which
resulted from the complex position of the pope as temporal prince, head of the
Church and padre comune.
Peace among Catholic rulers, the papacy hoped, would work in favour of
the Catholic religion.92 In the Peace of Westphalia, however, the Lutherans and
Calvinists obtained concessions which, according to the Holy See, conflicted
with canon law.93 Consequently, Chigi protested against the Peace of Westphalia
and Pope Innocent X issued the brief Zelo Domus Dei (1650, antedated to 1648).
This brief pointed out 14 ‘very grave legal prejudices’ which affected, among
others, the Catholic religion, the divine worship and the Holy See. In particular,
the brief listed 10 specific issues, such as the cession of Church property to
heretics, the liberty for heretics to practise their religion and the establishment
of an eighth imperial prince-elector without the consent of the Holy See. The
brief claimed to nullify all articles which affected Church matters and which had
been stipulated without the approval of the Holy See, including the articles that
aimed to preclude the validity of any protest against the Treaties of Münster and
Osnabrück. In the hope that the Catholic powers would gain the upper hand
again in Europe, the brief aimed at facilitating any prospective legal contempts
of the aforementioned agreements in the peace treaty.94 On one hand, following
the proclaimed papal ideal of establishing peace in Catholic Christendom for
the war against the ‘heretics’ and the Ottomans, Innocent X wished to act as
neutral padre comune and ‘mediator’ in conflicts between Catholic princes.95 On
the other hand, however, the Holy See deemed that the Peace of Westphalia
affected the interests of the Catholic cause negatively. Consequently, the pope,
condemning and nullifying parts of the peace treaty, also felt compelled to
assume the position of the supreme ‘judge’ of the world who had the authority
to overrule agreements between princes.
91
Guido Braun, ‘Innozenz X.: Der Papst als padre comune’, in Michael Matheus and
Lutz Klinkhammer (eds), Eigenbild im Konflikt: Krisensituationen des Papsttums zwischen
Gregor VII. und Benedikt XV. (Darmstadt, 2009), pp. 119–56 (p. 137).
92
Repgen, ‘Fabio Chigis Instruktion’, p. 481.
93
Braun, ‘Innozenz X.’, p. 131.
94
Konrad Repgen, ‘Die Proteste Chigis und der päpstliche Protest gegen den
Westfälischen Frieden (1648/50): Vier Kapitel über das Breve “Zelo Domus Dei”’, in
Dieter Schwab et al. (eds), Staat, Kirche, Wissenschaft in einer pluralistischen Gesellschaft:
Festschrift zum 65. Geburtstag von Paul Mikat (Berlin, 1989), pp. 623–47. Reprint in
Repgen, Dreißigjähriger Krieg, pp. 539–61 (pp. 542–5, p. 543 (footnotes 13 and 14)). For
a critical edition of the brief, see Michael F. Feldkamp, ‘Das Breve “Zelo domus Dei” vom
26. November 1648: Edition’, Archivum Historiae Pontificiae, 31 (1993): pp. 293–305.
95
Johannes Burkhardt, Abschied vom Religionskrieg: Der Siebenjährige Krieg und die
päpstliche Diplomatie (Tübingen, 1985), pp. 5–6.
Conclusion
Simon Roberts’s anthropological observations offer a useful starting point for

historical research on peacemakers and peacemaking. Roberts’s typology of
peacemakers, however, requires further specifications if a study is not mainly
concerned with the procedures of conciliators during a dispute settlement
but also with the nature of a pacifier’s position of authority. Conceptualizing
peacemakers as ‘judges’, ‘arbitrators’ and ‘mediators’ serves to analyse and
compare the authority and actions of conciliators. For example, these ‘types’
help to evaluate the political power and authority which rulers and governments
conceded to papal peace-brokers and how individual popes perceived their
authority, be it during a particular peace process or over a long period of time.
In the early modern period, factors such as the Reformation, the perennial
Franco-Spanish antagonism and the gradual ‘emergence of the sovereign state’
posed serious challenges to the religious and political authority of the popes
as supreme spiritual heads and peacemakers in Latin Christendom.96 In order
to retain some degree of political influence in European politics, early modern
popes tried to display an outward appearance of impartiality and to act as
peacemakers when they were not waging war themselves. In papal rhetoric, the
main objective of the papacy’s peace efforts was to unite all Catholic princes
in the one and only ‘just war’, the war against the enemies of the Church: the
‘infidels’ and the ‘heretics’.97 Early modern pontiffs often stressed the pope’s
role as padre comune, the common father of all Catholic princes, in order to
underline their officially neutral political position, which, in turn, sometimes
laid the grounds for papal peace missions.98 Popes, however, were also the heads
of the universal Church, of the Papal States and of their own family and thus
had to safeguard their particular interests on the Italian peninsula and beyond.
‘Types’ of peacemakers help to explore conciliators’ actions and the extent
of their authority, thus allowing us to detect potential clashes of interests as
well as to contrast intended and actual roles of pacifiers in a peace process. The
examples in this chapter have shown that popes like Clement VIII and Innocent X
endeavoured to avoid pronouncing a judgment as ‘arbitrators’ in order to retain
a neutral appearance as padri comuni but their officially neutral ‘mediators’
also tried to defend the interests of their lords as temporal rulers during peace
negotiations. Alexander VI did not hesitate to assert and exert his spiritual and
temporal jurisdiction over the world as a ‘judge’ upon the request of the Spanish
monarchs in the late fifteenth century; and Innocent X, nullifying articles of the
Peace of Westphalia, hoped to defend the interests of the Catholic Church as a
96
Lesaffer, ‘Peace Treaties from Lodi to Westphalia’, pp. 12–14, 42.
97
See also Tallon, ‘Les missions de paix’, pp. 174, 177, 179–80.
98
Burkhardt, Abschied, p. 370.
‘judge’ ex officio in the mid-seventeenth century. Inevitably, the considerations

of early modern popes for their various duties and interests affected how they
interpreted their role and authority as supreme peacemakers in a particular
crisis. The case studies in this chapter suggest that, in view of the challenges to
their religious and political authority, early modern popes tried to avoid the task
of taking any decision as peacemakers; the strict impartiality which individual
popes purported as pacifiers, however, was more an ideal than reality and,
assuming different roles during a specific conflict, early modern pontiffs did not
necessarily feel completely bound to one particular role as a peacemaker.
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Chapter 4
Mediation and Reconciliation
among Seventeenth-Century French
High Aristocrats
Christian Kühner
As recent studies have shown, the French nobility of the seventeenth century,
the so-called Grand Siècle, was a group in which ravaging, unregulated violence
was much more common than the historiography had hitherto acknowledged.1
The duel as a form of highly formalized violence seems to have been more a
literary image than a reality, or, in any case, only the tip of the iceberg, under
which lingered a practice of bloodshed which had little to do with the image of
the duel as a ‘civilized’ form of violence.2 Duels, moreover, were not in any case
inevitable. There were ways to mediate in conflicts. Apart from legal procedures,
there were also more informal ones.3 This was probably all the more important
as many duels did not arise from conflicts of interest over money, claims or titles,
1
Stuart Carroll, Blood and Violence in Early Modern France (Oxford, 2006),
pp. 15–17, shows that in early modern France, the duel was by no means separated from
blood feud and vendetta. Pascal Brioist, Pierre Serna and Hervé Drévillon, Croiser le fer:
violence et culture de l’épée dans la France moderne (XVIe–XVIIIe siècle) (Seyssel, 2002),
pp. 331–49, describes in detail the wounds inflicted on duellists, as they can be seen from the
archives of the records of the morgue of the Châtelet. They clearly indicate that the duellists
often fought with utter brutality; examples are given on p. 341. On violence in early modern
France see Michel Nassiet, La Violence, une histoire sociale: France, XVIe–XVIIIe siècles
(Seyssel, 2011).
2
Carroll, Blood and Violence, pp. 9–10. Among the rich scholarly literature about
the duel, the seminal study for early modern France is François Billacois, Le Duel dans la
société française des XVIe–XVIIIe siècles: essai de psychosociologie historique (Paris, 1986).
See moreover Victor Kiernan, The Duel in European History: Honour and the Reign of
the Aristocracy (Oxford, 1988); Ute Frevert, Ehrenmänner: Das Duell in der bürgerlichen
Gesellschaft (Munich, 1991); Markku Peltonen, The Duel in Early Modern England: Civility,
Politeness and Honour (Cambridge, 2003); Marco Cavina, Il sangue dell’onore: storia del
duello (Rome and Bari, 2005).
3
As Stuart Carroll, ‘The Peace in the Feud in Sixteenth- and Seventeenth-Century
France’, Past and Present, 178 (2003): pp. 74–115, here p. 76, rightly underscores, mediation
and judicial procedures could and did exist side-by-side in early modern France. On the long
but from situations that one party perceived as a personal offence – whether
the other party had actually intended this or not. In these sorts of conflicts,
there were only three possible solutions: forgiveness, fight or reconciliation.
The sources analysed here never show noblemen asking for forgiveness or
apologizing – probably not only because this would be humiliating in itself, but
also because it carried the risk of an even greater humiliation if the adversary
refused to forgive.4 On the other hand, we find aristocrats who forgave and thus
avoided conflicts. Those stories, however, often involve great nobles who had
conflicts with lesser ones. It is probable that magnates could forgive a nobleman
of lesser rank more easily, because the inferior perhaps would not have dared to
challenge his high-ranking adversary. A grand – that is, a prince, peer or duke –
would rather be credited of clementia than of cowardice if he abstained from
fighting a conflict with an inferior. It can be supposed that this solution was
hardly possible if the two adversaries were approximately of equal rank. Thus, in
most cases, noblemen only had the choice between fighting and being reconciled
by a third person. This, however, raises a number of questions: who could be a
mediator? How was reconciliation achieved? And was it really effective? These
are the questions this chapter proposes to address.
Recent literature on violence, duels and conflict in the French nobility of
the seventeenth century has concentrated on the middle and lower ranks of the
nobility. One of the key findings of this research was that the duel was much
more intimately connected to the traditional feud than previous research had
supposed; until recently, the feud between families and the duel between
individuals had been seen as two largely separate phenomena.5 The examples
analysed here, by contrast, are taken from the context of the higher and highest
levels of the aristocracy, from the world of the court. The seventeenth-century
court acted as a turntable of noble alliances: whereas noblemen had been,
in their home regions, part of networks of amity and enmity often spanning
generations, the court brought nobles from all over France into contact with
each other, multiplying their possibilities to make friends and enemies.6 While
traditional feuding was hardly possible at court and in the capital, under the eyes
of the king, court life brought new potential matters of conflict. The court was
tradition of priests as mediators see John Bossy, Peace in the Post-Reformation (Cambridge,
1998).
4
See also Tara Alberts’ chapter in this volume for examples of resistance to
reconciliation for fear of humiliation.
5
Carroll, ‘The Peace in the Feud’, p. 75. For a further discussion of the feud, see Marco
Cavarzere’s contribution to this volume, which illustrates the advantages of looking at the
interrelations of feud and law.
6
For patron–client networks in the provinces of early modern France, particularly in
Provence, see Sharon Kettering, Patrons, Brokers, and Clients in Seventeenth-Century France
(New York and Oxford, 1986).
Seventeenth-Century French High Aristocrats 107
the place where high political, administrative, military and ecclesiastical posts
were distributed; it was also the place where honours, like orders of chivalry,
were awarded. Considerable material resources, such as royal pensions, were
also at stake. Moreover, the court of the seventeenth century was still a centre of
government. Thus, while a lot could be at stake in conflicts between courtiers,
even those conflicts that were purely about personal matters of honour could
potentially have far-reaching consequences for the always delicate balance of
power at court.
The sources used here are memoirs and autobiographies of courtly nobles. As
informal procedures of mediation were by definition not written down – even
though there are also formal acts of mediation, which were fixed on paper –
they need to be reconstructed from narrative accounts. Of course, these were
often written by the very protagonists of the dispute; thus, the reader must be
aware of the possibility that the account of events may have been changed in the
narrator’s favour. However, as our goal is not to reconstruct whether the role of
specific protagonists in a specific conflict is shown accurately in the sources, but
rather to ask for characteristic aspects of the procedure itself, the combination
of several of these narrative accounts should at least give us a good impression.
Mediators
When the Grand Condé died in 1686, Bossuet, in his Oraison funèbre, credited
the late prince with having been a good mediator:
I have seen him, and do not believe that I am exaggerating here, I have seen him
intensely moved by the perils of his friends; I have seen him, simple and natural,
change his facial expression upon hearing of their misfortunes, to enter with
them into the smallest things just like into the most important ones; during
the mediations calm the embittered spirits with a patience and a softness that
one would never have expected from such a vivid temper nor from such an
elevated rank.7
7
‘Je l’ai vu, et ne croyez pas que j’use ici d’exagération, je l’ai vu vivement ému des
périls de ses amis; je l’ai vu, simple et naturel, changer de visage au récit de leurs infortunes,
entrer avec eux dans les moindres choses comme dans les plus importantes; dans les
accommodements calmer des esprits aigris avec une patience et une douceur qu’on n’aurait
jamais attendue d’une humeur si vive ni d’une si haute élévation.’ Jacques-Bénigne Bossuet,
‘Oraison funèbre du prince de Condé’, in Jacques-Bénigne Bossuet, Oraisons funèbres, ed.
Jacques Truchet (Paris, 1988), pp. 352–410 (pp. 383–4). The prince in question is Louis II
de Bourbon, Prince de Condé (1621–86).
As First Prince of the Blood, Condé carried great authority; this made him
a person particularly fit to act as a mediator. In fact, it seems that an ideal
mediator in the world of the courtly aristocracy should, on the one hand, have
good relations to both of the adversaries and, on the other hand, be at least of
equal rank to both of them. As Stuart Carroll notes, brokering peace between
the king’s most high-ranking subjects had been the duty of the Constable, the
highest military officer in France, but this office had been abolished under
Richelieu in 1627.8 It seems that noblemen could understand a proposal that
they should be reconciled by a social inferior as a provocation. Once again,
we find an example in a story involving the prince of Condé, though we have
only the account of his adversary, the count of Coligny-Saligny, who relates the
episode in his memoirs.9 However, for our purpose, we can use such a source,
though it expresses open antipathy towards one of the main characters: what is
of interest here is the characteristics of conflict and reconciliation between high
noblemen. The conflict between Coligny-Saligny and the prince had escalated
in several steps. Coligny-Saligny had been a devout follower of Condé, one of
the few who had followed him into exile after the end of the Fronde. Condé and
his remaining followers continued to fight against the government of Cardinal
Mazarin as allies of the Spaniards. However, after Condé and his followers had
returned to France after the Peace of the Pyrenees, Condé and Coligny-Saligny
had had an argument: Condé had recommended his favourite, the count of
Guitaut, instead of Coligny-Saligny, for the promotion of 1661 of the chevaliers
du Saint-Esprit.10 When the king offered Coligny-Saligny the opportunity to
pass from Condé’s service into his own, Coligny-Saligny accepted. If we believe
Coligny-Saligny, he could not quit Condé’s service without making the prince
angry; he describes how, in the following days, they argued openly at court.
When the Spanish sent Condé money to cover the expenses he had accumulated
as their ally during the war, Coligny-Saligny claimed that 15,000 écus of this
money should be paid to him for serving Condé. The prince, however, refused,
claiming that the money was intended for his friends, to whom Coligny-Saligny
did not belong.11 The conflict lingered on; Coligny-Saligny said that he would
kill Condé, should he insult him. He claimed that Condé had fabricated a lie out
of this, telling the cabinet minister Le Tellier that Coligny-Saligny was planning
to kill him.12 Le Tellier talked to Coligny-Saligny and urged him to give a
8
Carroll, ‘The Peace in the Feud’, p. 98.
9
Jean de Coligny-Saligny (1617–1686), author of Mémoires du comte de Coligny-
Saligny, ed. Louis Jean Nicolas de Monmerqué (Paris, 1841).
10
Louis Jean Nicolas de Monmerqué, Introduction to Coligny-Saligny, Mémoires,
p. xxi. The Order of the Holy Spirit was one of the most exclusive orders of chivalry of Ancien
Régime France.
11
Coligny-Saligny, Mémoires, p. 71.
12
Ibid., pp. 75–6.
written declaration about his intentions. The count complied and, according to
his memoirs, explained in this declaration
that if M. le Prince would put himself in a situation to cause me some extraordinary

offence, which a man of my birth and of my temper must not suffer, or could not
live happily after having suffered it, I would inevitably kill him; that I knew well
that it would cost my life as well, because there was no example of a man who had
killed a prince of the blood with impunity, but that I would rather die than have
suffered an offence that would put a stain on my honour.13
This declaration clearly shows one of the sources of ravaging noble violence:
noble norms obliged noblemen – at least in theory – to prefer physical death
in a duel to the dishonour of suffering an offence, which might even have
consequences that could be called a social death. Louis XIV read Coligny-
Saligny’s text and judged that Condé only had to leave Coligny-Saligny alone
in order to prevent a conflict between them. However, the king was not content
with this fragile peace, and wanted the two of them to reconcile. He proposed
that the maréchal de Gramont should act as a mediator; Coligny-Saligny reports
the king discussing the matter with Le Tellier:
The King then said to M. Le Tellier: ‘This is an affair that embarrasses me, I want
to do justice to my cousin, but I do not want to do injustice to anybody, I would
be pleased if you would find a way to end and to conciliate this affair, you must
propose this to M. le Prince as if it came from you; for example, the marshal of
Gramont is a close friend of M. le Prince, he also likes Coligny, as he sometimes
mentioned that to me, he will make Coligny do what he owes to the rank and
the person of M. le Prince; but M. le Prince must also do justice to Coligny
concerning the money that he quite unfairly withholds from him, because is it
not true that he has served him very well?’14
13
‘que si M. le Prince se mettoit en estat de me faire quelque affront insigne, qu’un
homme de ma naissance et de mon humeur ne dût pas souffrir, ou ne pût pas vivre content
après l’avoir souffert, je le tuerois infailliblement; que je sçavois bien qu’il m’en coûteroit
aussi la vie, parce qu’il n’avoit point d’exemple qu’un homme eût tué un prince du sang
impunément, mais que j’aimerais mieux mourir, que d’avoir souffert un affront qui portât
une tâche sur mon honneur.’ Ibid., p. 79.
14
‘Le Roy dit ensuite à M. Le Tellier: “Voilà une affaire qui m’embarrasse, je veux
rendre justice à mon cousin, mais je ne veux point faire d’injustice à personne, vous me ferez
plaisir de trouver quelque moyen de finir et d’accommoder ceste affaire, il faut proposer cela
à M. le Prince comme venant de vous; par exemple, le maréchal de Gramont est fort amy de
M. le Prince, il aime aussi Coligny, car il m’en a quelquefois parlé, il fera que ledit Coligny
entrera dans ce qu’il doit à la qualité et à la personne de M. le Prince; mais il faut aussi que
Le Tellier went to see Condé and proposed to him that Gramont should
accommodate this conflict.15 This proposal, however, did not find Condé’s
approval; Coligny-Saligny credits the prince with giving a harsh answer to
Le Tellier, telling him that he was not of the rank that he should be reconciled
with Coligny-Saligny by a marshal of France.16 Gramont was a good friend of
Condé’s; but of course, a maréchal de France was lower in rank than a prince
du sang. One can suspect that Condé, in fact, wanted the king himself to
mediate. From a perspective of rank, this would make sense: as Condé was the
highest nobleman outside the royal family itself, only the king and his immediate
relatives were of higher rank than him. Naming anybody else as mediator would
have meant that Condé would have to a take part in a reconciliation presided
over by an inferior. At the end, the conflict remained unresolved, with Coligny-
Saligny and Condé insisting upon their respective positions.
A raccommodement enacted by Gaston d’Orléans, the paternal uncle of
the young Louis XIV, in June 1649 also points to the fact that high-ranking
persons were particularly fit to be mediators. Gaston’s daughter, the Grande
Mademoiselle, tells how the duke of Beaufort and a certain Jarzé picked a quarrel
because ‘M. de Jarzé had said some things about M. de Beaufort which displeased
him, so that he threatened him’.17 Jarzé was not frightened; he told Beaufort ‘that
he didn’t fear him at all and that he would dispute him the priority of rank, even
in the Tuileries’.18 What follows is an example of the unexpected turns conflicts
between nobles could take: Beaufort does not challenge Jarzé to a duel, but
shows up while Jarzé is dining with some friends:
After which M. de Beaufort went to Renard, where Jarzé was having dinner with
MM. de Candale, Le Fretoy, Fontrailles, Ravigny, and the commanders de Jars
and de Souvré and some others whom I don’t remember. He took the edge of the
M. le Prince fasse raison à Coligny de l’argent qu’il luy retient assez vilainement, car n’est-il
pas vray qu’il l’a fort bien servy?”’ Ibid., p. 80.
15
As Carroll, ‘The Peace in the Feud’, p. 95, notes, it was a duty of the marshals of
France to mediate in disputes between nobles.
16
Coligny-Saligny, Mémoires, pp. 81–2.
17
‘M. de Jarzé avait fait quelques discours de M. de Beaufort qui lui avaient déplu, de
sorte qu’il le menaça’. La Grande Mademoiselle, Mémoires, ed. Bernard Quilliet (Paris, 2005),
p. 80. At that time, the title of the duke of Beaufort was held by César de Bourbon, duc de
Vendôme, First Duke of Beaufort (1594–1665). However, the hint that M. de Beaufort was
extremely popular in Paris at the time could be a hint that the Grande Mademoiselle actually
means François de Bourbon-Vendôme, Second Duke of Beaufort (1616–1669), dubbed Le
Roi des Halles. Jarzé is most probably René du Plessis de Jarzé.
18
‘qu’il ne le craignait point et qu’il lui disputerait le haut du pavé, même dans les
Tuileries’. La Grande Mademoiselle, Mémoires, p. 80.
tablecloth and threw everything on the floor, overthrowing the table. They seized
their swords; there was a great tumult, and nobody killed nor injured.19
The Grande Mademoiselle notes that after this brawl, the parties agreed to meet
outside Paris, for Beaufort’s adversaries claimed that he was so popular in Paris
that challenging him there would expose them to assault even by the fishwives.
However, Gaston d’Orléans intervened and settled the conflict: ‘A few days later,
Monsieur …summoned M. de Beaufort and his friends, and brought the others
and reconciled them.’20 The word manda, ‘he summoned’, seems to indicate
that at least Beaufort did not himself appeal to Gaston’s authority – as to Jarzé’s
party, the text is ambiguous. In fact, the more high-ranking the mediator was,
the easier it must have been for him not only to settle disputes between parties
who appealed to him or her, but also to impose a settlement in conflicts between
adversaries who would have been willing or even eager to fight.
Two Forms of Raccommodement
In seventeenth-century French texts, mediation is called ‘accommodement’ or

‘raccommodement’, with the two terms being used synonymously. However, the
cases of raccommodement we find in the sources show different characteristics.
I suggest that there is a difference between raccommodements of persons who
had been linked by bonds of sympathy before the conflict and raccommodements
between people who had not been friends, but were strangers or enemies who
were at loggerheads with each other. In other words, the raccommodement could
have the purpose of avoiding violent conflicts, but it could also have the purpose
of re-establishing friendship. The divide, of course, is a heuristic one, because
the two situations were not mutually exclusive: a conflict between friends could
degenerate into a duel if the offence was serious, and a settled conflict offered the
possibility of the former adversaries to become friends.
In cases where both adversaries were friends, one or more common friends
could arrange reconciliation. Friendship and enmity in court society were
never only ‘private’ relationships, but had political implications, they were in
a sense ‘public friendships’ and ‘public enmities’ – this, of course, in a society
that did not draw the sharp divide between public and private sphere as present-
19
‘Ensuite de quoi M. de Beaufort alla chez Renard, où Jarzé soupait avec MM. de
Candale, Le Fretoy, Fontrailles, Ravigny et les commandeurs de Jars et de Souvré quelques
autres dont je ne me souviens plus. Il prit le coin de la nappe et jeta tout par terre, renversa la
table. L’on mit l’épée à la main; il y eut une grande rumeur, et personne ni mort ni blessé.’ Ibid.
20
‘Peu de jours après, Monsieur …manda M. de Beaufort et ses amis, et y mena les autres
et les accommoda.’ Ibid.
day Western thought does.21 The pattern of alliances and rivalries between
important courtiers could not leave the others indifferent – because changes
in this pattern could have repercussions on their own position in court society.
Severe or even violent conflicts between one’s friends could weaken one’s own
influence at court. Thus, beyond mere sympathy, mediators could have ‘hard’
interests pushing them to work for reconciliation.
François de Bassompierre tells in his memoirs how, in 1622, he and his friend
Schomberg ceased to speak to each other, because they were rivals for the dignity
of maréchal de France. However, common friends succeeded in re-establishing
their friendship:
The king left, and that same day, the common friends of M. de Schomberg and
of me, displeased to see the tensions between us, worked towards reconciling
us: which was easy for them, as both of us were inclined to it. They made us meet
after the vespers at the Carthusian monastery, where they gave us an appointment,
and from where we left as very good friends.22
It is remarkable, however, that even though Schomberg and Bassompierre were

both inclined to be reconciled, they still needed external mediators. This can
be explained by the aforementioned risk of being denied reconciliation by the
adversary. A mediator, by contrast, did not put his honour in jeopardy if he
obtained a negative answer when asking one of the adversaries if he was ready
to be reconciled.
Another story from Bassompierre’s memoirs shows him not as one of the
adversaries, but as a mediator together with another friend. He describes a
situation where his friends Créqui, Schomberg and Saint-Luc wanted to spend
21
For political friendship in the early modern French court, see Christian Kühner,
‘“Quand je retournai, je trouvai toutes les cabales de la cour changées”: Friendship under the
Conditions of Seventeenth-Century Court Society’, in Bernadette Descharmes, Eric Anton
Heuser, Caroline Krüger and Thomas Loy (eds), Varieties of Friendship: Interdisciplinary
Perspectives on Social Relationships (Göttingen, 2011), pp. 59–75.
22
‘Le Roi partit, et ce même jour, les amis communs de M. de Schomberg et de moi,
fâchés de voir notre mauvaise intelligence, travaillèrent pour nous remettre bien ensemble:
ce qui leur fut aisé, car nous y étions tous deux portés. Ils nous firent voir après vêpres aux
Chartreux, où ils nous donnèrent rendez-vous, d’où nous sortîmes très-bons amis.’ François
de Bassompierre, Journal de ma vie, in Claude Bernard Petitot, Alexandre Petitot and Louis
Jean Nicolas de Monmerqué (eds), Collection des mémoires relatifs à l’histoire de France:
depuis l’avènement de Henri IV, jusqu’à la paix de Paris, conclue en 1763, vols 19–21 (Paris
1822–1823), here vol. 20, p. 376. For Bassompierre and his memoirs see Mathieu Lemoine,
La Faveur et la Gloire: le maréchal de Bassompierre mémorialiste (1579–1646) (Paris, 2012).
François de Bassompierre (1579–1646) was made maréchal de France in 1622; Henri de
Schomberg (1574–1632), in 1625.
the night at Bassompierre’s place. Saint-Luc and La Rochefoucauld did not talk
to each other: they were jealous of each other because of a certain Mademoiselle
de Néry. Créqui and Bassompierre wanted to reconcile them. The next morning,
they met: Bassompierre was accompanied by La Rochefoucauld, and Créqui
by Saint-Luc. Bassompierre and Créqui made the two adversaries embrace
each other, and in turn embrace them as well, ‘with many signs of tenderness
and affection’.23
These examples show some details of the procedure of reconciliation: one
or several mediators approached the two adversaries; in these stories, it is the
mediators who initiate the process – though, of course, it is also conceivable that
one of the opponents would ask for mediation. The mediators spoke separately
with each of the opponents. If both were willing to be reconciled, the mediators
fixed a date and place for a meeting.
Other texts show that the mediator or mediators were themselves present
at such meetings. This, one can suggest, was important in order to make sure
that the meeting would not take a bad turn and produce an argument instead of
reconciliation; such an argument could easily degenerate into the very fight the
mediator sought to avoid.24 In fact, the mediator intervened if the opponents
were about to resume arguing. In 1622, the marquis de Beauvais-Nangis had
an argument with his friend, the aforementioned Schomberg.25 Schomberg,
who commanded an army unit, had stripped his friend Beauvais-Nangis of a
command post, and had transferred the post to his nephew, the comte du Lude.
Beauvais-Nangis felt humiliated because he was older than du Lude. The duke
of Elbeuf tried to explain to Beauvais-Nangis that preferring one’s nephew
was normal.26 Beauvais-Nangis disagreed. According to him, this would have
been acceptable if he and du Lude had been rivals for an open position, but
taking away a command from the older and giving it to the younger person was
unacceptable. It is Elbeuf who arranged a meeting between the two to have
them reconciled. Instead, the two adversaries continued to argue at the meeting.
Whereas Schomberg said that Beauvais-Nangis unjustly doubted his feelings for
him, Beauvais-Nangis replied that it was exactly the fact that the two of them
had been friends that made the humiliation of being deprived of his command
23
‘avec beaucoup de témoignages de tendresse et d’affection’. Bassompierre, Journal de
ma vie, vol. 20, pp. 43–4.
24
Carroll, ‘The Peace in the Feud’, pp. 87–8, reports the case of Jean Bourraige, a
seigneurial official who was killed when his attempt to mediate a conflict between two nobles
got out of hand.
25
Nicolas de Brichanteau, marquis de Beauvais-Nangis (1582–after 1641).
26
Charles II de Lorraine-Guise, duc d’Elbeuf (1596–1657). He belonged to the
Guise, one of the most noble families at court. For the Guise in the seventeenth century, see
Jonathan Spangler, The Society of Princes: The Lorraine-Guise and the Conservation of Power
and Wealth in Seventeenth-Century France (Farnham, 2009).
all the worse. It is at this point that Elbeuf intervened, telling them that they
should not think of it any more; Schomberg then embraced Beauvais-Nangis.27
It is the physical sign of embracing that is used here to seal the reconciliation,
to make it visible and to oblige the two partners to keep the newfound peace.28
Given the strong aspect of face-to-face-communication in court society, it
is not surprising that raccommodement could not be done at a distance. Not
only are there no stories mentioning people being reconciled by exchange of
letters, but there is also a letter by the Grand Condé which seems to indicate
that personal presence was a necessary precondition for reconciliation. Condé
wrote this letter to his favourite, the count of Guitaut, who had a conflict with
the bishop of Autun.29 Condé writes: ‘M. d’Autun has told Caillet that he would
come here. If you are there at the same time, we could accommodate your affair.’30
This passage shows again that the procedure of mediation could also be used for
conflicts that carried no risk of turning violent: as clergy did not bear arms, the
bishop could neither challenge Guitaut nor be challenged by him. The letter
does not tell us what the conflict was about, nor if the two adversaries had been
friends. Nevertheless, there are three things Condé presupposes in this letter:
the conflict needs a mediator, he is the appropriate person to mediate and he can
only do this if the two adversaries meet with him at the same time.
The Limits of Reconciliation
Raccommodement offered a possibility of reconciliation where the adversaries

risked nothing: one of the two might refuse reconciliation, but this did not
offer him a means to humiliate the other by rejecting his signs of goodwill. As
high-ranking mediators often initiated the raccommodement, refusing to be
Nicolas de Brichanteau, marquis de Beauvais-Nangis, Mémoires du marquis de

27
Beauvais-Nangis, ed. Louis Jean Nicolas de Monmerqué and A.H. Tallandier (Paris, 1862),
pp. 188–9.
28
Carroll, ‘The Peace in the Feud’, p. 96, mentions that more formal mediations
presided over by the marshals of France were sealed by a kiss between the parties.
29
While not every letter in this dossier, which contains copies of Condé’s letters to
Guitaut, is dated, those which are date from the mid-1650s to the mid-1660s. The bishop
of Autun named here is thus most probably Louis Doni d’Attichy (1598–1664), who was
bishop of Autun from 1653 until his death. The presence of a bishop of Autun in Condé’s
letters is not surprising: Julian Swann, Provincial Power and Absolute Monarchy: The Estates
General of Burgundy, 1661–1790 (Cambridge, 2003), p. 93, underlines the proximity
between the Condé and the bishops of Autun in the second half of the seventeenth century.
30
‘Mr d’Autun a dit à Caillet qu’il viendrait ici. Si vous y étiez dans le même tems, on
pourrait accommoder votre affaire.’ Archives de Chantilly, Série O, vol. 1, fol. 164, copy of a
letter of the prince of Condé to the count of Guitaut. Caillet was Condé’s secretary.
reconciled with one’s adversary could turn into an affront against the mediator,
who might be one’s patron or sovereign. But though the raccommodement could
be brought about by such pressure, its efficiency was still dependent on the
adversaries’ will to be reconciled. Where this will lacked, a raccommodement that
was imposed upon the adversaries often delayed the duel rather than prevented
it. The prince de Tarente offers two striking examples of this in his memoirs.31
Even though substantial parts of his career took place outside France, Tarente, as
part of the La Trémoille family, was a member of the highest French aristocracy.
In late 1637 or early 1638, he had left France in order to acquire warriors’ skills
in the Netherlands, where his great-uncle Frederick Henry, prince of Orange,
was stadtholder.32 The latter’s son, William II of Orange, was about to marry the
English princess Mary Henrietta Stuart. Tarente reports that Marie de’ Medici,
Mary Henrietta’s grandmother, who was exiled from France at the time, played
a part in arranging that marriage. Tarente accompanied William to England.
When they arrived at Arundel House, a conflict broke out between Tarente and
the count of Nassau about the right to use one of the guest rooms:
The count Henri de Nassau, brother of the maréchal de camp, was to occupy
another house; he preferred being lodged at Arundel’s palace.33 He asked for
it, and he obtained from the maréchal des logis a room that had been destined
to serve as a cloakroom for me; I complained about it to Count Henri, who
answered me with arrogance; the quarrel became heated. We seized our swords,
but we were immediately separated and arrested.34
31
Henri Charles de La Trémoille, prince de Tarente (1620–1672).
32
Frederick Henry, prince of Orange (1584–1647).
33
The maréchal de camp was a high military officer who was, along with others,
responsible for finding accommodation for the troops during campaigns; the maréchal des
logis was also responsible for the lodgings.
34
‘Le Comte Henri de Nassau, frere du Maréchal de Camp, devoit occuper une autre
Maison; il aima mieux avoir un logement à l’hôtel d’Arondel. Il le demanda, & il obtint
du Maréchal des Logis une chambre qui avoit été destinée pour me servir de garde-robe;
j’en fis mes plaintes au Comte Henri, qui me répondit avec hauteur; la querelle s’échauffa.
Nous mîmes l’épée à la main, mais nous fûmes incontinent séparés & arrêtés.’ Mémoires
de Henri-Charles de La Trémoille, prince de Tarente (Liège, 1767), p. 11. This eighteenth-
century edition is the only printed edition of the memoirs of the prince de Tarente so
far. French local historian Jean-Luc Tulot has recently completed a private digital edition
of the memoirs, available under the URL http://jeanluc.tulot.pagesperso-orange.fr/
MemoiresduprincedeTarente.pdf (accessed 11 August 2015). The literature on the prince of
Tarente is not abundant; for the La Trémoille family as a whole, see William A. Weary, ‘The
House of La Trémoille, Fifteenth through Eighteenth Centuries: Change and Adaptation in
a French Noble Family’, The Journal of Modern History, 49 On Demand Supplement (1977):
pp. D1001–D1038, and Martin Wrede, Ohne Furcht und Tadel – Für König und Vaterland:
Now William of Orange intervened, ‘to appease our quarrel’, and made the
two adversaries pledge to forget what had happened.35 Tarente, however, was
not happy about this solution. He sought the counsel of M. de Harcour, captain
of a cavalry regiment that the prince of Orange had given to Tarente. Tarente
explained to him that this would have been his first duel ever, and that he would
rather ‘be blamed of too hot a temper than of too much reluctance’.36 Harcour
explained to him that if he insisted on challenging Nassau, this would be an
affront against William of Orange, as he had settled their dispute; in this case, it
would be impossible for Tarente to take part in William’s wedding. This shows
rather clearly that a nobleman who pursued a quarrel despite a reconciliation
imposed by a high-ranking mediator challenged this mediator’s authority itself.
However, Harcour explained to Tarente that there was a loophole: as soon as
the wedding was over, he, Harcour, would bring Tarente’s challenge to the count
of Nassau. For this, however, a new matter of conflict would need to be found.
The logic applied here is obviously that the reconciliation only holds true for a
past quarrel, but not for a new one that might arise after the mediation. Tarente
thanked Harcour and promised to follow this counsel. What Tarente and
Harcour were doing here was to discuss a threefold strategy: how to successfully
get around the reconciliation that had been imposed upon Tarente, how to
subvert the outcome of the ritual without openly challenging it, and thus how
not to provoke a dispute with the mediator.37 A reception on the eve of William
of Orange’s wedding gave Tarente the opportunity he needed:
On the eve of the wedding, I encountered the Count Henri at the place of a
noblewoman, where there were many guests and [therefore] when it was time to
leave there was a great crowd. I had deliberately placed myself behind him; the
afflux forced him to push me quite hard, but very much involuntarily: this was
what I wanted and what I had planned: I told d’Haucour [sic] that I had a pretext
which was very much a sham one to let my resentment erupt; he approved my
conduct, and promised me to call the Count Henri on my behalf.38
Frühneuzeitlicher Hochadel zwischen Familienehre, Ritterideal und Fürstendienst (Ostfildern,

2012), pp. 39–81.
35
‘pour appaiser notre différend’, Mémoires de Henri-Charles de La Trémoille, p. 11.
36
‘être blâmé de trop de chaleur que de trop de retenue’. Mémoires de Henri-Charles de
La Trémoille, p. 12.
37
For the practice of manipulating rituals see Philippe Buc, The Dangers of Ritual:
Between Early Medieval Texts and Social Scientific Theory (Princeton, 2001), p. 8.
38
‘La veille des noces, je rencontrai le Comte Henri chez une dame de qualité, où
l’assemblée fut nombreuse, & la foule fort grande quand il fallut sortir. Je m’étois mis à dessein
derrière lui; la presse l’obligea de me pousser fort rudement, mais fort innocemment: c’étoit ce
que je désirois & ce que j’avois prévu: je dis à d’Haucour que j’avois un prétexte fort spécieux
The count of Nassau, however, was unwilling to comply with Tarente’s

desire to fight at any cost. He excused himself before Harcour, explaining that
he had not jostled Tarente willingly. He refused to give satisfaction to Tarente,
and stated his reasons to several persons. Here, Nassau undermined Tarente’s
plan: by denying that there had been an offence, he denied the very need for
satisfaction. Harcour went back to Tarente and told him what has happened.
The next morning, both Tarente and Nassau were given guards in order to
ensure that they did not fight; Tarente does not say who took the initiative to
have them guarded, but most probably it was William of Orange.
When they returned to Holland, the prince of Orange was informed of
their quarrel. He summoned them both, reprimanded them and ordered them
to retreat to different cities: Nassau to Grave, and Tarente to Nijmegen. After
some time, both were allowed to return from their banishment, and the prince
of Orange obliged them to sign a document that stated that they would not
challenge each other, which, as Tarente says, was respected by both.39 The
outcome shows quite clearly that the house of Orange used the whole range of
its authority in order to settle the conflict. When the settlement imposed by
William of Orange was bypassed by Tarente who claimed that there had been a
new provocation by Nassau after the reconciliation, the prince of Orange himself
imposed a settlement. Unlike his son, he used coercive means to enforce this
settlement: the adversaries were banished to different places, and the conflict
was settled by a written agreement – which certainly had an even more binding
character than an oral agreement, because it produced a piece of evidence which
could be used against the person who had signed it, should the conflict break
out again.
Tarente relates another duel story from 1641. This time, however, he was
not the one who started the conflict: he was challenged by his adversary, the
prince of Radzivil.40 After an unsuccessful attempt to take the Spanish fortress
of Geldern, the Dutch army had retreated to a camp near their own fortress
of Rheinberg:
We camped there, when I was challenged for a duel by the prince of Radzivil,
whom I had seen sometimes at the Queen of Bohemia’s, where he was very
regularly. One day, he was very displeased that I had taken a seat which he wanted;
as I saw that he claimed it with a manner and tone of arrogance, I could not bring
pour faire éclater mon ressentiment; il approuva ma conduite, & me promit d’appeller de ma
part le Comte Henri.’ Mémoires de Henri-Charles de La Trémoille, pp. 12–13.
39
Ibid., pp. 13–14.
40
In the generation in question, several members of the Radzivil (or Radziwill) family
held the title of prince of the Holy Roman Empire; Tarente does not tell the Christian name
of his adversary, so he cannot be identified.
myself to abandon it to him. Our quarrel frightened the Queen of Bohemia, who
reconciled us, and made us hug each other in her presence.41
The subject – two noblemen in dispute over a seat – corresponds to the

classical cliché of duels being fought about things which seem to be of little
importance; but once such a quarrel was begun, the way back was difficult,
because both adversaries had to hold on to their claim in order not to appear as
the loser of the conflict. Moreover, precedence was a delicate subject, because
it indicated the relative rank of each noble.42 As in the settlements discussed
earlier, the sign of embracing was used to seal this reconciliation. Tarente writes
that he had thought that this would be the end of their quarrel. However,
Radzivil was angry about – unspecified – rumours about this conflict; one
might suppose that he was mocked. Radzivil, Tarente goes on to tell, feared
that this rumour could make him look unfortunate in the eyes of the queen
of Bohemia – his mistress, according to Tarente. This time, Radzivil came to
see Tarente at the camp at Rheinberg to challenge him. Tarente accepted the
challenge; Harcour served as his second. They agreed to fight with swords, but
on horseback. Tarente was wounded in his right arm by Radzivil and disarmed.
He fell down from his horse; Radzivil’s men took him up, stopped the bleeding
and found him a surgeon.43 Here, we see an example of the duel as a channelled
and limited act of violence: Radzivil could easily have killed the wounded and
disarmed Tarente, but apparently having won the duel was enough for him. This
self-restraint was by no means a general feature of noble violence, but, as this
example shows, a clear victory could end a conflict. Another important point is
that the story of the conflict between Tarente and Radzivil ends here; in the next
paragraph of his memoirs, Tarente completely changes the subject and begins to
tell the reader about his attempt to marry the prince of Orange’s daughter. The
explanation is probably rather simple: once the duel was fought, the conflict
41
‘Nous y étions campés, lorsque je fus appelé en duel par le prince de Radzivil, que
j’avois vu quelquefois chez la Reine de Boheme, auprès de laquelle il étoit fort assidu. Un
jour il trouva fort mauvais que je me fusse mis à une place où il vouloit être; voyant qu’il
la demandoit avec un air & un ton de hauteur, je ne pus me résoudre à la lui céder. Notre
querelle effraya la Reine de Boheme, qui nous raccommoda, & nous fit embrasser en sa
presence.’ Mémoires de Henri-Charles de La Trémoille, p. 17.
42
According to Barbara Stollberg-Rilinger, political symbols carried enormous weight
in early modern political contexts. Conflicts over questions of protocol were tantamount to
conflicts over rank and position in the political system, as symbols were seen as embodiments
of rank, not just as outward ornaments. Among Stollberg-Rilinger’s many contributions to
this field, see Barbara Stollberg-Rilinger, ‘Symbolische Kommunikation in der Vormoderne:
Begriffe – Forschungsperspektiven – Thesen’, Zeitschrift für Historische Forschung, 31 (2004):
pp. 489–527.
43
Mémoires de Henri-Charles de La Trémoille, pp. 17–19.
was over. Both parties had shown that they did not back down, and the loser
could accept his adversary’s victory – of course, winning a duel was better for
one’s reputation than losing it, but having lost it still implied that one had had the
courage to fight. Losing a duel was thus not shameful, whereas refusing to fight
could be. This interpretation is backed by the fact that two nobles who fought
a duel against each other could become friends afterwards. An example can be
found in Coligny-Saligny’s memoirs. He relates that he had fought five duels in
his life, the third of which he fought with the marquis d’Équo: ‘The third time,
I fought against the marquis of Équo: both of us were cavalry captains in the
regiment of Harcourt. … Since then, we have always been friends. He was very
brave and very crazy.’44
The examples from Tarente’s memoirs indicate, moreover, that the practices
of reconciliation were rather similar at least throughout the European high
nobilities, as was the practice of the duel. In fact, Tarente’s two adversaries were
the German count of Nassau and the Polish prince of Radzivil (Radziwill); the
duel in England was mediated by the two Dutch princes of Orange, and the
duel in the Netherlands by the Scottish-born Elizabeth Stuart, the daughter of
James VI/I and widow of Elector Palatine Frederick V, the ‘Winter King’ who
had shortly been King of Bohemia at the beginning of the Thirty Years War and
whom she had followed into his Dutch exile.
An example of a raccommodement that only postponed the conflict and
which is set in a purely French context can be found in the memoirs of the count
of Tavannes, a follower of the prince of Condé in the Fronde. He describes a
situation in 1652 where the Frondeurs’ army camped in a suburb of Orléans:
It was there that Mylords de Nemours and de Beaufort had that ominous dispute
of which people have spoken so differently in society, and of which few people
know the truth, which we will describe here in few words. When we were in the
middle of the meeting, Mylord de Nemours complained that everybody only
thought of the interests of Mylord d’Orléans and of Paris, and no longer of those
of Monsieur le Prince, as if he had not played any role in the party.45 Mylord de
Beaufort, who had the reputation of not being a great friend of His Highness,
immediately thought that this allegation was aimed at him, and was strangely
offended because of it: and as he claimed vigorously, that he was as much a
servant of Monsieur le Prince as he could be, and that he would show it; that is
44
‘La troisième fois, je me battis contre le marquis d’Équo: nous étions tous deux
capitaines de cavalerie au régiment d’Harcourt. … Depuis nous avons tousjours été amis.
Il étoit fort brave et fort fou.’ Coligny-Saligny, Mémoires, p. xliv.
45
This is Condé; in his capacity of First Prince of the Blood, he had the right to be
simply called ‘Monsieur le Prince’. The ‘party’ that is mentioned here is the party of the
rebellious aristocrats.
not true, Mylord de Nemours answered him abruptly.46 Immediately Mylord of

Beaufort threw himself over those who had stepped in between the two of them,
and slapped his face with his hand; and Mylord of Nemours at the same moment
seized him by the wig, and ripped it off his head. They were separated with quite
some effort; and Mademoiselle, who had ordered them to be silent, reconciled
them immediately: but not as well as to keep this unfortunate dispute from being
soon afterwards the cause of the death of poor Mylord of Nemours.47
The crucial words in this conflict are ‘cela n’est pas’; they represent the fact
of ‘giving someone the lie’, which is accusing a nobleman of being a liar. The
Grande Mademoiselle, whose high rank gave her enough authority to impose
reconciliation, could nevertheless only delay the escalation.48 Soon after this
scene, Beaufort and Nemours fought a duel, and Nemours was killed.
Another reconciliation story shows two men who did not challenge each
other in a duel, but who would fight a civil war against each other afterwards:
Condé and Mazarin. Before the beginning of the Fronde, the two already had
bad relations because of their latent rivalry: following the deaths of Louis XIII
and Richelieu, they were the two strongest men in the state. Condé had won the
battle of Rocroi against the Spaniards, only five days after the king’s death, which
46
‘His Highness’ also refers to the prince of Condé.
47
‘Ce fut-là que Messieurs de Nemours & de Beaufort, eurent ce funeste different dont
on a si diversement parlé dans le monde, & dont peu de gens sçavent la vérité, que l’on va
raporter ici en peu de paroles. Lorsqu’on étoit au plus fort de la Conference, Monsieur de
Nemours se plaignit qu’on ne pensoit qu’aux affaires de Monsieur d’Orléans & de Paris, &
non plus à celles de Monsieur le Prince que s’il n’eut fait aucune figure dans le parti. Monsieur
de Beaufort qui ne passoit pas pour être fort des amis de Son Altesse, jugeant aussi-tôt que
ce reproche s’adressoit à lui, s’en offença étrangement: & comme il soûtenoit avec chaleur,
qu’il étoit autant serviteur de Monsieur le Prince qu’il le pouvoit être, & qu’il le feroit voir;
cela n’est pas, lui repartit brusquement Monsieur de Nemours. A l’instant Monsieur de
Beaufort s’élançant par-dessus ceux qui s’étoient mis entr’eux deux, lui jetta la main au visage;
& Monsieur de Nemours le prenant en même-temps par la perruque, la lui arracha. On les
sépara avec assez de peine; & Mademoiselle leur ayant imposé silence, les accommoda sur le
champ: mais non pas si bien, que ce malheureux désordre ne fut bien-tôt après la cause de
la mort du pauvre Monsieur de Nemours.’ Jacques de Saulx, comte de Tavannes, Mémoires:
contenant ce qui s’est passé de plus remarquable de 1649 jusqu’en 1653 (Paris, 1691), pp. 184–6.
‘Mademoiselle’ is the Princess of Montpensier, also called the Grande Mademoiselle.
48
The princess of Montpensier was Gaston d‘Orléans’ daughter, and thus Louis XIV’s first
cousin. This gave her an even higher rank than the prince of Condé. ‘Mademoiselle’ was the title
given to the eldest daughter of the king’s oldest brother, who himself held the title ‘Monsieur’.
The title ‘Grande Mademoiselle’ underlines the fact that she belonged to the same generation
as the king. It distinguishes her from the king’s niece, Marie Louise d’Orléans, the daughter of
Louis XIV’s brother Philippe d’Orléans; as she was also the eldest daughter of a king’s oldest
brother, she also held the title of ‘Mademoiselle’, so that a distinction became necessary.
added the reputation of being the country’s most renowned military leader to
his rank as First Prince of the Blood. Mazarin was the leading minister and thus,
besides the queen, the leader of the regency government. The question of which
of them would become the young Louis XIV’s dominant mentor was open; the
two tried to place their respective allies and protégés in important positions. In
1649, when the Fronde had already begun but Condé had not joined it yet, the
queen tried to reconcile Condé and Mazarin, by giving Condé a governor’s post
for the duke de Longueville, his brother-in-law. Condé’s secretary Pierre Lenet
notes about the reconciliation:
The encounter between the two took place in presence of the Queen, who invited
them to a sincere friendship; she gave Pont-de-l’Arche to the duke of Longueville,
and complained henceforth, as she had done before, that this government was
forcibly wrested from her. Moreover, the reconciliation happened with a lot
of coldness, and the prince of Condé said out loud to Cardinal Mazarin that
he would have appreciated it if one had given more generously to the duke of
Longueville that which he had been promised; and that what angered him the
most was that he had finally accepted the compliments of the frondeurs, having
refused them three days in a row, only to give occasion to the Cardinal to change
again from unfavourable to favourable behaviour.49
Here again, the queen, who acted as a mediator, supervised the reconciliation.
However, though the two adversaries complied, at least Condé did so reluctantly,
and made this clear: he stated loudly (‘tout haut’) that he would have wished
that the duke of Longueville should have obtained the government of Pont-de-
l’Arche in a more generous manner – the queen and Mazarin obviously made
it clear that they gave it to him only to keep Condé from joining the party of
the Frondeurs. The ‘froideur’ that characterizes the reconciliation foreshadows
49
The expression ‘revenir du mauvais compte au bon’ does not exist in modern-day
French any more; its meaning thus remains somewhat unsure. ‘L’entrevue de l’un et de l’autre
se fit en présence de la Reine, qui les invita à une sincère amitié; elle donna le Pont-de-l’Arche
au duc de Longueville, et se plaignit depuis, comme elle avoit fait auparavant, qu’on lui
arrachoit ce gouvernement par force. Au surplus, la réconciliation se fit avec assez de froideur,
et le prince de Condé dit tout haut au cardinal Mazarin qu’il auroit souhaité qu’on eût accordé
de meilleure grâce ce qu’on avoit promis au duc de Longueville; et que ce qui le fâchoit le plus
étoit qu’il avoit enfin reçu des complimens des frondeurs après les avoir refusées trois jours
de suite, pour donner lieu au cardinal, pendant ce temps-là, de revenir du mauvais compte
au bon.’ Pierre Lenet, Mémoires de Pierre Lenet, procureur-général au parlement de Dijon, et
conseiller-d’État, concernant l’histoire du prince de Condé depuis sa naissance, en 1627, jusqu’au
traité des Pyrénées, en 1659, in Joseph-François Michaud and Jean-Joseph-François Poujoulat
(eds), Nouvelle collection des mémoires pour servir à l’histoire de France, vol. 3.2 (Paris, 1838),
pp. 183–632 (p. 197).
the Fronde. As Lenet wrote his memoirs long after the Fronde, he may, in
hindsight, have described the atmosphere of this meeting as gloomier than it
was; on the other hand, he had to describe it in a way that still seemed credible to
his readers. In this perspective, it is interesting that there could be reconciliations
where the adversaries showed quite clearly – through their behaviour and perhaps
even through words – that they were not really interested in reconciliation.
Moreover, this particular reconciliation only delayed the conflict between the
prince and the cardinal, but could not prevent it.
Conclusion
As the examples have shown, cases of mediation and reconciliation can be found
in many of the autobiographical texts of high aristocrats of seventeenth-century
France. Mediation was important in a society whose members were extremely
eager to conserve their point d’honneur. Moreover, in the court society, with
its frequent intrigues, changing alliances and ever-changing conjunctures of
royal favour and disfavour, alliances frequently broke up, so that there was
constant need for reconciliation. As ritual reconciliation always involved
other nobles who were present as mediators or as additional witnesses to
the mediation scene, there was a certain pressure to live up to the promise of
reconciliation. However, sometimes noblemen either found ways to get around
a raccommodement or just waited a while and then resumed their conflict.
The potential of raccommodement to contain conflicts thus had obvious limits.
The sources analysed here mention no links between conflicts and duels at court
and traditional feuds. This is probably due to the fact that at court, nobles acted
outside their traditional kinship and alliance networks, which were situated in
their home regions. As only the upper echelons of the nobility could afford life
at court, these networks could not be mobilized there. Courtiers could certainly
act as middlemen who transmitted requests from their clients to court and royal
favours to them; but in conflicts at court, they could hardly appeal to their noble
friends and clients in the countryside. However, we cannot exclude that some
of the conflicts at court had ‘back-stories’ in provincial conflicts which are not
mentioned in the memoirs.50 It is unlikely, though, that these formed a major
source of conflict at court compared to those conflicts which arose from the
As Stuart Carroll, building on Natalie Zemon Davis’s work, has argued, it was common
50
for duellists in court to display their conflicts as isolated disputes arising from a specific, non-
premeditated conflict situation, and to veil any relation to feud and thus premeditation; see
Carroll, ‘The Peace in the Feud’, p. 78. While a memoir was not a document for use in a trial,
it was of course a carefully crafted piece of self-fashioning, and might thus crop out such
stories. See also Natalie Zemon Davis, Fiction in the Archives: Pardon Tellers and Their Tales
in Sixteenth-Century France (Stanford, 1987).
courtly context itself – after all, the court offered power, wealth and prestige
for the nobles to compete for. The frequent reconfigurations of the balance of
power at court constantly generated rivalries for resources, both material and
immaterial; the noble code of honour encouraged nobles to be very sensitive to
personal offences. The combination of these two mechanisms made the court a
conflict-ridden milieu. Raccommodement could not prevent, but could at least
limit, the resulting conflicts. It helped not only to prevent duels, but also to open
up new possibilities for political cooperation between courtiers who had stood
on different sides of intrigues or factional struggles.
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Chapter 5
Containing Confessional Conflict in the
Military: The Holy Roman Empire before
c. 1650
Nikolas Funke
Many traditional accounts of post-Reformation Europe portray religious

conflicts, massacres and wars as the inevitable, not to say ‘natural’, outcome
of religious pluralization. Confessional coexistence and indifference, lived
toleration and the non-violent negotiation of conflict in confessionally
heterogeneous communities, however, have attracted scholarly attention only
relatively recently.1 The growing body of scholarship examining this other side of
the ‘confessional age’ suggests that the presence of more than one denomination
in a given community did not automatically lead to conflict and that toleration,
coexistence and indifference were in fact widely spread in European society.
What becomes increasingly clear is that the characteristics of coexistence were
multifarious and dependent on specific local contexts. All of this makes it
doubtful that the categorical confessional hatred spewed forth by theologians
and pamphleteers and the occasional outbreak of confessional violence were
representative reflections of attitudes towards the religious other in everyday life.
Examining dynamics of conflict resolution and confessional coexistence
in the early modern military may seem an unlikely venture. Armies were
employed, after all, to resolve conflicts violently and most post-Reformation
1
See for example: Kaspar von Greyerz, Thomas Kaufmann, Manfred Jakubowski-
Tiessen and Hartmut Lehmann (eds), Interkonfessionalität – Transkonfessionalität –
binnenkonfessionelle Pluralität: Neue Forschungen zur Konfessionalisierungsthese (Gütersloh,
2003); Keith P. Luria, Sacred Boundaries: Religious Coexistence and Conflict in Early-Modern
France (Washington, DC, 2005); Alexandra Walsham, Charitable Hatred: Tolerance and
Intolerance in England, 1500–1700 (Manchester, 2006); Benjamin Kaplan, Divided By Faith:
Religious Conflict and the Practice of Toleration in Early Modern Europe (Cambridge, MA,
2007); C. Scott Dixon, Dagmar Freist and Mark Greengrass (eds), Living With Religious
Diversity in Early Modern Europe (Farnham, 2009); Howard Louthan, Gary B. Cohen and
Franz A.J. Szabo (eds), Diversity and Dissent: Negotiating Religious Difference in Central
Europe, 1500–1800 (New York, 2011); Jesse Spohnholz, The Tactics of Toleration: A Refugee
Community in the Age of Religious Wars (Newark, 2011).
wars had a confessional dimension. Furthermore, soldiers were hired by

rulers to implement what Thomas A. Brady has recently termed confessional
‘state terror’.2 But simple confessional dichotomies break down when we view
the military not as a tool of politico-religious violence but as a professional
community. All armies working in the Holy Roman Empire in the sixteenth
and seventeenth centuries were confessional composites in which Protestants
and Catholics worked together and fought coreligionists who happened to serve
the enemy. A degree of confessional homogeneity could certainly be achieved in
individual regiments, especially when they were levied abroad. But even these
confessionally less diverse units were forced to cooperate with individuals and
troops who did not share their religious beliefs. Confessional coexistence and
cooperation, therefore, were facts of military everyday life.
The religiosity of soldiers in the post-Reformation Holy Roman Empire
before the end of the Thirty Years War is understudied, and historians tend to offer
only brief and highly contradictory remarks on the subject. Johannes Burkhardt,
for example, cites religious zeal as a motivator to fight while Frank Tallett asserts
that ‘soldiers were remarkable for the lack of any religious sensibility at all’.3
Other historians have suggested that religious hatred – which presupposes a
very strong ‘religious sensibility’ – increased brutality between enemies, or that
confessional tensions were latent among troops.4 On the other hand, Ralf Pröve
has observed that religious intolerance was condemned as unchristian in the
military in the later seventeenth century.5 Maren Lorenz similarly notes that
confession played no role in any of the trials involving soldiers she examines
in her study of military–civilian relations in northern Germany between 1650
2
Thomas A. Brady, Jr, ‘The Entropy of Coercion in the Holy Roman Empire: Jews,
Heretics, Witches’, in Louthan et al., Diversity and Dissent, pp. 92–113 (p. 93).
3
Johannes Burkhardt, Der Dreißigjährige Krieg (Frankfurt am Main, 1992), p. 134;
Siegfried Fiedler, Kriegswesen und Kriegführung im Zeitalter der Landsknechte (Koblenz,
1985), p. 90; Frank Tallett, War and Society in Early Modern Europe (1495–1715) (London,
1992), p. 128.
4
D.J.B. Trim, ‘Conflict, Religion and Ideology’, in Frank Tallett and D.J.B. Trim
(eds), European Warfare 1350–1750 (Cambridge, 2010), pp. 278–99 (pp. 290ff.); Reinhard
Baumann, Landsknechte: Ihre Geschichte und Kultur vom späten Mittelater bis zum
Dreißig jährigen Krieg (Munich, 1994), p. 195; Peter Burschel, Söldner im Nordwestdeutschland
des 16. und 17. Jahrhunderts (Göttingen, 1994), p. 161; Michael Kaiser, ‘Cuius exercitus,
eius religio? Konfession und Heerwesen im Zeitalter des Dreißigjährigen Kriegs’, Archiv für
Reformationsgeschichte, 91 (2000): pp. 316–53 (p. 319).
5
Ralf Pröve, ‘Reichweiten und Grenzen der Konfessionalisierung am Beispiel der
frühneuzeitlichen Militärgesellschaft’, in von Greyerz et al., Interkonfessionalität, pp. 73–90
(pp. 82ff ).
Conflict in the Military: The Holy Roman Empire before c. 1650 129
and 1700.6 The question that remains is whether this latitudinarianism developed
in the standing armies or had already existed previously. This chapter seeks to
bring some order to these contradictions and examine how military society dealt
with confessional heterogeneity.
In some contrast to the other contributions in this volume, the present
chapter focuses on how early modern people avoided conflict rather than
resolved it once relations had gone awry. But, apart from a shared commitment
to John Bossy’s idea of writing social history as ‘a history of actual people’,
there are other important points of connection.7 Several contributions in this
collection highlight the fact that certain behavioural norms and practices
of conflict resolution were capable of governing encounters between groups
and individuals from at times very distant parts of Europe despite often
profound cultural differences. Simultaneously, the fundamental importance of
interpersonal relationships and human agency in making and breaking peace
is emphasized in this contribution and others. But serious commitment to
studying ‘actual people’ comes at a price. It can make for rather ‘messy’ history
not least because people frequently go off script and engage in behaviours that
do not conform to the social roles we expect them to play. Gabriella Erdélyi’s
rambunctious priests, for example, or the hesitancy of women to denounce a
kinswoman, even a suspected witch, that Laura Kounine describes, show that
conflict and its absence depend on the people involved and are difficult to
predict reliably. Like the priests who failed to live up to the ideals of their office
or the witch who failed to elicit panic, the protagonists of this chapter in many
ways defy common expectations in their ability to negotiate religious difference.
There is very little direct evidence to suggest that confession affected military
life in a meaningful way and, as a result, the argument I am making here is based
partially on documentary silence. Historians are much better equipped to study
conflict than peace because, put simply, conflict tendes to produce sources at a
far greater rate than peace. This is a problem all historians of coexistence face
but the situation is worse for the military realm prior to the establishment of
standing armies, as regiments rarely left traces in the archival record that could
illuminate confessional relations.8 In order to gauge how soldiers dealt with
religious diversity in their daily lives, we can turn to a good number of military
memoirs and diaries. I am drawing on 15 autobiographical accounts written in
German and English by Catholic, Lutheran and Calvinist soldiers who fought
6
Maren Lorenz, Das Rad der Gewalt, Militär und Zivilbevölkerung in Norddeutschland
nach dem Dreißigjährigen Krieg (1650–1700) (Cologne, 2007), p. 267.
7
John Bossy, ‘Postscript’, in John Bossy (ed.), Disputes and Settlements: Law and
Human Relations in the West (Cambridge, 1983), pp. 287–93, p. 287.
8
On the problem of documentary silence see for example Walsham, Charitable
Hatred, pp. 26–9, 248, 269.
in the Holy Roman Empire in the sixteenth and seventeenth centuries.9 None of
the authors pondered the issue of confessional coexistence explicitly or recorded
instances in which confession was a source of conflict between soldiers. This
speaks loudly to the routine nature of military toleration, especially because the
diarists reported other kinds of conflict in their units.10
In order to answer why confession was a non-issue among soldiers, this
chapter examines religious coexistence on three levels. First, we have to establish
the ways in which structural idiosyncrasies of the military as a socio-legal realm
facilitated the negotiation of religious difference. Second, we need to reassess
the role confession played in military life; and, third, consider how soldiers
overcame religious differences in encounters with adherents of other confessions.
The socio-legal parameters matter because early modern toleration depended
fundamentally on the legal and communal context in which religious difference
was negotiated. The role of confession in military life has to be addressed mainly
to correct assumptions that confession invariably caused strife among troops
Rudolf Lehmann, ‘Bruchstück eines Tagebuches aus der Zeit des 30jährigen Krieges’,
9
Neues Archiv für Sächsische Geschichte und Altertumskunde, 40 (1919): pp. 171–8; Robert
Volkholz (ed.), Jürgen Ackermann: Kapitän beim Regiment Alt-Pappenheim (Halberstadt, 1895);
Helgard Ulmschneider (ed.), Götz von Berlichingen: Mein Fehd und Handlungen
(Sigmaringen, 1981); Lorenz von Westenrieder (ed.), ‘Tagebuch des Augustin von Fritsch
(Obersten und Commendanten der Stadt Weyden) von seinen Thaten und Schicksalen im
dreyßigjährigen Kriege’, Beyträge zur vaterländischen Historie, Geographie, Statistik, und
Landwirthschaft, vol. 4 (Munich, 1792), pp. 105–191; Jan Peters (ed.), Peter Hagendorf:
Tagebuch eines Söldners aus dem Dreißigjährigen Krieg (Göttingen, 2012); Reinhold
Schottin (ed.), Tagebuch des Erich Lassota von Steblau: Nach einer Handschrift der von
Gersdorff-Weicha’schen Bibliothek zu Bautzen herausgegeben und mit einer Einleitung und
Bemerkungen begleitet (Halle, 1866); Robert Monro, Monro His Expedition With the Worthy
Scots Regiment (London, 1637); Brage Bei der Wieden (ed.), Leben im 16. Jahrhundert:
Lebenslauf und Lieder des Hauptmanns Georg Niege (Berlin, 1996); A.T.S. Goodrick (ed.),
The Relation of Sydnam Poyntz (London, 1908); G. Davies (ed.), Autobiography of Thomas
Raymond and Memoirs of the Family of Guise of Elmore, Gloucestershire (London, 1917);
Ottmar F.H. Schönhuth (ed.), Leben und Thaten des weiland wohledlen und gestrengen Herrn
Sebastian Schertlin von Burtenbach, durch ihn selbst deutsch beschrieben (Münster, 1858);
Hans Staden, Wahrhafftig Historia vnnd beschreibung einer Landtschafft [… ] in der Newen
welt America (Frankfurt am Main, 1557); Eduard von Kausler (ed.), ‘Burkhard Stickel’s
Tagebuch seiner Kriegs- und anderer Verrichtungen auf dem europäischen Festlande, im
Mittelmeer und in Afrika von 1566–1598’, in Württembergische Jahrbücher für Statistik und
Landeskunde (Stuttgart, 1866/1868), pp. 301–424; James Turner, Memoirs of His Own Life
and Times (Edinburgh, 1829); Holger T. Gräf, Söldnerleben am Vorabend des Dreißigjährigen
Krieges: Lebenslauf und Kriegstagebuch 1617 des hessischen Obristen Caspar von Widmarckter
(Marburg, 2000).
10
See for example Gräf, Widmarckter, pp. 111, 117, 119–20; Lehmann, Bruchstück,
pp. 174–5; Monro, Expedition, pp. 41, 47.
and increased hatred between enemies. As we will see, this was not the case.
The successful negotiation of religious difference in interpersonal encounters
poses the most problems for the historian to reconstruct, mainly because such
encounters were hardly ever recorded. The three instances that are examined
towards the end of this chapter allow us to glimpse a variety of strategies with
which the potential of confessional conflict could be defused.
I want to clarify my terms and disclose some lacunae. I use the term ‘soldier’
here to denote professional warriors who fought in armies. I do not differentiate
between ‘soldiers’ and ‘mercenaries’ because this essentially moralizing
distinction is impossible to maintain stringently in this period. Second, the
following observations exclude town militias, which has to be made explicit
because studies on France have shown that militias were prone to attract
religious radicals.11 Whether this was the case in the Holy Roman Empire as
well has to remain an open question for now. Third, this chapter examines only
the resolution of confessional conflict while other types of strife – for example
brawls, honour disputes, ethnic differences, mutinies and so on – lie outside the
scope of discussion.
Religious violence has to be addressed at least briefly. When we concentrate
on instances in which soldiers were not merely agents of princely confessional
policies but appear to have acted on their subjective religious hatred, we can
observe that soldiers did engage in religious violence but not nearly as often as
is commonly assumed. It is, in fact, difficult to find unambiguous instances in
which sectarian hatred appears to have been the primary motivation behind
military religious violence. A major problem in assessing the propensity towards
religious violence among soldiers is that civilians too readily interpreted acts
of military aggression in religious terms.12 If we take a more sceptical view
of these situations and examine the actual behaviour of the soldiers, most of
these encounters appear to have been profane acts of looting that civilian
11
Barbara Diefendorf, Beneath the Cross: Catholics and Huguenots in Sixteenth-
Century Paris (Oxford, 1991), pp. 105, 162ff., 177; Stuart Carroll, ‘The Rights of Violence’,
in G. Murdock, P. Roberts and A. Spicer (eds), Ritual and Violence: Natalie Davis and Early
Modern France, Past and Present Supplement 7 (Oxford, 2012), pp. 127–62 (p. 140).
12
The following articles address this issue very convincingly: Hans Medick, ‘Historisches
Ereignis und zeitgenössische Erfahrung: Die Eroberung und Zerstörung Magdeburgs
1631’, in Benigna von Krusenstjern, Hans Medick and Patrice Veit (eds), Zwischen Alltag
und Katastrophe: Der Dreißigjährige Krieg aus der Nähe (Göttingen, 1999), pp. 377–407;
Michael Kaiser, ‘“Excidium Magdeburgense”. Beobachtungen zur Wahrnehmung und
Darstellung von Gewalt im Dreißigjährigen Krieg’, in Markus Meumann and Dirk
Niefänger (eds), Ein Schauplatz herber Angst: Wahrnehmung und Darstellung von Gewalt im
17. Jahrhundert (Göttingen, 1997), pp. 43–64; and ‘Die “Magdeburgische” Hochzeit
(1631): Gewaltphänomene im Dreissigjährigen Krieg’, in Eva Labouvie (ed.), Leben in der
Stadt: Eine Kultur- und Geschlechtergeschichte Magdeburgs (Cologne, 2004), pp. 195–213.
commentators imbued with religious meaning. Moreover, we have to remind

ourselves that while confessional disputes broke out in one situation, countless
peaceful encounters between adherents of different creeds took place but went
unrecorded. Finally, we have to be aware of a distinctive but easily overlooked
pattern when we are dealing with military religious violence: it was invariably
committed by small groups or individuals while the majority of troops in the
same situation did not join the confessional hostilities.
A close reading of a probably fictitious report can illustrate this pattern
and how easily it can go unnoticed. In his history of the Sack of Magdeburg
(20 May 1631), which painstakingly compiled examples of Catholic barbarism,
the Lutheran theologian Arnold Mengering related a situation in which a soldier
bragged to his comrades about having impaled more than twenty infants on his
pike during the sack. When the others appealed to his conscience and asked
if he did not fear divine punishment for these murders, the soldier allegedly
replied that he only regretted not having killed more ‘heretics’ children’.13 The
scene allows two observations that are important here. First we may assume
that the justification even of horrific acts of religious violence was possible and
believable for civilians and soldiers alike. Secondly and more importantly, the
soldier who acted in this way was atypical. In this story, the soldier’s exhaustive
engagement in exterminating heresy does not earn his comrades’ admiration;
they are horrified by the atrocity. They do not accept the religious legitimization
of his acts but expect divine punishment for what he has done. Our attention
tends to be captured by the abject deeds and religious hatred of the single
Catholic soldier, and we can find other instances like this to string together a
neat narrative of confessionally motivated violence. But we should not overlook
his comrades when we examine events like this. They are in the majority and
we should consider their revulsion and condemnation of confessional cruelty
as representative, not the murderous fanaticism exhibited by the single soldier.14
In this and other respects, military religious violence did not differ from
religious violence in other contexts. Barbara Diefendorf, for instance, repeatedly
underlines that it was a small radical faction within the militias who committed
most of the slaughter during St Bartholomew’s Massacre, while the Catholic
majority of Parisians remained passive.15 Most civilians had to overcome moral
barriers and set aside their respect for the rule of law to physically attack their
spiritually misguided neighbours. As Benjamin Kaplan has pointed out, popular
conviction held that ‘it was normally the place of rulers and their designated
Arnold Mengering, Letzte Belagerung und jammerliche Erober- und Zerstörung der
13
alten Stadt Magdeburg (Magdeburg, 1689), p. 41.

14
The diaries of Peter Hagendorf and Jürgen Ackermann, who were both fighting at
Magdeburg support this interpretation, as neither relates the catastrophe to the struggle
between the confessions: Peters, Hagendorf, pp. 1044–105; Volkholz, Ackermann, p. 17.
15
Diefendorf, Beneath the Cross, pp. 105, 162ff., 177.
agents, not common folk, to wield the sword’.16 Soldiers, however, were these
princely agents for whom violence was a chosen profession, a profession that
also sanctioned their rights to violence. Why did these men not express their
hypothetical hatred of ‘heretics’ or ‘papists’ violently more often?
Confessional coexistence in the armies was aided by the absence of certain
factors that could cause strife in multi-confessional civilian communities. The
regiments did not have churches or graveyards that could be contested by
the confessions, for example. Anxieties surrounding the doctrinal purity of the
corpus christianorum that led some communities to persecute ‘heretics’ were also
unlikely to develop, as regiments were only temporary formations. The benefits
of containing confessional conflict in military communities are obvious.
Soldiers’ lives were constantly under threat, so downplaying or ignoring how a
given individual or group hoped to find salvation removed an additional danger.
This ‘tolerance of practical rationality’, to borrow Bob Scribner’s term, may seem
commonsensical but it thoroughly questions the validity of established narratives
of post-Reformation confessional antagonism.17 It is important to underline
that tolerant early moderns were neither less ‘religious’ nor more ‘rational’ than
their intolerant contemporaries.18 The issue of tolerance and intolerance does
not centre on a putative secular (‘rational’) – religious (‘irrational’) polarity
because both attitudes were equally informed by religious principles. Tolerance
and intolerance depended on which of the conflicting religious imperatives
prevailed in a given situation.
In order to understand confessional coexistence among soldiers, we have to
consider the specificities of martial law, as it was within these particular legal
parameters that soldiers negotiated their denominational differences. Stuart
Carroll has recently underlined the importance of local political circumstances
for the outbreak of religious violence.19 Confessional demonization was part
of the post-Reformation zeitgeist but the occurrence or avoidance of religious
violence depended on the meaning that confession developed in a given
community as well as other local factors. Carroll’s observations are also valid
for the military context, as coexistence in the armies was facilitated by a non-
divisive legal framework that glossed over doctrinal differences and emphasized
common Christian norms. Until the second half of the sixteenth century,
religious stipulations in the articles of war were restricted to a few minimal
requirements: soldiers were forbidden to blaspheme, and churches and clerics
were exempted from plundering and violence. While pre-Reformation articles
16
Kaplan, Divided By Faith, p. 75.
17
Bob Scribner, ‘Preconditions of Tolerance and Intolerance in Sixteenth-Century
Germany’, in O.P. Grell and B. Scribner (eds), Tolerance and Intolerance in the European
Reformation (Cambridge, 1996), pp. 32–47. See also Walsham, Charitable Hatred, pp. 269ff.
18
Spohnholz, Tactics, pp. 221ff.
19
Carroll, Rights of Violence, esp. pp. 130ff., 160ff.
of war traditionally protected the Trinity, the Virgin Mary and the saints
from blasphemous attacks of the soldiery, only God tended to be mentioned
by the end of the sixteenth century.20 The Virgin and the saints, hallmarks of
Catholic veneration, had been dropped in order to make the articles of war
more universally Christian in tone and content. Military authorities also banned
sectarian preaching. As early as 1522, imperial articles of war prohibited sermons
that could stir confessional animosity, a policy that was reiterated at the imperial
diet at Speyer of 1542 and remained in place in imperial and most Catholic
ordinances until the end of the Thirty Years War.21
Throughout the sixteenth century, therefore, the confessional policies of
military and civilian authorities moved in opposite directions: while the latter
generally became ever more confessionally partisan, military authorities tried
to gloss over confessional differences. Beginning with the Reichsartikelbrief of
1570, which served as a template for Catholic articles of war for the following
decades, a greater attentiveness to ‘church’ and ‘social discipline’ on behalf of
the military authorities is noticeable across the confessional spectrum.22 The
articles now penalized absence from services and drunkenness among those
who did attend, and banned the sale of alcohol during services. These rules
were intended to foster greater piety but, again, they applied to soldiers of all
denominations. Following Maurice of Nassau’s 1590 articles of war for the
armies of the United Provinces, Protestant potentates showed a marginally
greater willingness to use doctrinally marked terms and phrases in the articles of
war. The sanctity of the Bible was mentioned frequently, for example, but also
these slightly more confessionally explicit legal codes never prejudiced against
Catholics, let alone engaged with the finer doctrinal points of division between
the Protestant denominations.23
In terms of their legal structure, then, the armies were indeed confessional
‘free states’ (Freistätten) with legal codes that were designed to accommodate
adherents of all Christian denominations.24 But while we can reconstruct the
legal framework of the armies before about 1650, the way in which possible
20
Wilhelm Beck, Die ältesten Artikelsbriefe für das deutsche Fußvolk: Ihre Vorläufer und
die Entwicklung bis zum Jahre 1519 (Munich, 1908), pp. 79, 87; Anon, Artickell wie sich die
kriegslewt Edell vnnd vnedel ym zug wider den Turcken vorhalden sollen (n.p., 1541).
21
Burkhard von Bonin, Grundzüge der Rechtsverfassung in den Deutschen Heeren zu
Beginn der Neuzeit (Weimar, 1904), p. 61.
22
Johan Christian Lünig (ed.), Corpus Iuris Militaris, vol. 1, (Leipzig, 1723), pp. 58ff.
23
For example Denmark, Articulsbrieff (Glückstadt, 1638); Sweden, Schwedisches
Kriegs-Recht (n.p., 1632).
24
Anton Schindling, ‘Konfessionalisierung und Grenzen der Konfessionalisierbarkeit’,
in Anton Schindling and Walter Ziegler (eds), Die Territorien des Reichs im Zeitalter der
Reformation und Konfessionalisierung: Land und Konfession 1500–1650, vol. 7 (Bilanz –
Forschungsperspektiven – Register) (Münster, 1997), pp. 9–44 (p. 39).
confessional conflicts were resolved in courts martial elude historical analysis.

Court martial transcripts are almost non-existent, so the question of whether
religious or confessional offences were prosecuted by the authorities and what
the characteristics of such trials were must remain unanswered for the time
being. Given the notorious difficulties in maintaining order and prosecuting
secular offences, however, it seems unlikely that military authorities invested
much energy in policing religious conduct.
Military latitudinarianism was a concession to practical necessity on behalf
of the military authorities. Early modern warlords and commanders faced
the challenge of assembling and maintaining a force of adequate numbers,
consisting of the most able and reliable soldiers available. Religious homogeneity
was a pipe dream that individual warlords sporadically entertained, but such
conscientiousness invariably had to yield to the ratio belli. Maximilian of Bavaria,
for instance, repeatedly reprimanded his commander in chief Count Tilly for
the many Protestant officers he appointed.25 Tilly, whose deep personal devotion
earned him the moniker ‘Monk in Armour’, chose to ignore such nagging. He
needed the best officers he could find; their religious convictions did not matter.
That warlords could not afford to pursue confessional policies in their armies
without alienating their troops shows that soldiers were not indifferent to
religious matters. At the same time, however, the strategy to defuse the potential
for confessional conflict by providing a universally Christian legal structure
worked out, as I have been unable to find evidence to suggest that confessional
tensions threatened the cohesion of the armies or individual regiments working
the Holy Roman Empire before 1650.
Moving from the legal setting of military toleration to the negotiation of
religious difference in military life, it is striking that this unconfessional outlook
is also characteristic of military autobiographies. Contrary to the persistent
stereotype of the ‘irreligious mercenary’, soldier diaries present the authors
and their fellow soldiers as entirely ‘normal’ early modern Christians who were
in dialogue with the divine, appealed to Him in times of need and thanked
Him for good fortune. Many soldiers appear to have followed the routines
of Christian life when circumstances allowed it and we find them marrying,
baptizing children, attending church services, reading prayer books or singing
hymns. Higher ranks bought church seats at home or endowed altars, devotional
practices which in themselves are indicative of Lutheran and Catholic piety but
were not highlighted as such by the authors.26
25
Marcus Junkelmann, ‘Tilly: Eine Karriere im Zeitalter der Religionskriege und der
“Militärischen Revolution”’, in Marcus Junkelmann (ed.), “Der Du gelehrt hast meine Hände
den Krieg”: Tilly – Heiliger oder Kriegsverbrecher? (Altötting, 2007), pp. 6–51 (p. 16).
26
Gräf, Widmarckter, p. 93; Westenrieder, ‘Fritsch’, p. 187.
Unlike comparable sources produced by civilians, military diaries and

memoirs intended for private use rarely provide confessional commentary, and
confessional self-identification is mostly incidental. Götz von Berlichingen, one
of the first imperial knights to introduce the Reformation in his estates, made
allusion to his Lutheranism only once, when he felt unfairly treated by judges
who were ‘not of [his] faith’ and even described his involvement in the Peasants’
War without mentioning its religious dimension.27 Erich Lassotta, Caspar von
Widmarckter and Jürgen Ackermann similarly made only brief allusions to their
religious convictions, while Peter Hagendorf ’s confession cannot be determined
at all from his written account.28 Writing for a wider, British Protestant audience,
Robert Monro and Sydnam Poyntz did make their confessional allegiances
known and also provided some confessional commentary. In Poyntz’s case, his
conversion to Catholicism made some explication necessary, as he was looking
for employment in England when he wrote his account.29 Monro is the most
confessionally explicit writer in this sample but, while he clearly framed the
German Wars in confessional terms, his descriptions of the military day to
day do not suggest that religious conviction influenced his perception of other
soldiers or his behaviour in war. He even formed intimate friendships regardless
of denomination, for example with the Catholic John Hepburn, for whom
he expressed a deep love.30 We will return to an example of Monro’s cross-
confessional conviviality later on in this chapter.
That few soldiers reflected on the confessional dimension of their experiences
in their diaries has been taken to indicate that they were religiously deficient and
that their spirituality was at best ‘pragmatic’ and ‘un-ideological’ (ideologiefern).31
Implicit in such characterizations is the expectation that soldiers should have
provided a confessional account of the events they experienced – they were
fighting in ‘religious wars’, after all. But the lack of an explicitly stated confessional
identity in the diaries does not preclude religious sincerity. It is undeniable that
military diarists had a Christian outlook on this life and the next; they simply
did not tend to comment on matters of confession in their life accounts.
The military experience itself rendered confessional categories widely
meaningless. The Scottish soldier James Turner described how his service in
the German Wars led to a near-complete loss of ideological investment. Turner
decided on a military career after graduating from the University of Glasgow, but
before he joined the Swedish army he spent a year studying history and theology
Ulmschneider, Berlichingen, pp. 122ff., p. 133.
27
Peters, Hagendorf, passim.

28
29
Goodrick, Poyntz, p. 54.
30
Monro, Expedition, part II, p. 75. My thanks go to Steve Murdoch, who kindly
pointed this passage out to me.
31
Peters, Hagendorf, p. 174; Marco von Müller, Das Leben eines Söldners im
Dreißig jährigen Krieg (1618–1648), MA dissertation, Freie Universität Berlin, 2005, p. 49.
in order to fortify his faith.32 When he returned to Scotland in 1640, eight years
of military service had eroded his ideological conscientiousness. He joined the
Covenanter army accidentally – he missed a ship to Hull so he took the next
one to Leith – but ‘without any reluctance of mind’.33 By his own admission,
he had internalized ‘a very dangerous maxime’, ‘which was that so we serve our
master honnestlie, it is no matter what master we serve’. In contrast to his earlier
enthusiasm for the Protestant cause, he now fought ‘without examination of
the justice of the quarrel, or regard of [his] duetie to either prince or countrey’.34
Turner’s reflections are singular but all the more valuable for their frankness. He
may have been uncomfortable with his loss of ideological principles but he was
not too ashamed to record it. In fact, it appears that he did not think himself
in any way exceptional, he was merely describing how soldiers thought about
their service.
Treatment of the enemy also tended to be devoid of confessionalism. The
conduct of war in the sixteenth and seventeenth centuries was still very much
based on pre-confessional medieval custom, the main difference being that the
laws of war now encompassed common soldiers as well as nobles. The works
of authors like Pierino Belli, Balthazar de Ayala or Hugo Grotius indicate that
some jurists saw the need for a codified and internationally binding ius in bello
but such tracts were not widely used in the field.35 Soldiers negotiated conflict
according to customs that were known and generally heeded across Europe.36
Attitudes towards the enemy have not yet been studied in depth for the German
context, but Barbara Donagan’s observation that soldiers in the English Civil
Wars were bound by an un-ideological ‘Web of Honour’ and encountered each
other as honourable Christians, not as supporters of a religious or political cause,
can generally be applied to the Holy Roman Empire as well.37
Limiting bloodshed between enemies was literally a matter of life and death,
and the outcome of a battle was rarely predictable. Good manoeuvring, attrition
and siege warfare offered some degree of control to the skilled commander
but victory in battle mostly depended on God’s unknowable providence or
32
Turner, Memoirs, pp. 3–4.
33
Ibid., p. 14.
34
Ibid.
35
Pierino Belli, De Re Militari et Bello Tractatus (1563), trans. and ed. H.C. Nutting,
2 vols (Oxford, 1936); Balthazar Ayala, De Jure et Officiis Bellicis et Disciplina Militari Libri
III (1581), trans. and ed. J. Westlake and J.P. Bate, 2 vols (Washington, DC, 1912); Hugo
Grotius, De Jure Belli ac Pacis (1625), ed. R. Tuck, 3 vols (Indianapolis, 2005).
36
Geoffrey Parker, ‘Early Modern Europe’, in M. Howard, G.J. Andreopoulos and
M.R. Shulman (eds), The Laws of War: Constraints on Warfare in the Western World (New
Haven, 1994), pp. 40–58.
37
Barbara Donagan, ‘The Web of Honour: Soldiers, Christians, and Gentlemen in the
English Civil War’, The Historical Journal, 44 (2001): pp. 365–89.
Fortuna’s fickle favouritism.38 While it was expedient for warlords and their
commanders to avoid battles for tactical reasons, soldiers’ lives depended on the
limitation of interpersonal violence. The troops could obviously not make peace
at the political level, but they had considerable influence on how brutal their
encounters were and they tended to limit bloodshed by negotiation.39
Due to the frequency with which individuals and whole contingents switched
sides during this period, the categories of ‘friend’ and ‘enemy’ mostly denoted
temporary constellations. Giving quarter to surrendering enemy troops was
part of fair conduct in war and mutually beneficial: the defeated kept their lives
while the victors could cheaply strengthen their own numbers by incorporating
the lower ranks into their force and profitably ransoming the officers. Jürgen
Ackermann treated his own switching of sides as a matter of course. Frustrated
by the lack of pay and constant defeat in Christian von Halberstadt and Ernst
von Mansfeld’s service, Ackermann joined the enemy when the opportunity
arose.40 Changing sides was a sober calculation of prospects, and nothing
indicates that the Lutheran had scruples deserting the ‘Protestant cause’ nor that
his old or new employers thought this move to be in any way questionable. His
commanding officer even used family connections to help him secure a good
position with the enemy.41
Even violent encounters did not preclude bonhomie between former enemies
later on. Augustin von Fritsch, who had risen through the ranks to the position
of town commander of Amberg, one evening entertained guests with the story
of a particularly daring raid.42 Fritsch and his men had surprised the enemy
sitting at a table and in the confusion that ensued Fritsch killed a quartermaster
while the others fled the room. One of his guests, now the colonel of a Bavarian
cavalry regiment, burst out laughing, which Fritsch took as an expression of
disbelief. The colonel assured him that he did not doubt his story at all, as he
had sat at that very table when Fritsch burst in. The former enemies found the
episode amusing, the colonel laughed despite his unheroic part in the events
and neither man held grudges now that they were both fighting on the same side
and ate and drank together.
The uncertain fortunes of war led military men to adopt a dispassionate view
of the enemy as an entity that had to be defeated but not exterminated. These
attitudes were rarely made explicit but a 1598 military manual admonished
readers to be empathetic with the enemy. In dealing with prisoners, soldiers
‘should use just means and honour the customs of war’ and follow the Golden
Trim, ‘Conflict, Religion and Ideology’, p. 280.
38
See for example Westenrieder, Fritsch, pp. 142, 143, 144.

39
40
Volkholz, Ackermann, pp. 10–11.
41
For even more laconic descriptions of changing sides see Peters, Hagendorf, pp. 108,
110; Lehmann, ‘Bruchstück’, p. 173.
42
Westenrieder, ‘Fritsch’, p. 141.
Rule.43 More generally, no soldier should ‘deplore his enemy, apart from the
Devil’ because both sides employed equally ‘good and upright [redlich] men’.
Ultimately, what mattered was not which side an individual happened to
serve, or which creed he subscribed to, but that he ‘served his master faithfully’.
A soldier song from 1622 expressed what might tentatively be called ‘solidarity’
among enemies in the promise to bury the fallen: ‘We will bury them in the
ground without any mockery, may God have mercy on them.’44
Hatred of the enemy was contingent on behaviour and arose when the
tacit imperative to limit violence was violated. Fighting bravely was central
to the warring ethos but soldiers distinguished clearly between legitimate
acts of violence and atrocities. Jan Phillip Reemtsma has recently introduced
a phenomenology of violence that helps us capture this factor.45 Reemtsma
separates acts of violence into three types, of which two matter here: locative
violence, which is justified by the goal it seeks to achieve, and autotelic violence,
which has no other purpose than destruction and is considered morally
reprehensible. Early modern soldiers employed the same means–end calculus
to measure the necessity and thereby the legitimacy of violence. Early on in
his military career, Peter Hagendorf fought Count Pappenheim’s regiment in
northern Italy. Pappenheim’s artillery claimed heavy casualties on Hagendorf ’s
side but the experience did not breed resentment or hatred against his enemies.
It earned his professional respect and he joined this particular regiment two
years later in Ulm.46 The only time Hagendorf expressed hatred of enemy troops
was when he recalled how Spanish contingents continued to kill surrendering
troops after the Battle of Nördlingen (6 September 1634) had been decided.47
He distinguished acutely between locative violence and autotelic violence.
Pappenheim’s gunners did what they were supposed to do and their killing
was justified by necessity. The Spanish troops, however, engaged in autotelic,
reprehensible violence when they continued to kill after it had ceased to serve
the purpose of obtaining victory.
If superfluous killing was reprehensible to soldiers, so was unprofitable heroism
that unnecessarily cost lives. Garrisons were required to defend their positions
as long as there was a reasonable chance of relief but when a situation became
hopeless it was expected that commanders negotiated an accord. Garrisons that
did not surrender in time and forced the besiegers into suicidal assaults could
43
Adam Junghans von der Olnitz, KriegsOrdnung (Cologne, 1598), fol. 101v.
44
Frank Pietzcker, ‘Die Todesvorstellung im Landsknechts- und Soldatenlied’,
Zeitschrift für Musikpädagogik, 44 (1988), pp. 3–13 (p. 4).
45
Jan Phillip Reemtsma, Trust and Violence: An Essay on a Modern Relationship, trans.
Dominic Bonfiglio (Princeton, 2012), pp. 54ff.
46
Peters, Hagendorf, pp. 101–102.
47
Ibid., p. 109.
expect no mercy.48 Colonel Monro described the taking of Bredenburg castle,

after which the enemy killed everyone within.49 Monro characterized the event as
a ‘monstrous and prodigious massacre’ and admonished his readers ‘to forbeare
the like’ as revenge could be taken ‘in a Christian manner, without making Beasts
of ourselves’.50 However, Monro did not apportion the blame for the atrocity
only to the attackers but held the garrison commander’s unreasonable refusal to
surrender directly responsible for the escalation of violence.
These characterizations of military attitudes are observations of a conduct
of war whose rules were mostly implicit and dependent on both context and
the individuals involved rather than on well-defined and codified laws. Still,
Matthew Bennett is overstating his case when he writes, ‘religious warfare
increased awareness of difference and led to demonisation of any adherents
to an opposing cause’.51 Soldier diaries and other sources provide no evidence
that soldiers ‘demonized’ the enemy a priori, neither for religious nor for other
reasons. Relations between enemies were contingent on the adherence to the
imperatives of honourable conduct of war and these applied to all Christian
warriors. Breaches of these customs did of course occur and in some cases
an atypical religious zeal may have played a role, but such occurrences were
condemned as atrocities within the military community and they were by no
means representative of the way early modern soldiers fought. These observations
help us account for the general absence of confessional self-identification and
commentary in military autobiographical accounts. Soldiers recorded their
professional lives in the same way they conducted war: as Christians, not as
champions of a confessional cause. Their religious beliefs were a personal matter
that had no bearing on the experiences they were recording.
In the last section of this chapter I want to turn to some of the very rare
recorded instances that allow us to witness the peaceful negotiation of
confessional differences. The unremarkable ordinariness of confessional
coexistence in the armies becomes evident when we consider that none of the
military diarists recorded confessional disputes or conflict among soldiers. It is
also telling that none of the following examples concern soldiers negotiating
confessional difference with other soldiers but that confession seems to have
become an issue when soldiers encountered civilians.
The first case takes us to the village of Stumpertenrod in northern Hesse,
where Christian von Braunschweig’s retreating troops arrived on 21 June 1622.
The Lutheran pastor Valentin Eckhart’s report to the court in Darmstadt
For similar observations for the English Civil War see Donagan, ‘Web of Honour’,
48
pp. 368ff.
49
Monro, Expedition, part I, pp. 39–40.
50
Ibid.
51
Matthew Bennett, ‘Legality and Legitimacy in War and Its Conduct, 1350–1650’, in
Tallett and Trim, European Warfare, pp. 264–77 (p. 273).
conveys an atmosphere of terror among the villagers.52 When the troops arrived,
Eckhart’s wife broke down in tears, prompting one of the soldiers to identify
himself as a Lutheran pastor’s son, which he apparently hoped would reassure
her. The soldiers seem to have been friendly towards the villagers and there is
an element of surprise in Eckhart’s letter when he writes that he could speak no
ill of the way the troops acted.53 During the night, the pastor was summoned
by one of the officers. Upon entering the officer’s quarters, Eckhart was offered
a drink of Rhenish brandy, which he declined. The officer accepted this, but
insisted that Eckhart take some brandy for his wife before he subjected the
pastor to a thorough examination of conscience. He produced a copy of Erasmus
of Rotterdam’s Enchiridion Militis Christiani and asked the pastor’s opinion.
Rather diplomatically, Eckhart praised Erasmus’s learning and wisdom but
criticized his ultimate orthodoxy. The officer then moved on to an expensively
bound Calvinist tract and read a passage from the preface. He again asked the
pastor’s opinion and assured him that he could speak freely, a promise which he
affirmed with a handshake. Eckhart averred his ignorance of the finer points of
Reformed doctrine but distinguished between ‘strict’ (rigidi) and ‘mild’ (molles)
Calvinists and suggested that the officer’s book belonged in the latter variety.54
He then briefly explained that too many Calvinist tenets were based on human
reason rather than scripture for his liking. The officer raised no objections and
finally explained that he had interrogated Eckhart because of rumours that the
locals were crypto-Catholics.55 Ludwig V of Hesse-Darmstadt’s neutral position
in the conflict therefore apparently also rendered his subjects vulnerable to
the suspicion of crypto-Catholicism. Pastor Eckhart, overcoming his fear for a
moment, defended his sovereign as a true adherent of the Augsburg Confession,
which briefly triggered the officer’s ire, but the conversation quickly regained its
‘modest, friendly and Christian’ tenor.56
Officers rarely assumed (or arrogated to themselves) religious jurisdiction over
local populations.57 This particular officer undoubtedly was personally invested
in religious matters but it is not entirely clear what motivated him to conduct
52
Fritz Herrmann (ed.), Aus tiefer Not: Hessische Briefe und Berichte aus der Zeit des
Dreißig jährigen Krieges (Friedberg, 1916), pp. 38–43 (p. 38).
53
Ibid. p. 39.
54
Ibid. p. 40.
55
Wilhelm Martin Becker, ‘Ludwig V.’, Neue Deutsche Biographie, vol. 15 (Berlin, 1987),
pp. 391–2.
56
Herrmann, Aus tiefer Not, p. 41.
57
For a Catholic example see the experiences of the reformed preacher Johannes
Northausen, who was subjected to a veritable heresy trial by a Spanish officer in 1584:
Johannes Northausen, Erbermliche Aber warhaffte vnnd Instrumentirte anzeig vnnd
beschreibung […] was der Bischoff zu Lüttig / durch seine befelchshabere gegen einem frommen
Kirchen diener da selbst fürnemmen lassen (n.p., 1584).
this interview in the small hours of the morning. The rumours about Hessian
crypto-Catholicism certainly played a role but we also get the impression that
this was a learned man who went to war with preciously bound books. Perhaps
he simply enjoyed a theological debate over a few glasses of brandy. This episode
also highlights the role of civilian preconceptions about soldiers and the dread
that coloured the military–civilian interface. Such fears were entirely justified –
soldiers habitually brutally abused the civilian population – but we need to bear
the anxiety of the writers in mind when we evaluate such reports.58 When we
try to cut through the fear that is evident in Eckhart’s letter, we realize that the
soldiers actively tried to assuage the fears of Stumpertenrod’s inhabitants. The
officer, too, tries to make his unwilling guest feel more at ease by offering him a
drink, giving him some brandy to take home to his wife and shaking Eckhart’s
hand again after he has asked him to criticize Calvinist doctrine. We do not
know how the situation would have turned out had the soldier detected hints
of papistry in the pastor’s nervous replies. Evidently, however, his concern was
limited to the rumours of crypto-Catholicism and once these suspicions were
removed, he readily accepted a Lutheran’s critique of his own religious beliefs.
Pastor Eckhart’s interrogation was characterized by fear, but situations in
which the different confessions of the interlocutors came to the fore did not
have to be anxious – they could be positively funny. The Scottish soldier Robert
Monro described a dinner during which he and the Swedish chancellor Axel
Oxenstierna debated the worth of the different confessions on the basis of
the alcohol they produced.59 Liberal consumption of Seebester beer made the
atmosphere increasingly merry. The beer was a Calvinist product and Monro’s
favourite, as it was ‘cleerest from all filth or barme, as their Religion is best for
the soule, and cleerest from the dregs of superstition’.60 Monro told the Lutheran
chancellor as much, and Oxenstierna ‘replied merrily no wonder it taste well to
your palat, being it is the good beere of your ill religion’.61 They then debated
‘the good wine of a worse religion’ that was produced in the Catholic region
around Mainz, and Oxenstierna quipped that ‘he liked the wine and the beere
better than both the Religions’. In Monro’s long account this is the only point at
which confessional differences are a subject of discussion, or, rather, inebriated
banter. The Lutheran Oxenstierna and the Presbyterian Monro were conscious
of their doctrinal differences but this did not hamper their bonhomie. They did
not avoid the potentially divisive topic, nor did Monro show much deference to
the chancellor in this matter. Both positioned themselves clearly– Oxenstierna
On fear in the seventeenth century see Andreas Bähr, Furcht und Furchtlosigkeit:
58
Göttliche Gewalt und Selbstkonstitution im 17. Jahrhundert (Göttingen 2013).

59
Monro, Expedition, part II, pp. 47–8.
60
Ibid.
61
Ibid., p. 48.
even referred to Monro’s ‘ill religion’ – but this did not disturb their sociability.
We have to consider the setting in which the exchange took place, at dinner,
as well as the hierarchical chasm between the chancellor and the officer and
what effect these structural factors had on the exchange. It is noticeable, for
example, that Oxenstierna voiced his distaste for the other confessions much
more sharply than Monro could. At the same time, however, the scene allows
us to appreciate the importance of the subjective dynamics of sociability for
the avoidance of conflict. Similar banter could have led to discord in different
personal constellations but in this instance, between these two men, confession
became a vehicle for humour.
The nuns of the Heilig Grab cloister near Bamberg experienced how the
recognition of shared Christian ideals and soldiers’ love of music could also
bridge the confessional divide. In late February 1633 they were visited by
Wilhelm von Lohausen, a Calvinist general-major in the Swedish army, and his
entourage. After a meal, Lohausen asked the nuns to sing compline for him but,
much to the nuns’ astonishment, he did not just listen but joined them in the
choir and sang along.62 The Calvinist general greatly enjoyed himself but asked
the nuns to spare him the Salve Regina, as the Marian hymn was ‘too much’ for
him to stomach. A Calvinist soldier joining nuns in singing a Catholic office is
a remarkable occurrence. That Lohausen not only delighted in the beauty of the
music but was able to join in strongly suggests that he had partaken in Catholic
worship previously. It is also clear that he did not dismiss Catholic piety
wholesale. He appreciated the content of most of the liturgy, presumably because
it celebrated shared Christian beliefs, but drew a line when it came to the Salve
Regina and its focus on Marian devotion. Lohausen also recognized common
Christian ideals when he commented on the nuns’ impeccable imitatio Christi.63
The episode shows us how fruitful the cultivation of the common ground that
remained between the Christian confessions could be. The acknowledgement
of shared elements of belief and the appreciation of certain parts of the nuns’
worship allowed Lohausen to treat them as fellow Christians who were partially
misguided, but Christians nevertheless.
This chapter set out to explore the negotiation of confessional difference
among professional soldiers working in the Holy Roman Empire in the sixteenth
and seventeenth centuries. As we have seen, toleration was not an achievement of
the standing armies; confession had never become a significant source of conflict
in the military realm. Neither did confessional differences make war generally
more brutal; levels of violence were contingent on the behaviour of enemies who
tended to heed the custom to limit violence when possible. It seems likely that
62
F.K. Hümmer (ed.), ‘Bamberg im Schweden-Kriege’, Bericht des Historischen Vereins für
die Pflege der Geschichte des ehemaligen Fürstbistums Bamberg, 52 (1890): pp. 1–168 (p. 115).
63
Ibid., p. 118.
the unconfessional tenor of military life blunted any confessional resentments

soldiers may have harboured. We can rarely trace such inner developments, but
the example of James Turner, who left Scotland to fight for Protestantism and
returned an ideologically indifferent veteran, certainly supports this conclusion.
The case studies point towards modes of behaviour that could defuse the potential
for conflict. These included humour, focusing on shared Christian values rather
than divisive doctrinal elements, appreciating elements of the other confession’s
worship, or asserting a confessional identity in a non-confrontational manner.
There were consequently a number of ways by which soldiers could and did
avoid confessional strife and the absence of divisive interference from above gave
troops the freedom to negotiate confessional diversity.
The findings of this chapter also have implications for our understanding
of confessional conflict and peace in post-Reformation society more generally.
Stuart Carroll’s attention to the influence of micro-politics on confessional
relations proves fruitful when we examine not only local but also professional
settings.64 The example of the military shows the importance of these
parameters for the containment of strife. The fact that martial law did not
make confessional distinctions allowed other principles such as military rank,
patronage, merit and the values of honourable conduct to govern military life.
The relationship between agency and structure also becomes evident.65 The non-
divisive legal framework allowed the negotiation of confessional difference, but
it was still up to the individual soldier to keep the peace. The apparent ease with
which individuals from diverse social, geographical and religious backgrounds
coexisted in the military furthermore shows that post-Reformation Europeans
had a much greater capacity to accommodate difference than many historians
have given them credit for. Recruits underwent military drill but there were no
educational programmes in ‘toleration’, so they already must have possessed the
ability and willingness to overlook confessional differences when they joined
the colours. Consequently, we need to take into account socio-legal setting,
group dynamics and individual agency when we think about the ‘production’
and maintenance of confessional peace. Confessional antipathy was not an
automatic result of religious pluralization, and the example of the military also
shows that the propensity towards confessional conflict in early modern society
has been exaggerated. We must take notice of the Magdeburg baby-impaler and
try to explain how individuals like him justified their actions to themselves and
their God. But we must not forget that the majority of troops did not engage
in religious violence although they were in the same situational context and
possessed the same professional and doctrinal sanction to kill. When we place
64
Carroll, ‘The Rights of Violence’.
See Phil Withington, ‘Company and Sociability in Early Modern England’, Social
65
History, 32/3 (2007): pp. 291–307 (p. 303).

the salient, well-documented but exceptional situations in which religious

pluralization led to strife in relation to the countless peaceful daily encounters
between members of different denominations, we can produce a more nuanced
and certainly more accurate historical picture of the period.
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Trim, D.J.B., ‘Conflict, Religion and Ideology’, in Frank Tallett and D.J.B. Trim
(eds), European Warfare 1350–1750 (Cambridge: Cambridge University
Press, 2010).
Walsham, Alexandra, Charitable Hatred: Tolerance and Intolerance in England,
1500–1700 (Manchester: Manchester University Press, 2006).
Withington, Phil, ‘Company and Sociability in Early Modern England’, Social
History, 32/3 (2007): 291–307.
Chapter 6
Colonial Conflicts: Factional Disputes in
Two Portuguese Settlements in Asia
Tara Alberts
According to the Jesuit chronicler Francisco de Sousa, in 1552 Francis Xavier

took his leave of Malacca by brushing the dirt of the city from his shoes, saying
‘that he did not wish to bring even the dust of such a bad land with him’.1
Xavier’s gesture had biblical precedents. According to the Acts of the Apostles,
Saints Paul and Barnabas were persecuted in Antioch even by the ‘devout and
honourable women and the chief men of the city’.2 As they left ‘they shook off the
dust of their feet’, in adherence to Jesus’ instruction to his disciples to take leave
of ‘whosoever shall not receive you, nor hear your words’ with this gesture.3 An
expression of renunciation, of warning, it signalled that those left behind were
hopelessly defiled and defiling. Xavier’s low opinion of Malacca was chiefly due
to the violent conflicts he had encountered in the town. He had devoted much
time to peacemaking, by quelling quarrels between the fractious soldiers of the
garrison, and by ending feuds between casados (married Portuguese settlers). Yet
there were some conflicts that even Xavier could not resolve, and which sealed
his view of the city as corrupt almost beyond salvation.
One conflict in particular made Malacca his Antioch – his intractable
disagreement with Alvaro de Ataíde, capitão-mor do mar (captain-major of the
sea) of Malacca. The drama is usually summarized as follows: Xavier arrived
1
Francisco de Sousa, Oriente Conquistado a Jesu Christo pelos Padres da Companhia
de Jesus (Lisbon, 1710), p. 603. The same story is recounted in Diogo do Couto, Decadas
da Asia (Lisbon, 1736), p. 897. These descriptions of Xavier brushing the dust from his
feet may draw on an account of the missionary’s first departure from the city in 1546, when
Xavier expressed his frustration at the immorality of the city. See Monumenta Xaveriana, et
Autographis vel Antiquioribus Exemplis Collecta, 2 vols (Matriti, 1899–1912) (hereafter MX),
vol. 2, p. 286; Georg Schurhammer, Francis Xavier: His Life, His Times, trans. M. Joseph
Costelloe, 4 vols (Rome, 1973–1981), vol. 3, p. 50. Couto and other authors later described
Xavier as performing this gesture in 1552 after his travails with Ataíde. See Schurhammer,
vol. 4, pp. 608–609 n. 38 for an extended discussion of this issue. Malacca, now Melaka, is in
modern Malaysia.
2
Acts 13:45, 13:50.
3
Acts 13:51; Matthew 10:14 (See also Mark 6:11, Luke 9:5 and 10:11).
in Malacca with the necessary permissions (provided by the viceroy of India),

and resources (provided by his friend the merchant Diogo Pereira) to furnish
an embassy to China. This would promote Portuguese trade and, hopefully,
Christianity. Ataíde imperiously refused to accede to Xavier’s plan, and insisted
that any such embassy would be staffed by men of his choosing. Xavier was
‘persecuted and abused’ in Malacca by the captain’s supporters. Deprived of the
ship and resources, Xavier eventually was forced to make his own way to China,
only to die before he managed to reach the mainland.4
Xavier’s frustrated letters detailing his conflict with Ataíde circulated in
print and manuscript, and were incorporated into the mushrooming number
of widely read Vitæ describing Xavier’s life and miracles. This standard narrative of
the quarrel fits well into Xavier’s hagiography. As with the apostles, his preaching
encountered discord in a ‘depraved’ city as agents of the Devil sought to rouse
enmity against him. Xavier’s suffering in the city mirrored that of other saints
whose work brought them into conflict with dark forces, while his attempts to
resolve the conflict were also evidence of his piety. As he took his final leave of
Malacca, he dropped to his knees in front of a church and ‘raising his eyes to
heaven prayed aloud for the salvation of Don Alvaro with such a profusion of
tears that he could hardly get the words out’.5 Ataíde and his intransigence thus
became the foil to Xavier’s saint-like zeal and forbearance.
Both Xavier and Ataíde died shortly after this dispute, but their mortal
remains gave further testimony. When Xavier was disinterred in 1554, the
freshness of his corpse reportedly persuaded even his tormentors that they had
backed the wrong side.6 Across Asia Xavier’s critics were likewise converted:
in 1554 his uncorrupted corpse was received with joyful public ceremony
in Malacca, en route to Goa.7 Ataíde however, according to some accounts,
putrefied even before his death as he slowly succumbed either to leprosy or to
‘a huge abscess that formed on his neck, spreading infection throughout his
entire body with such an unbearable smell that no one dared to go near him’.8
As a result of his conflict with Xavier, and his gruesome death, Ataíde also
became a symbolic actor in another narrative: that of the decay of the Portuguese
empire in Asia. Ominously for Malacca, Jesus’ instruction to his apostles to turn
away from recalcitrant populations ends: ‘Verily I say unto you, it shall be more
tolerable for the land of Sodom and Gomorrah in the Day of Judgment, than for
See for example M. Joseph Costelloe’s overview of the quarrel in The Letters and
4
Instructions of Francis Xavier (St Louis, 1992), p. 422.

5
Sousa, Oriente, p. 603.
6
Fernão Mendes Pinto, The Travels of Mendes Pinto, trans. and ed. Rebecca D. Catz
(Chicago, 1989), p. 499.
7
Schurhammer, Francis Xavier, pp. 643–5.
8
Mendes Pinto, Travels, p. 504.
Factional Disputes in Two Portuguese Settlements in Asia 153
that city.’9 For some moralizers, Malacca was already facing divine punishment.
It was surrounded by hostile local rulers and coveted by other European powers.
Many observers saw these threats as externalized reflections of anarchic internal
disintegration: Portuguese cities were pressed by enemies on the outside because
they had failed to prevent their own spiritual conquest from within. In his
conflict with Xavier, and the divine punishment which ensued, Ataíde became
the synecdoche of the sinfulness which threatened the whole Portuguese
imperial project.
In this chapter I will explore three episodes of conflict in the Portuguese
Estado da Índia which often served as rhetorical examples of Portuguese
corruption and decline. Alongside the incident between Xavier and Ataíde we
can set a second conflict in Malacca, which occurred around 1617, when captain
João de Silveira marched on the cathedral with a squad of Japanese mercenaries
to confront the infuriating bishop Gonçalo da Silva. The final episode is a more
slow-burning quarrel, which occurred in Macao between 1615 and 1636. This
dispute brought Dominican friar António do Rosário, the governor of the
bishopric of Macao, into conflict with a range of adversaries, and also culminated
in violent reprisals.
Such conflicts often seem Manichean in the archive. Righteous indignation
still burns on the page as each side condemns the self-interest of the other faction.
Or, we hear only the angry testimony of one party while that of the other is
lost to posterity. The documents which survive – letters of protest, trial records,
enquiry reports and so on – generally seek to apportion blame or to protest
innocence in the most unconditional terms. These absolutes become entrenched
when they form part of the narrative sweep of greater stories: the hagiographies
of saints and Jeremiads of national decline. In modern scholarship, too, these
three episodes of conflict have often served to illustrate broader themes:
administrative chaos and social disharmony within the Estado da Índia, the
clash of civil and ecclesiastical authority, the ubiquity of colonial violence, the
competing pull of God and Mammon on colonial policy.10 Yet, if we deconstruct
these conflicts, complexities and ambiguities become evident, disrupting the
binary between ‘peaceful’ priestly approaches to conflict resolution and the
threatening, sometimes violent strategies of colonial officials.
9
Matthew 10:15.
10
See for example Liam Brockey, ‘Introduction: Nodes of Empire’, in Liam Brockey
(ed.), Portuguese Colonial Cities in the Early Modern World (Aldershot, 2008), pp. 1–16 (p. 5);
Romain Bertrand, ‘Norbert Elias et la question des violences impériales: jalons pour une
histoire de la “mauvaise conscience” coloniale’, Vingtième Siècle, 106 (2010): pp. 127–40
(p. 133); C.R. Boxer, Fidalgos in the Far East 1550–1770 (London, 1968), pp. 87–8, 95–7.
The Bellicosity of the Portuguese and the Patience of Saints
First we should consider the tropes and narrative conventions which shape our
sources. Many travellers’ descriptions of Portuguese Asia revelled in accounts of
violence, lewdness and irreligion, creating a ‘black legend’ of a colonial society
riven by internal conflict.11 The corrupt governor or captain became a familiar
figure in these moralizing warnings. Soldier Francisco Rodrigues de Silveira, for
example, explained that the whole of the conquest was now at risk due to the
‘insatiable avarice’ (cubiça insaciavel) of the ruling elites.12 Others commented
upon the disunity of Portuguese cities: the English factors of Bantam, for
example, described Macao in 1649 as a city riven by murderous disorder, a
degenerated society of men ‘soe distracted among themselves that they are
dailie spilling one anothers blood’.13 Missionary accounts also painted a vivid
picture of degeneracy: an ideal backdrop against which to depict priests striving
through patience, prayer and emotional rituals to reconcile and reform their
parishioners. In Malacca, Xavier described finding himself ‘very busy in making
many friendships, because the Portuguese of India are very bellicose’.14
Two themes of this ‘black legend’– institutional disintegration and chaos,
and the ‘degeneration’ or ‘bellicosity’ of the Portuguese – still have echoes in
some modern scholarship.15 Historians now broadly reject the simplistic notion
of a shift away from violence in the Europe’s ‘civilizing’ centres.16 Yet in the
case of Portuguese Asia, some of these themes linger on in some scholarship.
Romain Bertrand, for example, argues that the ubiquity of violence could be
See especially George D. Winius, The Black Legend of Portuguese India: Diogo do
11
Couto, His Contemporaries and the Soldado Prático. A Contribution to the Study of Political
Corruption in the Empires of Early Modern Europe (Delhi, 1985); Carmen Nocentelli,
‘Discipline and Love: Linschoten and the Estado da Índia’, in Margaret R. Greer, Walter
D. Mignolo and Maureen Quillgan (eds), Rereading the Black Legend: The Discourses of
Religious and Racial Difference in the Renaissance Empires (Chicago, 2007), pp. 205–224;
Sanjay Subrahmanyam, ‘The “Kaffirs of Europe”: A Comment on Portugal and the
Historiography of European Expansion in Asia’, Studies in History, 9 (1993): pp. 131–46.
12
George D. Winius, ‘Francisco Rodrigues de Silveira, the Forgotten Soldado Prático’,
in George D. Winius (ed.), Studies on Portuguese India, 1495–1689 (Aldershot, 2001),
pp. 67–78 (p. 70).
13
Boxer, Fidalgos, p. 154.
14
Francois Xavier to his confreres in Rome, Cochin, 20 January 1548, Epistolae
S. Francisco Xaverii aliaque eius scripta, ed. Georg Schurhammer and Joseph Wicki, 2 vols
(Rome, 1944–1945), vol. 1, pp. 375–96.
15
On the ‘institutional delinquency’ of Malacca, for example, see D.R. SarDesai,
‘Portuguese Administration in Malacca 1511–1641’, Journal of Southeast Asian History 10
(1969): pp. 501–512 (p. 501).
16
See for example Stuart Carroll, Blood and Violence in Early Modern France (Oxford,
2006).
attributed to the insecurity of the ruling elites. They had to defend themselves
against other fidalgos (noble-born) whose large retinues of slaves and retainers
almost amounted to private armies.17 This echoes Hannah Arendt’s argument
that recourse to violence can be seen as a symptom of impotence – that violence
‘appears where power is in jeopardy’.18 Violence within colonial cities is thus
used to illustrate the limit of the powers of Portuguese authorities: openly
violent acts which would have been inconceivable in cities such as Lisbon and
Coimbra were common, even against priests.19 Bertrand also offers a ‘cultural’
explanation for such conflicts. A chivalric code of honour developed among
the fidalgos of the Estado which placed importance on the vengeance of slights
through spilling blood. This code placed these colonial societies on a different
trajectory from societies in Europe: the fidalgos of Goa and Malacca are presented
as reconstructing a backward-looking chivalric mythos. This created a ‘moral
discordance between metropolitan and imperial spaces’.20 The colonial outposts
of Portuguese Asia were surely to be counted among those ‘niches where, at the
twilight of chivalries, the cruelties of men of arms found refuge’.21
In these analyses, violence is theorized as a failure in conflict resolution:
a breakdown of social order. In our three incidents, we could assume that the
captains lost their temper and lashed out, desperately doing something that
they would (or should) later regret. Missionaries, in contrast, seem to offer a
more acceptable, ‘civilized’ model of conflict resolution. That may be true in
many respects, but it leaves unexplained why individuals might imagine that
extreme, violent responses to the conflicts were justified and, crucially, why they
may succeed. We also need to account for the shared grammar of the violent
expressions found in our three case studies. As Hannah Arendt says, violence
is ‘instrumental in nature’; it ‘is rational to the extent that it is effective in
reaching the end which must justify it’.22 But if violence fails, and equilibrium
is not restored, its author may be left in a diminished position. More violence
may result.
Examined carefully, our three incidents turn out not to be the straightforward
symptom of a dysfunctional colonial society or the ‘bellicosity’ of the Portuguese.
They demonstrate, rather, the delicate balance of power within colonial cities,
and the performativity of violence and peacemaking within this context.
17
Bertrand, ‘Norbert Elias’, p. 133.
18
Hannah Arendt, On Violence (New York, 1970), p. 56.
19
Bertrand, ‘Norbert Elias’, p. 132.
20
Ibid., p. 133.
21
Ibid., p. 128.
22
Arendt, On Violence, p. 79.
The Conflicts in Context
Malacca and Macao developed as colonial settlements in different ways but there
were a number of similarities in how the conflicts were sparked and resolved in
each. Disputes over jurisdiction, foreign policy and allocation of revenues were
important background tensions to each incident.
Xavier’s Nemesis
The Portuguese maintained many of the administrative structures of the

Malaccan sultanate they had overthrown in 1511, but also established new
bodies to administer commerce, justice and defence.23 Overall authority for the
city was held initially by the capitão-mor – the captain-major – of the fortress.
In the first half of the sixteenth century, these captains carved out a virtual
monopoly in the trade of some commodities, which they saw as fair recompense
for their services rendered in defence of the city.24
However, over the course of the sixteenth century Malacca began to decline.
Merchants dissuaded by high levies and low profits turned instead to the rival
entrepôts of Aceh and Johor. This hit the captains’ commercial revenue stream
at the same time as there was increasing pressure on the fazenda (royal treasury)
caused by the need to protect the city and its shipping against the expanding
power of Aceh and Johor.25 Captains therefore sought to raise money – for
themselves and for the city’s defence – through increased levies, forced sales and
seizures. Such practices provoked a steady stream of complaints to Lisbon and
Goa that captains were corruptly abusing their power.26
23
See Kernial Singh Sandhu and Paul Wheatley, ‘From Capital to Municipality’, in
Kernial Singh Sandhu and Paul Wheatley (eds), Melaka: The Transformation of a Malay
Capital, c. 1400–1980, 2 vols (Oxford, 1983), vol. 1, pp. 495–597.
24
Paulo Jorge de Sousa Pinto, Portugueses e Malaios: Malaca e os Sultanatos de Johor e
Achém 1575–1619 (Lisbon, 1997), p. 192. Sousa Pinto, ‘Os Casados de Malaca, 1511–1641:
Estratégias de Adaptação e de Sobrevivência’, Blogue de História Lusófona, 6 (2011):
pp. 141–56 (p. 151).
25
See Sanjay Subrahmanyam, ‘Commerce and Conflict: Two Views of Portuguese
Melaka in the 1620s’, Journal of Southeast Asian Studies, 19 (1988): pp. 62–79 (pp. 66–7);
John Villiers, ‘Aceh, Melaka and the Hystoria dos Cercos de Malaca of Jorge de Lemos’,
Portuguese Studies, 17 (2001): pp. 75–85.
26
See Vitorino Godinho Magalhães, Les Finances de l’état portugais des Indes Orientales
(1517–1635): matériaux pour une étude structurale et conjecturelle (Paris, 1982); Sousa
Pinto, Portugueses e Malaios, p. 192; M.A.P. Meilink-Roelofsz, Asian Trade and European
Influence in the Indonesian Archipelago between 1500 and about 1630 (The Hague, 1962),
pp. 166–71; Subrahmanyam, ‘Two Views’, pp. 63–5.
At the same time, power relations in the city were becoming increasingly
complicated. The role of the vedor (superintendent) of the fazenda was growing
in importance: one incumbent, Simão Botelho, accused captain Rui Vaz Pereira
of corruption, deposed him and took over the captaincy himself in 1544.27
Most importantly, to counter the increased threats from the Dutch, Johor and
Aceh, several armadas were sent from Goa to assist Malacca in the late sixteenth
century, under the authority of capitães-mores do mar like Ataíde. The remit of
these captains was to organize the sea defences, yet there were increasing tensions
between the captains of the sea and of the fortress over jurisdiction and access to
dwindling revenues.
These were important contexts for our first conflict – between Ataíde and
Xavier. Ataíde leaves no full account of the dispute: a silence filled by a wealth
of description by Xavier and his supporters. In these accounts, Ataíde was a man
who ‘forcibly prevented’ an agent of the Pope from carrying out his work for
purely mercenary motives.28 Pinto suggested that his refusal to listen to Xavier
was due to ‘a serious quarrel with Diogo Pereira over the latter’s refusal to lend
him the ten thousand cruzados’.29 Alternatively, the author of one early Vita of
Xavier suggested that Ataíde feared the embassy would affect his own commercial
interests in China, and so he ‘procured by all possible means to prevent their
departure, ordering that the mast and sails of the ship be confiscated … Such
is the brute force which temporal interest has over the human heart when it is
overpowered by it!’30
Yet even the most damning assessments of Ataíde’s behaviour and character
can be mined for details which might suggest an alternative interpretation. Let
us consider two points on the charge-sheet: that his indefensible opposition to
the embassy was motivated by venal self-interest, and that he unforgivably used
violence against a priest.
Ataíde apparently objected to the embassy on two grounds: that the revenues
would unjustly go to the merchant Diogo Pereira, and that Pereira was an
unsuitable ambassador. According to Pinto, the vedor da fazenda, feitor (factor)
and customs officials of the city presented Ataíde with a petition in favour of
the embassy, protesting that the captain would be overreaching his authority if
he prevented a ship from leaving port. They promised that Diogo Pereira had
pledged to pay thirty thousand cruzados for the needs of the fortress. Ataíde
grew irate and declared
27
Godinho Magalhães, Les Finances, pp. 17–18.
28
Xavier to Francisco Pérez and Gaspar Barzaeus, 13 November 1552. Costelloe,
Letters, p. 453.
29
30
Manuel Teixeira (? attributed), ‘Vida del Bienauenturado Padre Francisco Xavier’
(before 1590) MX, vol. 2, p. 887.
‘that if Diogo Pereira was obligating himself to give the king thirty thousand
cruzados in customs duties … then he was also obligating himself, on account of
the petition they had brought him, to give them all thirty thousand blows with
the shaft of that halberd’, and as he made a dash for a wall rack on which it hung,
they very hastily withdrew.31
According to Pinto, Ataíde also scoffed at the idea that Pereira, ‘who only
yesterday had been a servant of Dom Gonzalo Coutinho and did not have the
qualifications required to go as ambassador to such a great monarch as the king of
China’, was in any way an appropriate ambassador.32 Certainly the appointment
of non-noble Pereira to the position of ambassador was unusual.33 Indeed, the
crown often demonstrated its concern that all important positions should be
filled by those of noble blood. In 1626, for example, a letter from the king to
Viceroy Francisco da Gama repeated a previous order that ‘no one should be
permitted to purchase the [captaincy of the] China-Japan voyage who is not a
fidalgo of quality’.34
Ataíde’s concerns over the embassy were connected to his desire to protect the
privileges of his family: he insisted that control of such a prestigious endeavour
as an embassy ‘rightfully belonged to him, because of the services rendered by
his father, the count admiral’. 35 The fortress of Malacca, and the privileges and
revenues of its offices were indeed seen in some quarters as the birthright of
Ataíde and his brothers. Other nobles had to ‘buy’ the captaincy of Malacca,
but the fortress was, chronicler Diogo de Couto wrote, already the patrimony of
Ataíde’s family, granted to his famous father: ‘among the graces that king João
paid to D Vasco da Gama was to give him the fortress of Malacca for all of his
sons to enter when they were of age’.36
Ataíde’s intransigence over Pereira could be seen as reflective of a widespread
and damaging obsession with fidalgueria (nobility) and familial advantage in
the Padroado.37 However, Ataíde had other serious objections to the embassy
which seemed to stem from his understanding of his rights and duties of his
office. Ataíde was well aware of the need to defend the authority, privileges and
revenue streams of his offices – not least against other officials within the city.
31
Ibid., p. 494.
32
33
See also Teotonio R. de Sousa, ‘Embassies and Surrogates: A Case-Study of a Malacca
Embassy to Siam in 1595’, Indica, 26 (1989): pp. 39–55.
34
King to viceroy, 14 February 1626, Arquivos Nacionais do Torre do Tombo, Lisbon
(hereafter ANTT), Livros das Monções, liv. 23, fol. 73r.
35
36
Diogo do Couto, Tratado dos Feitos de Vasco da Gama e de seus Filhos na Índia,
ed. José Manuel Azevedo e Silva and João Marinho dos Santos (Lisbon, 1998), p. 107.
37
See for example, Sousa, ‘Embassies and Surrogates’.
His time as captain of sea had already been marred by an ugly dispute with the
fortress captain – his own brother Pedro da Silva. Xavier had arrived in Malacca
bearing letters appointing Ataíde as Silva’s replacement. Silva still had one year
left to serve as fortress captain but was so ‘disliked by everybody’ (mal quisto de
todos) that the householders of the city began to treat Ataíde as though he was
already in charge of the fortress.38 They elected him trustee of the Misericórdia,
and broke completely with da Silva, leading the latter to complain that his
brother was ‘robbing him of his fortress’. Silva’s position was untenable, so he
handed his authority to Francisco Alvares ‘saying that he no longer wanted to
be captain’.39
Silva took Xavier’s part in the dispute with his brother, and continued to
provide the priest with financial and moral support. This was a challenge
to Ataíde when he took over control of the fortress in 1552, not least because
Xavier wrote encomiastic letters back to Goa about Silva: ‘I never saw a man
since my coming to India who has helped me so much’, the priest wrote that year;
‘I would to God that he were now captain of Malacca’.40 Others also weighed
into the dispute and challenged Ataíde’s authority. Francisco Alvares, serving
as vedor da fazenda and ouvidor geral (chief magistrate), sided with Pereira and
Xavier and offered to order Ataíde to return Pereira’s ship’s rudder and to permit
the journey, and, ‘wanting to make him obey by force’ armed himself ready for
the confrontation, only to be dissuaded from violence by Xavier.41
In the context of the disputes over the jurisdiction and position of the captain
of the fortress, it is perhaps significant that Ataíde’s violent outburst followed an
allegation that he was overreaching his authority. Ataíde’s confiscation of the
rudder – or, in some accounts, the sails and mast – of Pereira’s ship, and his
refusal to allow it to leave port could be seen as a part of a broader strategy
to assert his authority. As soon as he had taken possession of Malacca, he had
‘ordered that the rudders of all the ships … that were in the port be taken,
saying that he had news of Aceh’.42 He also refused to let captain Gonçalo Vaz
de Carvalho, who had purchased voyage rights from the viceroy, leave the port,
protesting that those voyages ‘were his, that the viceroy could not give them
away, and that captains of Malacca were entitled to arrange them themselves,
that the king was best served by [the ships] remaining at that fortress, because
38
Couto, Decadas, p. 897.
39
Ibid.
40
Francis Xavier to Gaspar Barzaeus, Malacca, 16 July 1552, Costelloe, Letters, p. 427.
Incidentally this assessment of da Silva was not shared by the authorities in Goa, who
imprisoned him for financial irregularities, fined him 15,000 ducats and banished him to
Africa in 1556. Schurhammer, Xavier, vol. 3, n. 62.
41
Sousa, Oriente, pp. 596–7.
42
Couto, Decadas, p. 897.
he expected the Acehnese’. Thus Ataíde symbolically asserted his control over all
those things which ‘were of the sea, over which [he] had all jurisdiction’.43
Captains had to be able to control – and be seen to control – shipping in
times of necessity, however unpopular this was. This right was upheld even by
those who sometimes criticized the exercise of these powers. Francis Xavier,
for example, had previously observed and indeed participated in a drive to
commandeer resources when he was in Malacca in 1547. He urged Captain
Simão de Melo to send out an armada against Aceh and cajoled ship-owners to
shoulder the entire cost of preparing the fleet.44 When a ship capsized, nearly
drowning the crew, ‘tongues started wagging … attributing this expedition to
the work of the devil. They blamed the whole idea on the captain and Father
Master Francis’, suggesting the resentment felt by the population.45 Suggestions
that Ataíde had corruptly overreached his authority thus echoed a common, but
vigorously contested, complaint.
The second charge against Ataíde was that he was improperly motivated
by commercial interests, whereas Xavier and his allies sought only the glory
of God. Yet it is clear from Xavier’s letters that while Diogo Pereira may have
been motivated by religious fervour, he also expected a return on his investment.
‘I have ruined you’, Xavier repeatedly apologized following the failure of his plan:
you have been deprived of the embassy … after such great outlays and the loss of
your ship and wares, I am, for the relief of my conscience, obliged by my signature
affixed to this letter to write to the king our lord that he is obliged to repay you for
all the losses and damages which you have incurred in his service. 46
Pereira did not give up after his setback with Ataíde: the prize for establishing
stable commercial relations with China was potentially enormous. In 1562 he
became acting capitão-mor of Macao and the following year the viceroy of Goa
sanctioned another embassy to China, headed either by Pereira or by his brother-
in-law.47 However, this embassy also failed to get off the ground: according to
Jesuit Sebastião Gonçalves, this was ‘owing to the many delays imposed by the
Mandarins who suspected that the Ambassador was a trader’.48 Perhaps Pereira’s
original embassy would have run into similar suspicions over the ambassador’s
commercial interests.
Ataíde was perhaps also concerned how Pereira’s wealth might alter the
balance of power in Malacca. Pereira could be seen as a particularly successful
43
Ibid., p. 898.
44
Mendes Pinto, Travels, pp. 455–6.
45
Ibid., pp. 457–8.
46
Xavier to Diogo Pereira, 25 June 1552, Costelloe, Letters, pp. 424–5.
47
48
Ibid., p. 35.
representative of the new breed of merchants in the Estado da Índia who had
been growing incredibly wealthy through their involvement in private trade.
Indeed, Diogo’s brother Guilherme Pereira was said to maintain ‘the largest
household in Portuguese Asia after the Viceroy of Goa’ and to have left Diogo
200,000 cruzados on his death.49 If officials were able to collect taxes and
other duties, these wealthy merchants could be important sources of revenue
for the fazenda in colonial cities. Yet they could also undermine captains’ own
trade monopolies, and their wealth made them potentially dangerous. For the
maintenance of good order in 1538, for example, Captain Estevão da Gama of
Malacca proposed the expulsion from India of all Portuguese who had made
profits of more than 2,000 cruzados.50
Yet even if we can suggest some plausible reasons for Ataíde’s resistance to
the embassy, how are we to explain his violence towards Xavier? The priest went
to great lengths to attempt to win over the captain but, according to Pinto,
Ataíde’s avarice made him stubborn. ‘Even though the father had tried as hard
as possible, in his own virtuous way, to patch up this quarrel and discord, he was
never able to do so’, we are told.51 Instead, Ataíde incited the population against
the priest: Xavier was publicly insulted and assaulted in the street. Xavier bore it
patiently: ‘thus it was being said publicly in Malacca’, reported Pinto, ‘that if the
father desired – as was presumed of him – to suffer martyrdom for God, he had
indeed been a martyr as a result of this persecution’.52
It could be argued that both Xavier’s public attempts at reconciliation and
the rough acts repudiating the saint were equally performative and laden with
symbolism. Xavier employed dramatic gestures and threats of heavenly censure
to put Ataíde under pressure: dropping to his knees to loudly pray for Ataíde’s
soul, lamenting and prophesying divine punishment for Ataíde and Malacca,
and finally threatening the ultimate sanction of excommunication. Even when
he had left for China, he continued to urge, albeit fruitlessly, that the vicar of
Malacca (the highest ecclesiastical official in the city) be ordered to proclaim that
Ataíde had ipso facto incurred the sentence of excommunication by impeding
Xavier.53 Sustaining the quarrel after he left the city was necessary, he explained,
not only for Ataíde’s own good, so that he ‘might recognize the offense which he
has committed against God … and may do penance’,54 but also so that captains
49
Ibid., p. 33.
50
Sousa Pinto, ‘Os Casados de Malaca’, p. 46. Estevão was another of Ataíde’s brothers.
51
52
Ibid., p. 495.
53
The extravagant Super gentes imposed this sentence on any who impeded papal
ambassadors ‘or even nuncios’. Xavier admonished that the vicar be urged to publish this
under pain of excommunication himself. Xavier to João Soares, June 1552, Costelloe, Letters,
p. 423 and n. 8.
54
Ibid., p. 423.
would think twice about crossing men of the Church in the future, for fear of
suffering the violence of excommunication: ‘For even if they have no fear or love
for God, through shame or fear of the world, they will not impede the service
of God.’55
Yet were he to reconcile on Xavier’s terms, Ataíde would have had to
admit that the embassy was outside the jurisdiction of his office, and that his
own motivations for opposing it were mercenary.56 Instead, Ataíde launched a
counter-attack on Xavier’s own claims to authority. He denied the legitimacy
and authenticity of the patents appointing Xavier as papal Nuncio, and of the
ambassador’s letters of appointment from the viceroy.57 His supporters derided
Xavier as a drunkard and a liar, shouting that he was ‘the worst man in the world,
a fine hypocrite, and falsifier of apostolic letters’. They mobbed him whenever he
set foot outside and attacked him with offensive words and gestures.58 Xavier’s
‘persecution’ seems almost like a ritual debasement to refute the sacrality of
his person.59 His behaviour towards the captain was portrayed as motivated by
worldly interest rather than by his priestly office.
And it seems that Ataíde’s strategy was initially successful both in resolving
the dispute without giving ground to Xavier and in persuading many in Malacca
that his actions were justified. As Xavier’s malediction of Malacca suggests,
many in the city remained unconverted to the saint’s opinion. On the contrary,
‘everyone adored D. Alvaro like the just-risen sun’.60 As Pinto notes with disgust,
some of those men of Malacca who were present at Xavier’s death continued
to deny the priest’s sanctity: Ataíde was sent a letter from Shangchuang which
reported, ‘Master Francis has died out here, but in his death he worked no
miracle’.61 Tristan de Vega, commander of a fleet about to attack the Acehnese
in 1573, also acknowledged this early scepticism. He urged his men and the
people of the city to put their faith in God and Xavier in heaven to guide them
to victory, although ‘the saint had much less credit with us in the past than he
has today for this office’.62
Ibid., p. 454.
55
See also Christian Kühner’s chapter in this volume, which illustrates the obstacles to
56
reconciliation when parties feared losing face or otherwise damaging their honour.
57
This technique of alleging that letters of appointment were fraudulent or otherwise
illegitimate was also widely used by prelates in jurisdictional disputes within the church.
See my Conflict and Conversion: Catholicism in Southeast Asia 1500–1700 (Oxford, 2013),
pp. 36–7, 40, 154.
58
59
See also, for example Edward Muir, Ritual in Early Modern Europe (Cambridge,
2005), pp. 106–121, and Gabriella Erdélyi’s chapter in this volume.
60
61
62
Faria y Sousa, Asia Portuguesa, Tomo II (Lisbon, 1674), p. 571.
We can also see some evidence of continued support for Ataíde in the
events which followed Xavier’s death. In April 1554 Antonio da Noronha,
accompanied by Jesuit Melchior Nunes Barreto and magistrate Gaspar Jorge,
set off from Goa to take over the captaincy of Malacca and to arrest Ataíde on
suspicion of disobeying viceregal orders. Jorge unleashed an extraordinary wave
of punishments against everyone who had sided with the captain, to the point
that ‘most of the men fled to the Moors, leaving the fortress so deserted and in
such an abandoned state that it stood in danger of falling’.63 According to Pinto,
Malacca was even deprived of its status as a city and its council and government
stripped of their powers.64 The suggestion of Malacca undergoing a collective
punishment is significant: Jorge held the entire city responsible.65
In the long term, through confronting Xavier, Ataíde would become
notorious. Synonymous with corruption, he even became a character in a
popular Spanish play when Pedro Calderón de la Barca used his name for
the violent, lascivious villain of his 1640 piece El Alcalde de Zalamea.66 Yet as
we have seen, initially his treatment of the priest was not widely condemned.
Xavier’s conduct was as provocative and as aggressive as Ataíde’s lunge towards
the halberd. By publicly emphasizing his concerns about Ataíde’s prospects of
salvation, and by warning of the need to keep future captains in line with threats
of excommunication, Xavier dismissed the possibility that any reasonable
objections to the embassy (or indeed to any missionary project) might arise
‘ex officio’. Opposition could only be a symptom of sinful self-interest. This was
a grave challenge to the authority of the captain, who was driven to respond
to the threatened wielding of the sword of excommunication with a symbolic
and forceful reassertion of his own powers. It seems that it was this treatment
of Xavier that helped to persuade many of Malacca’s denizens that their captain
was in the right.
Storming the Sé of Malacca
It is instructive to compare the disagreement between Ataíde and Xavier, and

contemporary reactions to it, with the second conflict, between Bishop Gonçalo
da Silva and fortress captain João da Silveira. We can see that once again this
was a dispute, broadly speaking, between figures of secular and religious
authority over foreign policy, the powers of their respective offices, and access
63
64
Ibid.
65
Malacca would have its revenge: Antonio Noronha began to suspect that Gaspar
Jorge was usurping his authority so had him arrested, tortured and sent back to Goa. Ibid.,
pp. 504–505.
66
Angel Garcia Comez, ‘El Alcalde de Zalamea: Alvaro de Ataíde y el Capitan de
Malaca’, Iberoromania, 14 (1981): pp. 42–59.
to revenues within the city. As we have seen, these were common battlegrounds,
but circumstances would raise the stakes. Dramatic gestures were necessary to
resolve the conflict.
The problems facing the captains of sea and fortress in Malacca had only
increased by the turn of the seventeenth century. In addition to the perennial
threats posed by neighbouring Malay sultanates, the Vereenigde Oost-Indische
Compagnie (VOC – Dutch East India Company) had begun to launch
significant attacks on Portuguese possessions in Asia.67 Yet it was even more
difficult to fund the defence of the city: prices had increased and revenues were
declining, exacerbating the damage caused by a run of famines, plagues and
sieges. For chroniclers like Manuel de Faria y Sousa the omens were clear: by the
end of the sixteenth century Malacca ‘was mortally afflicted, by diminishment of
wealth, people, health and even of spirit, and by punishment through shipwrecks,
battles, sickness, hunger, thirst’.68 This divine judgment was unsurprising ‘because
Malacca was (if it is not still) the Portuguese Nineveh in Asia due to its most
lascivious greed and the most greedy lasciviousness [por luxoriosissima codicia,
y por codiciosissima luxuria]’. Like Nineveh, Malacca should repent.69
Amidst these difficulties, accusations of fiscal irregularities continued to be
levelled at a succession of captains. At the same time, the authority of the captain
of the fortress was steadily undermined. Reflecting the increased threats from
the sea, by the 1610s captains of the sea were frequently more powerful than
the fortress captain. In 1616, for example, capitão-mor do mar António Pinto da
Fonseca was appointed by the viceroy with authority over all soldiers hitherto
under the fortress captain. He was responsible for organizing the city’s defences,
repairs to the city walls and the fortress itself, became vedor da fazenda, and
assumed the lofty title capitão-geral.70 Unsurprisingly the captain of the fortress,
João Caiado de Gamboa, reacted angrily to what he saw as a usurpation of
his authority.
Relations between the fortress captain and the ecclesiastical hierarchy were
also strained. In 1558 the diocese of Malacca was erected, giving the city its
own bishop. Like Xavier, these men frequently threatened to excommunicate
recalcitrant captains. João Ribeiro Gaio (bishop 1578–1601), for example, used
67
See Subrahmanyam, ‘Two Views’, pp. 67–8; Peter Borschberg, ‘The Seizure of the
Santa Catarina Revisited: The Portuguese Empire in Asia, VOC Politics and the Origins
of the Dutch-Johor Alliance (1602–c.1616)’, Journal of Southeast Asian Studies, 33 (2002):
pp. 31–62. The union of the crowns of Spain and Portugal in 1580 laid the latter open to
attacks from Spain’s enemies, the Dutch and English.
68
Faria y Sousa, Asia, p. 567.
69
Ibid., p. 568. The repentance of Nineveh is recounted in Jonah 3.
70
Sousa Pinto, Portugueses e Malaios, pp. 197–8. Fonseca as vedor: see Documentos
Remittidos da India ou Livros das Monções, ed. Raymundo Antonio de Bulhão Pato, 4 vols
(Lisbon, 1880–1893) (hereafter DRI), vol. 4, p. 298.
his powers enthusiastically, sentencing all who crossed him.71 In 1615 a new
bishop, Gonçalo da Silva, arrived in the city. Da Silva was a Dominican friar and
doctor of theology who had made his name as an Inquisitor in Goa.72 Da Silva
soon became embroiled in debates about foreign policy concerning Aceh and
Johor, and was not slow to use his powers of excommunication to further his
agenda. These interventions, I argue, led to our second incident.
There was a delicate balance of power between Aceh, Johor and Malacca,
which had been unsettled in recent years with the arrival of the Dutch.73 From
the beginning of the seventeenth century, the Portuguese embarked upon a
diplomatic drive to make alliances with neighbouring sultanates, especially
Johor.74 Yet a devastating Acehnese attack on Johor in 1613, which resulted in
the capture of the sultan and his court, had led Johor to reconsider its policy
towards Portugal and consider allying with the Dutch.75 Iskandar Muda, the
sultan of Aceh, had defeated a Portuguese armada in 1615, seizing around
thirty Portuguese soldiers including João da Caiado’s son, Antonio Rodrigues
de Gamboa, and his son-in-law João da Silveira.76 In April 1616, the last hope
of victory over the Acehnese was dashed when Juan de Silva, commander of a
Spanish armada sent to assist the Portuguese, took ill and died in Malacca along
with a number of his soldiers, and the fleet limped back to Manila, leaving
Malacca to its fate. At this point the Portuguese were still allied with the sultan
of Johor, but later that year Iskandar Muda sent Silveira and Gamboa back to
Malacca, offering a truce.77
An alliance with such an implacable foe seemed highly improbable;
chronicler Antonio Boccarro reported that in Malacca everybody suspected
the sultan’s words were ‘full of deceit and treachery’.78 However, it seems that
71
Sousa Pinto, Portugueses e Malaios, pp. 200–201.
72
On da Silva’s good work as Inquisitor, see letter from king to viceroy Lourenço
de Tavora, 28 November 1609, in DRI, vol. 1, p. 267. On his election to the bishopric of
Malacca, King to Jeronimo de Azevedo, 7 January 1614, DRI, vol 2, p. 479.
73
See especially Paulo Jorge de Sousa Pinto, ‘Melaka, Johor and Aceh: A Bird’s Eye
View over a Portuguese-Malay Triangular Balance (1575–1619)’, in Nouvelles Orientations
de la recherche sur l’histoire de l’Asie portugaise (Paris, 1996), pp. 109–31.
74
Borschberg, ‘Seizure of the Santa Catarina’, pp. 60–61; Peter Borschberg, ‘Portuguese,
Spanish and Dutch Plans to Construct a Fort in the Straits of Singapore, ca. 1584–1625’,
Archipel, 65 (2003): pp. 55–88 (pp. 76–9).
75
Borschberg, ‘Portuguese, Spanish and Dutch Plans’, pp. 79–80. See also Sher Banu
A.L. Khan, ‘Ties that Unbind: The Abortive Aceh-VOC Alliance for the Conquest of
Melaka 1640–1641’, Indonesia and the Malay World, 38 (2010): pp. 303–21.
76
Antonio Bocarro, Decada 13 da Historia da India, 2 vols (Lisbon, 1876), vol. 2,
pp. 413–14.
77
Ibid., vol. 2, pp. 416–17.
78
Ibid., vol. 2, p. 417.
Captain João Caiado de Gamboa was convinced. The Manilan relief had come
to nothing, and Malacca’s ally, Sultan Ala’u’d-din of Johor, had been defeated.
Gamboa advocated turning instead to Aceh, ‘scorning the king of Johor, to
better please his enemy [Aceh]’.79 He ‘greatly favoured the case for the sultan
of Aceh, to whom he was grateful for granting liberty to his son and his son-in-
law’.80 Others, however, disagreed. Capitão-geral Fonseca, the resented usurper,
advocated a more cunning policy: making overtures of friendship to Iskanda
Muda but in reality assisting the sultan of Johor wherever possible. This led
to ‘some storms’ (algumas paixões) between Fonseca and Gamboa.81 Similarly,
João Lopes d’Amoreira, a casado of the city and temenggong with responsibility
over foreigners, described as a ‘great friend of the father of the king of Johor’,
favoured strengthening ties with the raja of Pahang, the sultan of Johor’s son.82
Reportedly, ‘João Caiado had persecuted him for this’, hauling him before the
courts and eventually sending him to answer trumped-up charges in Goa.83
Thus a range of adversaries stood in the way of the favoured policy of
Gamboa and Silveira, including the capitão-geral Fonseca – who was also now
vedor da fazenda – and even one of the temenggong of the city. The captains were
using every means available to face down their opponents. In the middle of these
disagreements, two events occurred. First, Gamboa was neutralized. When he was
implicated in the assassination of a ship’s captain, the viceroy in 1616 ordered an
inquiry into the allegations.84 Gamboa seems to have successfully resisted arrest,
but he was replaced as captain by his son-in-law João da Silveira.85 Secondly,
shortly after Silveira took up his office in late 1616, he used his bodyguard of
Japanese mercenaries to force his way into the Sé (cathedral) of the city.86 This
79
Viceroy to king, 8 February 1619, DRI, vol. 4, p. 313.
80
Viceroy to king, 9 February 1619, DRI, vol. 4, p. 315.
81
Viceroy to king, 8 February 1619, DRI, vol. 4, p. 313; Viceroy to king 9 February
1619, DRI, vol. 4, p. 315.
82
The temenggong (spelt tumugão in this document) was a high Malay office continued
by the Portuguese. Viceroy to king, 9 February 1619, DRI, vol. 4, p. 315. Raja Ahmed of
Pahang was captured by the sultan of Aceh in 1617. See C.A. Gibson-Hill, ‘On the Alleged
Death of Sultan Ala’u’d-din of Johor at Aceh, in 1613’, Journal of the Malayan Branch of the
Royal Asiatic Society, 29 (1956): pp. 125–45 (p. 134).
83
Viceroy to king, 8 February 1619 DRI, vol. 4, p. 313; viceroy to king, February 1619,
DRI, vol. 4, p. 315.
84
Bocarro, Historia, vol. 1, p. 361, and vol. 2, p. 630. Bocarro describes the weapon
used as a catana – the Japanese word katana had entered Portuguese to mean a short blade,
but it is unclear whether by using this term Bocarro wished to indicate that the blade was
indeed of Japanese origin, perhaps more firmly linking the crime to the captain considering
the use of samurai as body guards by a number of captains in this period.
85
Ibid., vol. 1, p. 361, and vol. 2, pp. 514, 631.
86
King to viceroy, 1 February 1618, DRI, vol. 4, pp. 297–8.
incident appears frequently in the literature discussing colonial Malacca, but

is never placed within this broader context of the increasingly bitter factional
disputes over Johor–Aceh policy. Yet it seems clear from the documents which
discuss these events that they were firmly linked to these conflicts.
Although the royal letters discussing the events of 1616–1618 do not give
much detail concerning Bishop da Silva’s opinions on the Aceh–Johor issue,
it is clear that he became involved in the debate: a letter from the viceroy
lists the dramatis personae as ‘[the sultan of ] Aceh, the king of Johor, the
Captain of Malacca, the Bishop, and Antonio Pinto da Fonseca’.87 From a
later report, prepared for the king in 1626, it is clear the bishop is firmly in the
Fonseca–Amoreira camp, distrusting Aceh and seeking alliances with friends of
Johor.88 He declared that Iskanda Muda’s diplomacy was a fig-leaf to disguise
the latter’s intention to take Malacca; he recommended forming an alliance
with the sultans of Mataram and Banten instead.89 Da Silva may also have had
his own commercial interests which would be better served by this policy. That
he was engaged in trade is clear from reports sent to the viceroy in the 1620s,
which requested that the bishop should be constrained either ‘to prevent his
clerics from being merchants, or make it so that they pay the 1 per cent’ due to
the fazenda and to stop claiming that ecclesiastical liberties exempted him from
paying dues.90
Strikingly, the incident at the cathedral is only mentioned specifically in one
exchange of letters, in which the king warns of the danger of employing non-
Portuguese mercenaries:
Considering what occurred in Malacca between the captain Dom João da Silveira
and the Bishop, and the occasion that Dom João entered the church using armed
Japanese from his guard … and seeing what a dangerous thing it is to use these
Japanese, as they are not a faithful people, I was very displeased that such notable
carelessness was allowed to occur: to permit armed Japanese, whose disloyalty can
lead to such irreparable damage, to enter a garrison so surrounded by enemies.
I find it strange that nothing has been done about the disorder committed by
Dom João in using a guard of these men in the garrison … I order that no captain
of Malacca may have a body guard of Japanese, Javanese, Malays or any other
nation from these parts, only of Portuguese.91
87
Viceroy to king, 7 February 1619, ANTT, Livros das Monções, liv. 11, fol. 30r.
88
Silva’s report is analysed by Sanjay Subrahmanyam in his ‘Two Views’, pp. 70–73.
89
Ibid., p. 73.
90
Viceroy to king, 20 February 1625, ANTT, Livros das Monções, liv. 22, fol. 44r.
The reports also claim that two nephews of the bishop were terrorizing the city with their
scandalous behaviour, extortions and violence.
91
Compared to the Xavier–Ataíde struggle, the conflict between Silveira and

Da Silva further illuminates two main issues. First, a close reading of the letters
reveals that captains could still be granted the benefit of the doubt when using
force against churchmen. Strikingly, the king finds João’s choice of retainers
more worrying than the attack on the cathedral. This use of potentially disloyal
men was depicted as the real source of disorder rather than the attack on the
cathedral per se. The letters stress the need to investigate the matter carefully,
and demonstrate an awareness that allegations could be concocted to discredit
captains. In 1618, the king ordered an enquiry: if the behaviour of Silveira and
Gamboa had been proven to be as bad as reported, they were to be put in chains
and punished. However, the sentences passed against them were to be sent to
the king sealed, without publication, and no further action taken until the king’s
reply arrived.92 Further letters in 1619 and 1620 suggest that the matter had
not yet been resolved, although Silveira had spent some time in prison awaiting
an investigation. Silveira was finally punished in 1622: initially he was exiled
to Ceylon, but this was commuted to a fine of 2,000 cruzados, payable to the
cathedral of Malacca.93
Secondly, and perhaps most importantly, this conflict demonstrates the
limits of the performative violence of fortress captains. Unlike Ataíde, Silveira
and Gamboa failed to restore the authority of their office through their assault
on the cathedral. Consequently, the office fell into decline. In 1633 when the
post became vacant, the viceroy of Goa struggled to find someone willing to
purchase it.94 Violence to re-assert power, as Arendt says, is most dangerous
when it fails.
Firing on Convents in Macao
The final incident followed a similar pattern to the two previous cases: disputes
over resources and jurisdiction escalated, and eventually brought opposing
factions to an armed stand-off.
Macao had not been taken by Portuguese military force. Rather, it became an
ad hoc settlement of Portuguese merchants who were suffered by local Chinese
authorities to trade and eventually to establish a permanent base.95 Reflecting
92
93
Manuel Teixeira, The Portuguese Missions in Malacca and Singapore (1511–1958),
Vol 2: Malacca (Lisbon, 1961), pp. 205–6.
94
Sousa Pinto, Portugueses e Malaios, pp. 225–6.
95
On the continued autonomy of the settlement and its unusual character within the
Estado see Luís Filipe Barreto, Macau: Poder e Saber. Séculos XVI e XVII (Lisbon, 2006),
pp. 160–61, 210–11; George Bryan Souza, The Survival of Empire: Portuguese Trade and
Society in China and the South China Sea, 1630–1754 (Cambridge, 1986), p. 17; Boxer,
Fidalgos, pp. 8–9.
the settlement’s origins as an informal trading post, until 1587 the captain-major
in charge of the ships which made the annual voyage to trade in China and Japan
(the capitão-mor da viagem da China e Japão) had authority over all Portuguese
ships and settlements between Japan and Malacca, including those of Macao.96
The vast fortunes to be made on the voyage would in theory amply compensate
the capitão-mor and provide adequate resources to defend Portuguese interests,
including the city of Macao.97 The purchase of this office could breed intense
resentment in the city, as local merchants felt unjustly disadvantaged by the
exercise both of the capitão’s trade monopolies and of his putative authority
in Macao.98
This was certainly the case when Lope Sarmento de Carvalho purchased
the rights to the voyage for three years, becoming capitão-mor in 1621. Furious,
the Senado (municipal council) petitioned the viceroy to overturn this grant.99
They argued for the need for a permanent governor of Macao who would
reside in the city who, presumably, would be more attuned to local interests.
The new office of capitão-geral was created in 1623, stripping the capitão-
mor of his authority in Macao.100 Yet this plan to unseat the hated Carvalho
ultimately backfired: the new capitão-geral had greatly increased powers, which
came to be even more deeply resented in Macao. As in Malacca, members of the
ecclesiastical hierarchy were also involved in these disputes. Dominican António
de Rosário acted as governor of the bishopric from 1615 when bishop João Pinto
de Piedade departed for Europe.101 Rosário supported Lope Sarmento Carvalho,
and later backed the new capitão-geral Francisco Mascarenhas (1623–1626).
The Jesuits, on the other hand, despised Carvalho and rejected Mascarenhas:
indeed, Carvalho’s role in repelling a Dutch attack on the city was downplayed
in many Jesuit accounts of the battle.102
The factions also began to fall out over the ecclesiastical governorship of the
bishopric. Rosário was ‘unsuited to any public office’, claimed the Jesuits, being
‘ambitious and not very fearful of God’.103 Furthermore, ‘On numerous occasions
he has procured certificates and false papers without the least scruple, to accredit
and endorse himself.’ 104 The Jesuits suggested two candidates to replace him.
96
97
Souza, Survival, p. 19.
98
On the evolution and role of these bodies see ibid., pp. 12–29.
99
100
‘Instructions for appointment of Captain General of Macao, 1623’, cited by Boxer,
Fidalgos, p. 94.
101
Piedade had his own factional disputes in Macau which had contributed to his
departure. See Manuel Teixeira, Macau e a Sua Diocesa (Macau, 1940), vol. 2, pp. 33, 91–3.
102
Boxer, Fidalgos, pp. 87–8.
103
‘Relação’, Biblioteca da Ajuda, Lisbon (hereafter BA), 49-V-3, fols 66v, 69v.
104
Ibid., fol. 69v.
First they argued that Diogo Valente, the exiled bishop of Japan, had been
nominated by the king.105 In 1622 Valente preached a sermon on Easter Sunday
which attracted ‘a great mass of people’, but Rosário ‘came out with a letter of
excommunication’ which obliged everybody to attend services in the cathedral,
rather than listen to the Jesuit.106 Such threats of excommunication were deemed
particularly nefarious. Instead of providing his flock with pastoral care, Rosário
was ordering ‘the publication of unjust and void excommunications’, causing
great spiritual harm.107
The Jesuits then proposed a second replacement: Adriano da Cunha
was apparently elected with the support of the vedor, the committee of the
Misericórdia, the ouvidor, the Jesuits ‘and the people’. Rosário, some secular
clerics, ‘the majority of the new Christians, fearful of the Inquisition, of which
António is Commissioner’, and some other ‘friends’ of the Dominican rejected
Cunha.108 Other mendicants predictably took Rosário’s side, one Jesuit sneered,
which was only to be expected since their superiors ‘send to these parts … those
for whom they have no use’: Rosário’s supporters were the spiritual dregs of their
religious houses.109
As this disagreement escalated, both sides claimed the authority of the
Inquisition and excommunicated their rivals. Both also took up temporal
weapons. A troop of armed men confronted the Jesuits and their allies, ‘insulting
them publicly, thus causing many other people to do the same, beating the
said fathers, pushing them to the ground, and putting swords to their chests’.110
Rosário himself was ‘insufferable and rude’, claimed one Jesuit report: ‘he
uses very discourteous words and calls us names which we don’t deserve, even
in public’.111 The Jesuits, on the other hand, according to a pro-Dominican
account, obeyed Cunha ‘as though as he were the legitimate and true prelate,
and defended and sustained him with force of arms. Things came to such a pass
that because the legitimate governor [Rosário] wanted to defend his jurisdiction,
they corralled him in his convent.’112 Not content with this, they raised some
105
‘Relação de algumas couzas que socederão nesta Cidade de Macao’, 2 July 1623, BA,
49-V-3, fol. 69v; ‘Informaçao do que sucedeo em Macao sobre as eleições dos Governadores
do Bispado da China’, BA 49-V-5, fol. 537r.
106
‘Certidão de Excomunhão de Fr Antonio do Rosario’, 1622 49-V-3, fol. 64r.
107
Ibid., fol. 66r.
108
‘Informaçao do que sucedeo em Macao sobre as eleições dos Governadores do
Bispado da China’, BA 49-V-5, fol. 537r.
109
Ibid., fol. 538r.
110
‘Culpas, e crimes notorios, que tem cõmetido o Pe Fr. Anto–– do Rozo’, BA 49-V-5,
fol. 614v.
111
Ibid., fol. 618v.
112
Anon., ‘Contem alguas coussas dignas de se saber em resão de querer sembre os
Padres da Companhia … ser’ senhores absolutos … ’ ANTT, Livros das Monções, 53, fol. 28v.
men and ‘went with many arms – muskets in their hands and powder-horns on
their belt – and fired many shots at the said convent, and wounded some men
who were inside, defending the True Prelate’.113 A later enquiry heard that these
men had been animated by a speech given by Jesuit Gaspar do Amaral, whom
the Jesuits recognized as the true commissioner of the Inquisition in Macao.
According to eyewitness Francisco Pina Salazar, Amaral had shouted, ‘Senhores
soldados! I am here to die for the Holy Office, which is the same as for the faith’
and he promised that those attacking the convent would ‘die martyrs’.114 In 1624
another attack was made, this time to challenge the authority of Mascarenhas.115
According to Italian traveller, Marco D’Avalo, the Jesuits and some citizens of
Macao attacked the Augustinian convent where he was lodging and ‘fired at him
with three canon shot which went through the convent wall’.116
This imbroglio inspired similar warnings from moral commentators as the
incidents in Malacca. For Spanish Dominican Domingo Navarrette, who visited
Macao in 1669–1670, such attacks epitomized the ‘Broils, Uproars, Quarrels
and Extravagancies there have been at Macao’.117 Rosário and the Dominicans
had tried to make peace, he reported, but their aggressors viciously – perhaps
sacrilegiously – besieged the monastery:
[T]he Jesuit Fathers and a large number of armed laymen, went with Fire-
arms against our Dominican Monastery there; our Friers [sic] closed it and to
defend themselves they placed the Blessed Sacrament in a Window of the Choir
overlooking the Plaza. When they saw this the armed attackers said, ‘Genuflect
to the Blessed Sacrament, and Fire upon the Monastery’, and in this wise they
fired on the Convent, and ’tis certain the Religious therein had dy’d, had they not
secur’d themselves.118
For such enormities, Navarrete warns, God would not spare the Portuguese.
He points to their recent losses in India, where they ‘everywhere are subject
to Gentiles, Mahometans, or Heretiks, and by them crush’d, contemn’d and
despis’d’.119 The insolence and pride of the Portuguese had led to the loss of their
113
Ibid., fol. 28r.
114
Inquiry report, 18 September 1642, ANTT, Livros das Monções, liv. 53, fol. 32r.
115
Barreto, Macau, pp. 195–6.
116
Cited by Boxer, Fidalgos, p. 95.
117
Domingo Navarrete, The Travels and Controversies of Friar Domingo Navarrete,
ed. J.S. Cummins, 2 vols (Cambridge, 1962), vol. 2, p. 270.
118
Ibid., p. 270. Note that in his editor’s notes to accompany this account, J.S. Cummins
suggests that ‘It is not certain if the priory was actually bombarded’. Once again, the details of
the story have perhaps been occluded by its role in later narratives.
119
Ibid., p. 274.
conquests: ‘It is a mercy if God scourges so that he might correct; if he delivers

from sin though tribulation’, he intones, citing St Augustine.120
Ultimately, it was this Dominican narrative of outrageous, unjustifiable
Jesuit violence that survives in most accounts of these tumultuous years in
Macao. Yet the Jesuits were not alone in their recourse to temporal and spiritual
force. Like the other incidents, these struggles represent the birth-pangs of a
new order, where the government of the city was re-organized in response to
maritime threat and the ecclesiastical hierarchy of the city adjusted to the shifting
influence of the various religious orders. Like the other conflicts, the events in
Macao demonstrated the value of temporal violence in spiritual disputes, and
the importance of the spiritual weapon of excommunication in battles over
temporal authority: through such means Rosário and Mascarenas prevailed.
Conclusion
Commentators from the seventeenth century to the present day have searched
for the seeds of imperial decline in the character and actions of the men of the
Estado da Índia. The trope of the avaricious, violent captain filling his own coffers
with the wealth of the fazenda clearly had some basis in reality. It is clear too that
many tensions resulted from reasonable concerns of casados and merchants that
the recently arrived, crown appointees would fail to act in the interests of the
long-term residents.121 Priests could indeed act as mediators and peacemakers.
The archives are certainly full of testimonials to support these contentions. Yet
the three case studies explored above complicate this picture.
All parties in disputes naturally insist that their opponents are acting out
of self-interest. Unfortunately for the captains, this can seem all too easy to
believe. The image of corrupt captains became something of a convenient
cliché: a plausible accusation which added ballast to more personal grievances.
Appeals to the crown were framed in a very specific rhetoric of denunciation and
warning. Although many captains may indeed have been corrupt, unreasonable,
violent individuals, and while priests may have longed for peace, we should also
consider how the sources we depend on conform to a genre, calling on rhetorical
tropes which would best support the author’s claims.
Captains made their point with weapons of war which resonated with their
own office and duties as defenders of the city. Similarly, priests were willing to
Ibid., pp. 274–5.
120
This is a key theme in C.R. Boxer, Portuguese Society in the Tropics: The Municipal
121
Councils of Goa, Macao, Bahia and Luanda, 1510–1800 (Madison, 1965). See also Barreto,
Macau, pp. 166–7; Isabel dos Guimarães Sá, ‘Charity, Ritual, and Business at the Edge of
Empire: The Misericórdia of Macau’, in Brockey, Portuguese Colonial Cities, pp. 149–76
(pp. 157–62); Sousa Pinto, Portugueses e Malaios, p. 204.
use public displays to shame and pressurize their opponents, and to threaten
to wield their ultimate weapon – the sword of excommunication – to resolve
conflicts definitively in their own favour. A show of force – physical or spiritual –
could be risky, and could result in retaliation, yet in some cases it seems to have
achieved its particular end.
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Empire in Asia, VOC Politics and the Origins of the Dutch-Johor Alliance
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Part III
Law, Courts and Conflict
Chapter 7
Contesting Public Executions in Paris
Towards the End of the Wars of Religion
Tom Hamilton*
A major focus of French historical writing about the early modern period is the
growth and affirmation of state power, particularly in the distribution of justice.1
The most extreme interpretation in this tradition is Michel Foucault’s account
of the exceptional public execution in Paris of the attempted-regicide Robert-
François Damiens on 28 March 1757, an event which repeated the execution
of the regicide François Ravaillac on 27 May 1610 but was otherwise entirely
unrepresentative of pre-modern justice.2 Foucault’s account has provoked
rigorous historical research into how early modern criminal courts carried out
public executions as a ‘political ritual’ to perform good justice and enforce the
rule of law.3 Yet, as this volume shows, public executions represented only a
final stage among a range of formal and informal procedures for processing
disputes. While the rhetoric of royal justice in early modern France made great
* I would like to acknowledge the help of those who heard versions of this paper in
Cambridge, Durham, Oxford and Princeton, as well as Nicolas Buat, Benjamin Darnell,
Kat Hill, Lucy Whelan and particularly David Parrott. My thanks also to Alfred Soman for
his advice and permission to cite from the Soman Collection held at the Jacob Burns Law
Library, George Washington University (hereafter Soman Collection). My research has been
funded by the Arts and Humanities Research Council UK, and grants from the Society for
the Study of French History and the Reynolds Fund of New College, University of Oxford.
1
Arlette Lebigre, La Justice du roi: la vie judiciaire dans l’ancienne France (Paris, 1985).
For critical perspectives see Fanny Cossandey and Robert Descimon, L’Absolutisme en France:
histoire et historiographie (Paris, 2002) and Christian Kühner’s chapter in this volume. The
groundbreaking research conducted by Nicole and Yves Castan into the relationship between
royal justice and conflict resolution in early modern France is represented in Nicole Castan,
‘The Arbitration of Disputes under the “Ancien Régime”’, in John Bossy (ed.), Disputes and
Settlements: Law and Human Relations in the West (Cambridge, 1983), pp. 219–60.
2
Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan
(London, 1979, first French edition 1975), pp. 3–69. See the trenchant criticisms made by
Stuart Carroll in his Afterword to this volume.
3
Particularly significant for the present chapter are Pascal Bastien, L’Exécution publique
à Paris au XVIIIe siècle: une histoire des rituels judiciaires (Paris, 2006), and Paul Friedland,
Seeing Justice Done: The Age of Spectacular Capital Punishment in France (Oxford, 2012).
claims to efficacy, the role of public executions in cultures of conflict resolution

was limited. Public executions were used sparingly even at the highest level
of criminal justice, held in crucial balance with the king’s capacity to pardon.
Nevertheless, public executions demonstrated to the people royal justice
in action. They reveal the capacity of criminal courts to achieve their goals.
Focusing on the contests over public executions in Paris towards the end of
the Wars of Religion, this chapter exposes the inadequacies of state-directed
conflict resolution in practice. In particular, it examines both the ritual of public
executions ordered by the Parlement of Paris and the responses they provoked
at a moment of acute crisis, the troubles of the Catholic League (1588–1594)
towards the end of the Wars of Religion, which tested to the limit the court’s
capacity to resolve conflicts at the highest level of criminal justice.4
During public executions, the magistrates of the Parlement worked to ensure
that the condemned died penitent and recognized the truth of their crimes, and
that they were expelled from society in this life and prepared for their salvation
in the next. Yet contrary to this smooth, customary ritual that the court’s
publicists presented, the condemned often challenged their sentence before
the magistrates and the unpredictable crowd. Such disturbances are perhaps
inherent to the practice of exemplary capital punishment. They were particularly
significant during the troubles of the League that divided the internal politics
of the Parlement and severely disrupted its administration of criminal justice.
Sections of this chapter focus on the execution ritual itself, the impact of the
troubles of the League on the practice of criminal justice in the Parlement, and
the responses of the scaffold crowd, in order to emphasize the difficulties the
Parlement faced in performing public executions, difficulties which it mostly
overcame following Henri IV’s defeat of the League.
On criminal justice in the Parlement of Paris see Alfred Soman, Sorcellerie et

4
justice criminelle: le Parlement de Paris (16e–18e siècles) (Aldershot, 1992) and his articles
cited throughout this chapter. On the Parlement of Paris and royal authority in sixteenth-
century France see Alfred Soman, ‘La Justice criminelle, vitrine de la monarchie française’,
Bibliothèque de l’École de chartes, 153/2 (1995): pp. 291–304; Michel de Waele, Les Relations
entre le Parlement de Paris et Henri IV (Paris, 2000); Sylvie Daubresse, Le Parlement de
Paris ou la voix de raison (1559–1589) (Geneva, 2005); Daubresse, ‘De Paris à Tours, le
Parlement “du Roi” face au Parlement “de la Ligue” (1589–1594)’, in Monique Morgat-
Bonnet, Sylvie Daubresse and Isabelle Storez-Broncourt, Le Parlement en exil, ou histoire
politique et judiciaire des translations du parlement de Paris (XVe–XVIIIe siècle) (Paris, 2007),
pp. 301–536; Marie Houllemare, Politiques de la parole: le Parlement de Paris au XVIe siècle
(Geneva, 2011); Sylvie Daubresse with Bertrand Haan (eds), Actes du Parlement de Paris et
documents du temps de la Ligue (1588–1594): le recueil de Pierre Pithou (Paris, 2012).
Contesting Public Executions in Paris 181
The Execution Ritual
The magistrates of the Parlement carefully structured and recorded the

procedure of the interrogation immediately before execution (‘la question
préalable’) to ensure that executions followed ‘the customary manner’. In their
reports of execution proceedings, the criminal scribes of the Parlement recorded
the contests at the heart of execution rituals in detail.5 Many of these cases
were also reported by the diarist Pierre de L’Estoile (1546–1611), Hearer and
Royal Secretary in the Chancery attached to the Parlement of Paris.6 L’Estoile
was well informed about the conduct of criminal justice in the Parlement and
often composed his reports of executions to compel his colleagues in the court
to perform what he considered to be good justice.7 In his diaries he reported
executions in Paris of over three hundred condemned, selecting rare and curious
cases, or those with clear political significance.8
Interrogations before execution record the magistrates’ attempts to lead the
condemned to redemption by admitting the truth of their crimes and naming
any accomplices. Against these demands the condemned sought to defend their
cause, perhaps in the hope of a pardon, or perhaps to seek justice and redemption
on their own terms. For the Parlement, this procedure served a dual religious
and legal purpose. Beginning with royal legislation of the reign of Charles VI,
it ensured the condemned could confess before execution, and offered a chance
for the magistrates to identify any accomplices and to clarify details of a trial.9
5
Interrogations before execution for this period are held in the Archives nationales de
France, Paris (hereafter AN), X2B 1175 and 1176 (1579–1590), ‘Instructions’, and AN X2B
1330, ‘Procès-verbaux de questions et exécutions’ (1584–1616). On the political problems
of defining ‘custom’ in ceremonial record-keeping see Giora Sternberg, ‘Manipulating
Information: Ceremonial Records, Aristocratic Strategies, and the Limits of the State
Perspective’, The Journal of Modern History, 85/2 (2013): pp. 239–79.
6
‘conseiller notaire et secrétaire du roy et audiencier en la chancellerye de Paris’ is the
title he gave in the contract finalizing the purchase of his house in the parish of Saint André
des Arts: AN MC XXXIX 8, 8 June 1575. See Florence Greffe and José Lothe, La Vie, les
livres et les lectures de Pierre de L’Estoile: nouvelles recherches (Paris, 2002), pp. 95–9.
7
Citing from L’Estoile throughout I have used the edition Mémoires-journaux de Pierre
de L’Estoile, ed. Pierre Gustav Brunet et al., 12 vols (Paris, 1878–1896), hereafter ‘Brunet’.
8
L’Estoile’s reports of the number condemned at executions are often vague and so
evade a precise count. On aspects of his reports of crimes see Tom Hamilton, ‘Pierre de
L’Estoile and his World in the Wars of Religion, 1546–1611’ (unpublished DPhil thesis,
University of Oxford, 2014), pp. 87–123; Diane Roussel, Violences et passions dans le Paris de
la Renaissance (Paris, 2012), pp. 67–81; Friedland, Seeing Justice Done, pp. 132–6; Claudine
Dagnet, ‘Pierre de L’Estoile témoin de la justice criminelle, 1574–1611’ (Master’s thesis,
l’Université Paris-Sorbonne Paris IV, Centre Roland Mousnier, 1977).
9
Jean Imbert, La Practique judiciaire, tant civile que criminelle, receue et observe par tout
le Royaume de France (Villefrance, 1615), p. 745; Claude Le Brun de La Rochette, Les Procès
The magistrates seem to have applied the procedure particularly when the
condemned persistently denied their guilt in earlier interrogations and did not
accept their sentence.10
On the day of the execution, a judge read out the sentence to the condemned
who supposedly submitted before the assembled magistrates, royal prosecutor,
sergeants and the criminal scribe in the chapel of the prison of the Conciergerie.11
Located beneath the criminal chamber of the Tournelle and the great chamber
of the Parlement, the Conciergerie was at the heart of the Palais de Justice,
situated at the western end of the Île de la Cité.12 There the magistrates might
subject the condemned who denied their sentence to a final interrogation in
the questioning room, pressured them to ‘recognize the truth’ of the facts of
their case and thus hope for redemption.13 Before the interrogation began,
the confessor took the condemned aside to examine their conscience.14 Those
leading the interrogations saw themselves as God’s magistrates.15 When Louis
de St Aubin refused to kneel to hear his judgment read and instead protested
his innocence, the magistrates ‘remonstrated with him that the power of judges
and magistrates comes from God, and that he had passed it on to Kings, and
Kings passed it on to judges, and that he was not ignorant of that’.16 Despite the
magistrates’ indignation, many of the condemned continued in their irreverence
at every stage of proceedings.
Since the Parlement proved reluctant to extract confessions using torture,
many of the condemned resisted in the hope of pardon, while some felt confession
civil et criminel (Lyon, 1622), Procès criminel, ii, 152; Esther Cohen, ‘“To Die a Criminal for
the Public Good”: The Execution Ritual in Late Medieval Paris’, in Bernard S. Bacharach
and David Nicholas (eds), Law, Custom, and the Social Fabric in Medieval Europe: Essays in
Honor of Bryce Lyon (Kalamazoo, 1990), p. 295.
10
Le Brun explained that the prisoner or the condemned should only be put to the
question with ‘grandes indices precedents’: Le Brun, Procès criminel, ii, 153, 163. According
to Jean Milles de Souvigny, Praxis criminis persequendi (Paris, 1541), fol. 84v, those who
denied their sentence would be damned.
11
Souvigny, Praxis, fols 83r–84v.
12
Jacques Hillairet, L’Île de la Cité (Paris, 1969), pp. 277–99.
13
For an analysis of the question préalable in the Parlement of Toulouse from 1600 to
1788 see Lisa Silverman, Tortured Subjects: Pain, Truth, and the Body in Early Modern France
(Chicago and London, 2001), p. 81.
14
This moment is indicated in many of the procès-verbaux d’exécution and is out of
earshot for the criminal scribe.
15
Daubresse, Parlement de Paris, p. 306; Houllmare, Politiques de la parole, p. 498.
16
‘Luy ay remonstré que la puissance des juges et magistrats estoit de Dieu qui l’avoit
deferé aux Roys et les Rois commise aux juges et qu’il n’estoit ignorant de cela. Que n’avoit
veu depuis vingt cinq ans aulcun en ceste place qui n’eust rendu plus d’humilité et respect aux
arrests de la cour fussent gentils homme ou autre’. AN X2B 1330, 23 May 1607; Brunet, vol. 8,
p. 299; Stuart Carroll, Blood and Violence in Early Modern France (Oxford, 2006), p. 211.
offered their best chance of reprieve.17 In the despair of an interrogation before

execution, the condemned might continue to dream of a pardon, perhaps
knowing of the rare case of Jean de Poitiers, sieur de Saint-Vallier, who stood
on the scaffold on 17 February 1524, awaiting execution for treason, when a
servant of the chancellor instead brought on horseback the king’s remission
with the cry ‘Holla, holla, stop, stop, here is the king’s remission’.18 It might then
be prudent for the condemned simply to play for time with their inquisitors.19
Two companions accused of multiple thefts and homicide followed opposing
tactics in their interrogation. Mathurin Renault, fruit-seller and soldier in
the armies of the League, denied his sentence on 16 January 1590 but found
himself compromised by his companion Bonaventure Constant. When they
were brought together Renault asked ‘my brother have you confessed?’ and he
found Constant had betrayed him, perhaps tempted by the offer of a reduced
punishment if he would confess and name accomplices.20 The condemned did not
simply prepare for a good death but proceeded tactically in these interrogations.
Claude Barie persisted in his denials and challenged the foundations of the
process. He was arrested for what L’Estoile called ‘undignified words’ upon
leaving midnight mass drunk on Christmas Eve 1596, threatening to kill the
king.21 His words were foolish (‘sottie sottie sottie’), wine had overtaken him,
and the Devil had whispered in his ear. When Barie was told to confess his
crimes in the hope of salvation, the criminal scribe recorded his insistence that
‘the damnation of his soul is not up to the king nor any other person’, and he
eventually asked for pardon in only the most general terms. Barie would wait for
God’s judgment and could not be guilty as he did not have the will to say those
words against the king.22 His excuse of drunkenness was fairly common, but he
went further than his fellow condemned in denying outright the legitimacy of
the Parlement’s procedure.
After the interrogation, the magistrates led the condemned out of the prison
and to the scaffold, where the contest became public. Places of execution all
served as points of communication between the government and the people.
17
On the use of torture see Soman, ‘La Justice criminelle aux XVIe-XVIIe siècles: le
Parlement de Paris et les sièges subalternes’ in Soman, Sorcellerie et justice criminelle, pp. 38–49.
18
Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and their Tellers in
Sixteenth-Century France (Stanford, 1987), pp. 53, 56.
19
As in early modern Naples: Giovanni Romeo, Aspettando il boia: condannati a
morte, confortatori e inquisitori nella Napoli della Contrariforma (Florence, 1993), pp. 52–4.
Thanks to Marco Cavarzere and Stephen Cummins for this reference and discussion on this
point.
20
‘Mon frere as tu confessé?’ AN X2B 1330, 16 January 1590.
21
Brunet, vol. 7, p. 79.
22
‘Au Roy ny a aucune personne soit la damnation de son ame.’ AN X2B 1330,
4 January 1597; AN X2A 959, 4 January 1597.
Criers announced royal edicts at the same sites.23 Most executions took place
at the place de Grève, but the magistrates of the Parlement also used other large
public spaces across the city, notably the Place Maubert, the end of the bridge
of Saint Michel, the market of Les Halles, the square before Notre Dame, the
courtyard before the Palais de Justice, and the city gates. The presence of gallows
established these customary sites of execution in Vassalieu’s 1609 map of the
capital (Figure 1).24 The Parlement sent a number of the condemned back to
their original place of appeal for the sentence to be carried out.25 Certain
executions took place at sites linked to the crime committed by the condemned,
but for the most part the specific site chosen seems to carry little relation to the
crime, perhaps simply since the authorities could best control crowds in large
public squares.26
The condemned were led from the Palais de Justice to the scaffold either
on foot or in a wooden cart, although the exact route to each site is unclear.27
Processions paused at the cathedral of Notre Dame if the shaming, penitential
ritual of the ‘amende honorable’ (‘fine of honour’) was to be performed. Here
the condemned would kneel before the cathedral gate with bare feet and wearing
a white shirt, holding a candle, publicly confessing their crimes.28 To challenge
this procedure was to attack the spiritual authority of the Parlement’s justice.
During his amende honorable on 29 December 1594, the attempted-regicide
Jean Chastel corrected the words of the judgment and defended his actions – he
had not said it was permitted to kill kings, only to kill tyrants – although the
crowd’s cries of ‘Vive le Roy’ drowned him out.29 A week later, the Parlement
23
Jee Su Kim, ‘French Royal Acts Printed Before 1601: A Bibliographical Study’
(unpublished PhD thesis, University of St Andrews, 2008), vol. 1, pp. 41–2.
24
On Vassalieu’s map see Hilary Ballon, The Paris of Henri IV: Architecture and
Urbanism (New York, 1991), pp. 220–33.
25
For example AN X2B 1130, 21 December 1596.
26
Bastien, L’Exécution publique, pp. 126–9, notes the scarcity of this practice in
eighteenth-century Paris. An example of an execution in this period that did take place at the
site of the crime is Brunet, vol. 8, pp. 162–3; AN X2B 220, 12 August 1604.
27
In cases of whipping and banishment the registers of the Conciergerie contain the
summary ‘fustigés nud de verges par tous les carrefours de ceste ville’: Archives de la Préfecture
de Police de Paris (hereafter APP), Registres d’écrous de la Conciergerie du Palais de Justice;
for example AB 11, fols 22r, 45v, 59r, 87r. For routes to sites of execution used at different
points between the fifteenth and eighteenth centuries in Paris see Friedland, Seeing Justice
Done, p. 102; Bastien, L’Exécution publique, pp. 129–33.
28
Friedland, Seeing Justice Done, pp. 96–8, 102, 125–6; Bastien, L’Exécution publique,
pp. 53–8.
29
AN X2A 958, 29 December 1594, following the capitalization in the manuscript;
Brunet, vol. 6, p. 249; H. Fouqueray, ‘Le Dernier Interrogatoire et l’exécution de Jean Chastel
d’après le procès-verbaux inédits’, Études: revue fondée en 1856 par des pères de la Compagnie
de Jésus, 102/1 (1905), pp. 102–3.
Figure 1 Detail of Vassalieu dit Nicolay, Map of Paris, 1609. Wikimedia

Commons. Vassalieu’s map marks sites of execution with gallows
at the place de Grève (centre left), the Place Maubert (top right)
and the Place Saint Michel (centre right). The Palais de Justice and
the cathedral of Notre Dame dominate the Île de la Cité
executed Jean Guignard, the head of the Jesuit Collège de Clermont in Paris,
where Chastel had studied. In his interrogation, Guignard also contested
the sentence of lèse majesté and defended the Jesuits from the Parlement’s
accusations.30 He protested that he could not perform the amende honorable as
the terms of the judgment offended his conscience, despite the scribe’s insistence
that his disobedience would lead to a more rigorous punishment. Guignard
persisted, and sought to convince the crowd of his innocence, saying he knew
nothing of any conspiracy against the king, and had been loyal to him since his
conversion to Catholicism. Guignard called on the people to pray for the Jesuits,
then speaking in Latin commended his soul to God and asked Him to forgive
the executioners.31 Pursuing salvation on their own terms, Chastel and Guignard
confirmed themselves in the eyes of the magistrates as disturbers of the peace
who must be expelled from God’s kingdom on earth.
Those condemned for heresy earlier in the French Reformation disturbed
execution proceedings instead by singing psalms, marking the constancy of their
faith.32 Magistrates mutilated their tongues or stuffed their mouths to prevent
them from doing so.33 Similar occurrences were rare towards the end of the civil
wars, with a remarkable exception: Claude and Radegonde Foucaulde were
executed for heresy at the place de Grève on 28 June 1588.34 Under interrogation
in the criminal chamber both sisters vigorously defended the tenets of their faith
and refused to speak to a confessor.35 Edmund Stafford, the English ambassador,
reported that because of their ‘chearfull countenance and constancie’ on the
route between the Palais de Justice and the Châtelet, a procureur ‘putt gags into
their mouthes, and tydd downe their chinnes thatt theire devotion in lettinge
upp theire eyes wought nott be seene’.36 At the scaffold, members of the crowd
30
The magistrates of the Parlement used the moment of Guignard’s trial to insist on the
expulsion of the Jesuits – identified with the rebellion of the League – from their jurisdiction:
Eric Nelson, The Jesuits and the Monarchy: Catholic Reform and Political Authority in France
(1590–1615) (Aldershot, 2005), pp. 46–55.
31
AN X2A 958, 7 January 1595; Brunet, vol. 7, pp. 4–6; Fouqueray, ‘Le Dernier
Intérogatoire’, pp. 105–6.
32
David El Kenz, Les Bûchers du roi: la culture protestante des martyrs (1523–1572)
(Paris, 1997), pp. 152–7, 166–71.
33
David Nicholls, ‘The Theatre of Martyrdom in the French Reformation’, Past and
Present, 121/1 (1988): p. 63.
34
AN X2B 157, 28 June 1588; Brunet, vol. 3, pp. 120–21, 166; Pierre Fayet, Journal
historique de Pierre Fayet sur les troubles de la Ligue, ed. Victor Luzarche (Tours, 1852),
p. 44. See William Monter, Judging the French Reformation: Heresy Trials by Sixteenth-
Century Parlements (Cambridge, MA, 1999).
35
AN X2A 956, 28 June 1588.
36
Edmund Stafford to Francis Walsingham, 21 May 1588, British Library, ms. Harley
288, fols 196–7.
rushed ‘in animated fury’, according to L’Estoile, to cut the cord hanging one
of the Foucaulde sisters so that she would not die quietly but fall into the
flames below and burn alive.37 Their case seems to have more in common with
contested executions of heretics in the years before the outbreak of the civil wars,
and repeats an earlier pattern of ritual violence.38 Such was their notoriety, they
appear late in the martyrologies of the Reformed faith, during the ‘autumn of
the Church’, in Agrippa d’Aubigné’s phrase.39
Degrees of clemency and flexibility underlay the apparent rigours of the
execution procedure. The Parlement executed the majority of the condemned by
hanging, a small number by decapitation and quartering, and others by breaking
on the wheel or apparently by ‘burning alive’. In these latter cases the magistrates
usually applied a ‘retentum’ clause, a further instruction withheld from the main
body of the sentence that was read aloud, ensuring that the condemned were
quietly strangled before the gruesome punishment was carried out in public.40
The Parlement executed in effigy those criminals who could not be apprehended,
including in March 1595 several former members of the Paris Sixteen, the radical
group of Leaguers who had taken over the civic administration following the
Day of the Barricades on 12 May 1588.41 Often the Parlement ordered the bodies
of the condemned to be taken from the scaffold to the gibbet at Montfaucon,
where they could be seen by those passing along the roads leading north out of
Paris, and then buried there.42 François Perrichon, the penitent murderer and
League militiaman, instead pleaded for burial on consecrated ground, and the
criminal scribe said he would ‘ask pardon of the counsel and promised to do all
he could’.43
37
‘par la fureur du people animé, qui coupa la corde avant qu’elle fut estranglée et jetta
dans le feu’. Brunet, vol. 3, p. 166; Simon Goulart’s addition to Jean Crespin’s Histoire des
martyrs persecutez mis a mort pour la verité de l’Evangile, depuis le temps des Apostres jusques
l’an 1597 (Geneva, 1597), fol. 757r, reports that the executioner cut the cord early at the
instigation of the crowd.
38
Natalie Zemon Davis, ‘The Rites of Violence’, in Natalie Zemon Davis, Culture and
Society in Early Modern France (Stanford, 1975), pp. 162–3.
39
Agrippa d’Aubigné, Les tragiques in Oeuvres, ed. Henri Weber (Paris, 1969),
pp. 146–7 (verses 1234, 1257–84).
40
Soman, ‘La Justice criminelle aux XVIe-XVIIe siècles’ in Soman, Sorcellerie et
justice criminelle, 32; Alfred Soman, ‘Sorcellerie, justice criminelle et société dans la France
moderne (l’ego-histoire d’un Américain à Paris)’, Histoire, économie et société, 12/2 (1993):
pp. 200–201.
41
APP AB 11, fol. 196r. On executions of effigies see Carroll, Blood and Violence,
pp. 207–208; Friedland, Seeing Justice Done, pp. 107–12.
42
Jacques Hillariet, Gibets, piloris et cachots du vieux Paris (Paris, 1956), chapter 3.
43
AN X2B 1130, 9 August 1589.
At the scaffold, the executioner called for silence and the scribe proclaimed
the judgment.44 The magistrate in charge of the case and the confessor then
submitted the condemned to redoubled physical and moral pressure to confess.
Sometimes they once again confronted the condemned with their accusers or
accomplices, urging them to ask for pardon.45 Laurent Gervasion, known as ‘La
Fortune’, condemned for theft and homicide, underwent torture on the scaffold
by breaking on the wheel, where he cried vengeance against the executioner
and his accusers until he made a partial confession.46 L’Estoile often composed
his reports to promote an ideal of good justice, and he could not disregard
Gervaison’s protests, insisting that his crimes were ‘execrable’ and that he was
a ‘poor wretch’, surely damned.47 This response indicates how office-holders in
the Parlement might try to explain away denials on the scaffold, which were
‘not worthy of a Christian about to die’, as further proof of the tainted soul of
the condemned.
After these shaming rituals, the confessor once again intervened to prepare
the condemned for their salvation.48 He usually came from the parish of Saint
Barthélemy, across the road from the Palais de Justice.49 Jehan de La Fosse, priest
of the parish, reported in his diary his role in the preparation for execution of
the advocate in the Parlement, François Le Breton, condemned on 22 November
1586 after publishing that year his Remonstrances aux trois estats de la France.
La Fosse wrote that ‘one going to die must have good words in his mouth and
he must take a good part in the admonition that one makes to him’. Le Breton
persisted in denying his guilt and he was led to the scaffold in the courtyard
of the Palais de Justice to prevent a crowd gathering. There he was refused a
44
The procedure is described in Imbert, Pratique judiciaire, pp. 744–8. The executioner
was considered a social outcast – Friedland, Seeing Justice Done, pp. 71–85 – and his name
was invoked in slanderous poems calling for the death of a rival – Brunet, vol. 2, p. 278;
vol. 3, pp. 111, 127; vol. 5, p. 39. The executioners in Paris in this period were Jean Rouseau
(from 1558 to 1594) and Jean Guillaume (from 1594 to 1620): Danielle Demorest and
Michel Demorest, Dictionnaire historique et anecdotique des bourreaux (Paris, 2007),
pp. 172–4, 273–5.
45
For example AN X2B 1330, 16 January 1590; X2B 1330, 6 May 1600; Soman
Collection.
46
AN X2B 1330, 5 April 1607; Carroll, Blood and Violence, p. 211.
47
48
On the role of the confessor in later seventeenth- and eighteenth-century Paris see
Bastien, L’Exécution publique, pp. 163–203, and for the distinct case of early modern Italy
see Romeo, Aspettando il boia; Nicolas Terpestra (ed.), The Art of Executing Well: Rituals of
Execution in Renaissance Italy (Kirksville, 2008).
49
Claude-Estienne Nouvalet, priest of Saint Barthélemey and Saint-Leu-Saint-Giles
was paid 5½ écus for assisting at the execution of 11 of those condemed between 1 June 1597
and 1 June 1598, and 25 écus for celebrating masses in the Conciergerie every Sunday and
feast day over the same period: AN X2B 184, 23 June 1598, Soman Collection.
dying speech. When his body was taken to Montfaucon, members of the crowd
took relics and League preachers pronounced him a martyr for their cause.50
The curate Maurice Poncet had more success when he elicited a conversion on
the scaffold from the Huguenot nobleman and veteran of the civil wars Pierre
Desguetz, sieur de Belleville, executed for lèse majesté on 1 December 1584
for circulating seditious libels against the king.51 On the scaffold the confessor
called on him to renounce the ‘false opinion that he had held until now’ and
urged him to repeat a Catholic declaration of faith, which he did.52 Confessors
were integrated into the procedures of the Parlement but could not be relied
upon any more than the criminal scribe to solicit a repentant dying speech from
the condemned.
Finally, the confessor sang the Salve Regina to the condemned, offering
hope of salvation through Marian intervention.53 Reports of interrogations
before execution then sign off with the words ‘the sentence was executed’. Public
executions in these terms concluded uncontested, a shaming ritual in this life
that offered a chance for redemption in the next.54 While executions served
as a ‘political tactic’ that the magistrates tried to control, the tactic could also
be appropriated by the condemned.55 In their dying speeches, the condemned
might make dignified polemical statements that disputed the Parlement’s ideal
of justice, often in the hope of a pardon, and in certain exceptional cases of lèse
majesté their protests made a direct impact in the politics of the Wars of Religion.
50
APP AB 10 fol. 2v; Bibliothèque nationale de France (hereafter BnF) ms. Dupuy
137, fols 107r–110r; Brunet, vol. 2, pp. 358–9; Jehan de La Fosse, Les ‘Mémoires’ d’un curé
de Paris (1557–1590) au temps des guerres de religion ed. Marc Venard (Geneva, 2004),
p. 153; Jacques-Auguste de Thou, Histoire universelle de Jacques-Auguste de Thou depuis 1543
jusqu’en 1607, 16 vols (London, 1734), vol. 9, pp. 613–15; Fayet, Journal, pp. 33–4; Frederic
J. Baumgartner, Radical Reactionaries: The Political Thought of the French Catholic League
(Geneva, 1976), pp. 76–9.
51
For the judicial consequences of publishing seditious libels see Tatiana Debaggi
Baranova, À coup de libelles: une culture politique au temps des guerres de religion (1559–1598)
(Geneva, 2012), pp. 50–54.
52
AN X2B, 1176, 1 December 1584, Soman Collection; Brunet, vol. 2, pp. 174–5;
BnF ms. Dupuy 137, fols. 74–5; Fayet, Journal, p. 31; De Thou, Histoire universelle, vol. 9,
201–2.
53
Bastien, L’Exécution publique, pp. 166–76, 210.
54
Bastien, L’Exécution publique, p. 203.
55
Foucault, Discipline, p. 23; Peter Lake with Michael Questier, The Antichrist’s Lewd
Hat: Protestants, Papists and Players in Post-Reformation England (New Haven and London,
2002), p. 269.
Criminal Justice in the Parlement during the Troubles of the League
The Parlement of Paris was the highest court in the French kingdom and heard
most cases on appeal. It upheld the rigours of the law and offered the benefits
of royal clemency. The barrister Louis Servin, in an audience of the criminal
chamber in January 1586, claimed that ‘the Parlement established in this city
[of Paris] is like a sanctuary and represents the cities of refuge to which the
children of God withdrew when they were pursued’.56 Appeals to the Parlement
were granted to those condemned in a subordinate court to a death sentence or
torture, and that subordinate court then financed the appeal and provided an
officer to lead the prisoners to the Parlement.57
Following this ambitious claim, the near collapse of the Parlement’s ability
to administer justice during the troubles of the League is remarkable and calls
for explanation. Table 1 demonstrates the impact of the troubles of the League
on the practice of criminal justice in the Parlement, setting a count of appeals
to and death sentences confirmed by the Parlement of Paris in criminal cases in
the years from 1 January 1588 until 31 December 1594 against the 12 months
surrounding the massacre of Saint Bartholomew on 24 August 1572 and the
assassination of Henri IV on 14 May 1610.58
In the final stage of the civil wars, both the number of appeals to the Parlement
in criminal cases carrying death sentences and the number of death sentences
confirmed in the Parlement fell dramatically, as did the number of appeals from
outside Paris, but activity in the court recovered quickly on all counts. Political
circumstances explain both the disorder and its resolution. The magistrates
of the Parlement in these years split as some remained in Paris, while others
left to join the royalist Parlement at Tours, opened on 23 March 1589 in the
presence of Henri III.59 Judicial activity at Tours increased steadily, particularly
after January 1590, just as appeals to Paris began to decline dramatically.60 The
Alfred Soman and Yves Marie Bercé, ‘Les Archives du Parlement de Paris dans
56
l’histoire’, Bibliothèque de l’École des chartes, 153/2 (1995): pp. 267–9 for a detailed survey
of the regional variety of appeals to the Parlement, and p. 265 for the quotation; Soman, ‘La
Justice criminelle, vitrine de la monarchie française’.
57
The relationship between legislation and practice is of course complicated. See
Soman and Bercé, ‘Les Archives du Parlement’, pp. 260–61.
58
Alfred Soman found that these registers contain references to 88.7 per cent of the
cases of witchcraft in the Parlement of Paris in the sixteenth and seventeenth centuries:
Alfred Soman, ‘Petit Guide des recherches dans les archives criminelles du Parlement de Paris
à l’époque moderne’, Histoire et archives 12/1 (2002): p. 67.
59
Daubresse, ‘De Paris à Tours’, p. 535.
60
Daubresse, ‘De Paris à Tours’, pp. 306, 385–6; Waele, Le Parlement de Paris, pp. 182–90.
These studies follow principally the registers of the great council of the Parlement of Tours.
Its surviving criminal archives are fragmentary.
Table 1 Appeals to and death sentences confirmed by the Parlement of

Paris in criminal cases, 1572–1610a
Year Total % of appeals Appeals Death L’Estoile’s

appeals from within carrying sentences reports
Parisb death confirmed
sentences
12 months 567 28 122 64 —
1572–1573
1588 473 23 160 79 5
1589 150 41 55 29 8
1590 76 68 28 9 7
1591 29 93 15 11 18
1592 28 79 7 6 4
1593 73 11 52 33 1
1594 248 18 114 53 9
12 months 590 25 167 82 5
1609–1610
a
For 1588–1594: APP AB 10–11. For 1572–1573 and 1609–1610: Soman and Bercé, ‘Les
Archives du Parlement’, pp. 271–3. For comparable statistics with a different focus see Robert
Muchembled, ‘Fils de Caïn, enfants de Médée: homicide et infanticide devant le Parlement
de Paris (1575–1604)’, Annales: Histoire, Sciences Sociales, 62/5 (2007): pp. 1065–83.
b
The prisons of the Châtelet, For-l’Évêque, Sainte-Geneviève, Saint-Germain-des-Près
and Saint-Lazare.
1590 siege of Paris and the presence of the armies of the king and the League
across the jurisdiction of the Parlement surely further discouraged subordinate
courts from sending appeals to the capital. Parties in civil suits excused their
suspiciously convenient absence from hearings in the Parlement with reference
to the ‘soldiers, tramps, thieves, and look-outs on the roads’, or even with stories
of their imprisonment by the armies of the opposing party.61 Subordinate
criminal courts would perhaps have taken these threats seriously, for fear of
losing control of their prisoners.62 Appeals in criminal cases that did arrive at
the Parlement in these years overwhelmingly came from within Paris, usually
the court of the Châtelet. Historians have identified the rule of the League in
Emeline Dalsorg, ‘Rendre la justice au Parlement de Paris sous la Ligue (1589–1594):
61
Procédure civile et conciliation’ (unpublished thesis for the Diplôme d’archiviste paléographe
of the École nationale des chartes, 2008), pp. 142–3.
62
Most of the archives of subordinate courts in the late sixteenth century have been
lost. For an analysis of the exceptional records of the seigniorial court of Saint-Germain-des-
Près see Roussel, Violences et passions.
Paris with summary public executions, above all that of the premier président
of the Parlement, Barnabé Brisson along with the conseiller in the Parlement
Claude Larcher and the conseiller in the Châtelet Jean Tardif on 15 November
1591.63 In the extraordinary circumstances of that year L’Estoile records more
executions than were confirmed by the Parlement.
Starved of the justice of the Parlement, appellants in criminal cases began to
return to the court in late August 1593. On 24 July news of Henri IV’s conversion
to Catholicism was announced in Paris, followed on 1 August by news of a
three-month truce between the armies of the king and the League.64 In the week
following the significant return of appeals on 21 August, appellants were brought
from Orléans (4), Beauvais (4), Reims (3), Troyes (5) and elsewhere – all League-
held towns65 – and on 16 September came nine appellants from League-held
Bourges, the largest group from any particular location in this first month after
the widespread return of appeals.66 Most of these appellants received decisions
within a matter of weeks. While 5 death sentences were confirmed by the
Parlement from January to the end of July 1593, 28 more were confirmed before
the end of the year. Appeals dropped again once the truce ended, returning
in significant numbers after Henri IV entered Paris on 22 March 1594 and
re-established the sovereignty of the Parlement of Paris five days later. The wars of
the League then had disrupted the working of criminal justice in the Parlement
of Paris, but it recovered quickly after Henri IV’s conversion and maintained
institutional continuity.
Responses from the Crowd
How were these executions received by the scaffold crowds? Contemporary

reports referring simply to the presence of ‘le peuple’ leave the size and
composition of scaffold crowds impossible to determine, but the sites of
execution had great capacity. ‘An unbelievable multitude of people’ awaited the
execution of the duc de Biron on 31 July 1602 at the place de Grève and before
the Bastille, which eventually – perhaps therefore – proceeded behind closed
doors.67 The office-holders in the Parlement treated these crowds as a passive
63
Elie Barnavi and Robert Descimon, La Sainte Ligue, le juge et la potence: l’assassinat
du président Brisson (15 novembre 1591) (Paris, 1985), pp. 189–92; Robert Descimon,
‘La Ligue: des divergences fondamentales’, Annales: Économies, Sociétés, Civilisations, 37/1
(1982): pp. 125–6.
64
Brunet, vol. 6, pp. 64–5, 77; Jean-Marie Constant, La Ligue (Paris, 1996), pp. 422–4.
65
S. Annette Finley-Croswhite, Henry IV and the Towns: The Pursuit of Legitimacy in
French Urban Society, 1589–1610 (Cambridge, 1999), p. 64.
66
APP, AB 11, fols 99r–101v, 104v–105r.
67
audience that should be deterred from crime by the terrors of exemplary justice.
L’Estoile wrote that the crowd would ‘ordinarily’ judge criminals ‘by the length
of their noses’, but his reports also show that their responses to executions were
unpredictable, and above all they demanded to see justice done.68
Sometimes spectators supported the Parlement’s judgment and encouraged
harsher penalties.69 On other occasions the crowd took pity on those who
seemed too young, or those condemned by an especially arbitrary sentence.70 At
the execution of Bartholomaeo Bourgueso, accused of claiming to be the son of
the Pope – although ‘he denied it until the end’ and was ‘strongly resilient and
constant’ – the crowd muttered that if the court hanged all the sons of priests
then the scaffolds in Paris would not contain them.71 Some crowds instead
pressed their concerns to the condemned, and at the execution of the royal
secretary Jean Trimel on 5 October 1591, condemned for conspiracy against
the League, certain spectators called on him to name his accomplices.72 Most
damning of all, the crowd responded to the Leaguers’ summary execution of
Brisson, Larcher and Tardif with scathing silence, and this misstep by the Paris
Sixteen revealed that they could no longer rely on the support of Parisians in
their struggle against the ‘Politique’ supporters of Henri IV.73
Historians of early modern public executions have debated the ‘carnivalesque’
nature of scaffold crowds and their propensity for unruly behaviour, even
overturning courts’ judgments.74 L’Estoile mentions just one occasion when
members of the crowd rose up to overturn the decision of the Parlement, the
execution of Claude Touart for abduction (‘rapt’) in 1582, and in this complex
case even L’Estoile thought that ‘the judgment was iniquitous’. Perhaps both
68
Brunet, vol. 9, p. 166; Friedland, Seeing Justice Done.
69
70
71
Brunet, vol. 9, pp. 166–7.
72
Brunet, vol. 5, pp. 114, 147; Fayet, Journal, p. 107; Barnavi and Descimon, Le Juge
et la potence, pp. 199–200. His arrêt – AN X2B 165, 5 October 1589 – ordered the question
préalable but this document does not survive.
73
Descimon and Barnavi, Le Juge et la potence, p. 25.
74
Foucault, Discipline and Punish, pp. 59–65; Thomas W. Laqueur, ‘Crowds, Carnival
and the State in English Executions, 1604–1868’, in A.L. Beier, David Cannadine and
James M. Rosenhem (eds), The First Modern Society: Essays in English History in Honour
of Lawrence Stone (Cambridge, 1989), pp. 305–55. The number of revolts among the
scaffold crowd in the eighteenth century was generally small – Bastien, L’Exécution publique,
p. 128; Richard J. Evans, Rituals of Retribution: Capital Punishment in Germany, 1600–1987
(Oxford, 1996), p. 84 – but disturbances posed problems that the authorities in London
tried to resolve by carrying out executions outside the prison walls – Simon Devereaux,
‘Recasting the Theatre of Execution: The Abolition of the Tyburn Ritual’, Past and Present,
202/1 (2009): pp. 127–74.
L’Estoile and the crowd felt that Touart merited a last-minute pardon. Two
sergeants of the Parlement were killed and several wounded in the tumult
beneath the scaffold. The next month, the Parlement hanged as an exemplar
Robert Duval ‘for causing a popular uprising, sedition, rebellions, insolences
and violence, rescue and abduction committed at the execution of Claude
Tonnard [sic]’. L’Estoile reported that Duval had a doubtful link to the affair.
To avoid a repeat performance, on the day of Duval’s execution the Parlement
ordered the commissaires of the Châtelet to search the houses close to the site of
the disturbances and warn the inhabitants not to receive anyone carrying arms.75
As this singular case shows, the sergeants who stood guard at executions had
reason to regard the crowd with unease, but they maintained public order at the
scaffold more often than not.
The condemned often addressed the crowd to ask for forgiveness, both
from the wooden cart at the place of execution and on the scaffold. This was a
moment for collective overcoming.76 L’Estoile related that the crowd felt ‘great
relief ’ at the execution of the notorious thief Pontaut, who had spent three years
in the Conciergerie.77 Printed accounts of crimes and executions might include
an exhortation from the condemned to the crowd to learn from the example
of their crimes. 78 Such a dying speech is rare among the interrogations before
execution or in L’Estoile’s diaries. An apparent exception is Marguerite de
Tourlaville, who on the scaffold called out to her brother, with whom she was
accused of committing adultery and incest, ‘Take courage my brother; console
yourself in God. We have well merited death.’ Earlier both she and her brother
Julien denied the sentence and hoped for a pardon. However, Marguerite and
Julien confessed towards the end of their interrogation only in general terms,
evading the specific charge of incest, and they did so following an assurance that
they would be withheld from further punishment if they confessed.79 These
75
‘pour raison de l’emotion populare, sedition, rebellions, insolences et viollances,
recousse et enlevement faictz à justice de la personne de Claude Tonnard, condamné à
mort’. AN X2B 121, 15, 16, 17 October 1582, Soman Collection; Brunet, vol. 2, pp. 84–7;
La Fosse, Mémoires, pp. 145–6; Robert Muchembled, Passions de femmes au temps de la Reine
Margot, 1553–1615 (Paris, 2003), pp. 99–101.
76
Friedland, Seeing Justice Done, p. 110.
77
‘au grand soulagement du peuple’. Brunet, vol. 2, p. 165.
78
Jean-Claude Arnould, ‘Le juge et le criminel dans les “canards” (1574–1610)’, in Jean-
Claude Arnould (ed.), Juges et criminels dans la narration brève du XVIe siècle: volume d’études
préparé au cours du séminaire tenu à Rouen les 25 et 26 février 2010, http://ceredi.labos.univ-
rouen.fr/public/?le-juge-et-le-criminel-dans-les.html (accessed 1 June 2014); J.A. Sharpe,
‘“Last Dying Speeches”: Religion, Ideology and Public Execution in Seventeenth-Century
England’, Past and Present, 107/1 (1985): pp. 144–67.
79
‘Mon frère, prenez courage. Consolez vous en Dieu. Nous avons bien merité la mort.’
AN X2B 1330, 2 December 1603; Brunet, vol. 8, p. 108.
reassurances had the desired effect. With an imprecise, theatrical confession on

the scaffold as the conclusion to a scandalous case, it is not surprising that their
history led to a much recycled pamphlet that glossed over the complications of
their interrogation.80
Like Marguerite de Tourlaville, the condemned appealed for pardon in
general terms even when they did not accept their sentence. Claude Barie
denied his sentence and entrusted his salvation to God, but still asked pardon
from everyone present for his sins.81 Laurent Gervaison asked for pardon from
a man in the crowd, with no suggested link to the crime committed.82 Crowds
responded to their calls. Reports of interrogations before execution mention
that the crowd joined in the singing of the Salve Regina.83 These events indicate
the persistence of late medieval understandings of the necessity of a well-
received public confession before execution, hoping for the eventual salvation
of the condemned.84 Public dying speeches of the condemned were routinely
suppressed by the mid-seventeenth century, and thereafter the confessor alone
heard the confession of the condemned.85 The persistence of public confession
in the late sixteenth and early seventeenth centuries ensured that elements of
solemnity and collective overcoming were part of the crowd’s experience of
executions, despite the contests at the centre of proceedings.
Responses to the extraordinarily brutal execution of François Ravaillac
demonstrate that the crowd not only wanted to see justice done to Henri IV’s
assassin, but also tried to participate themselves. According to L’Estoile, when
Ravaillac left the Conciergerie there was a ‘great concourse and swelling of
people, cruelly animated and bloodthirsty’, and ‘everyone wanted to get their
hands on him; men, women, and even little children’. Courtiers stood in the
Hotel de Ville to watch the execution in the place de Grève from a distance.
The English diplomat William Becher stood too far from the scaffold to hear
clearly, and so verified Ravaillac’s words with ‘some who were very neere him’.
80
‘Supplice d’un frère et soeur décapités en Grève pour adultère et inceste’, reproduced
in Maurice Lever, Canards sanglants: naissance du fait divers (Paris, 1993), pp. 103–10. The
original pamphlet was published in Paris by Philippe du Pré in 1604. Their history and
legend is discussed in Tancrède Martel, Julien et Marguerite de Ravalet (1582–1603): une
drame passionnel sous Henri IV (Paris, 1920); Muchembled, Passions de femmes, pp. 221–34,
276–7.
81
AN X2B 1330, 4 January 1597.
82
83
Common expressions of this phenomena include ‘este chanté ung salve regina par
le peuple’ in AN X2B 1176, 12 May 1584; and ‘l’on a chanté salve regina en la maniere
accoustumé’ in AN X2B 1330, 2 December 1603.
84
Cohen, ‘Execution Ritual’, p. 294; Michel Bee, ‘Le spectacle de l’exécution dans la
France d’Ancien Régime’, Annales: Économies, Societés, Civilisations, 38/4 (1983): p. 849.
85
Bastien, L’Exécution publique, pp. 173–6.
He nevertheless saw that ‘the people did exceedingly applaude his torments, and
there was much adoe through theyre rage to bring him alive to the execution,
and after his death they did in part satisfy theyre rage on his members, dragging
them in great fury about the towne’.86
Distancing himself from the passionate crowd, L’Estoile did not indulge in re-
enactments of the torments inflicted on Ravaillac, leaving this to contemporary
printed representations.87 Prints supportive of the Parlement’s judgment
celebrated the report of the crowd’s vengeful violence, which might have been
tacitly permitted by the sergeants. L’Estoile reported the printing of Ravaillac’s
judgment and suggested his torments were intended to stop people physically
enacting vengeance against the condemned, so that witnessing the spectacle
of violence could compensate for missing out on the act.88 In a contemporary
illustration by Jean Ziarnko (Figure 2), the gruesome image is itself pulled apart
and its action quartered into scenes situated around Ravaillac’s limbs, repeating
his punishments with every viewing. Beyond his tortured scream, Ravaillac’s
facial features are barely discernible, and his body is a site of escalating stages of
punishment.89 This is the extraordinary image of Ancien Régime criminal justice
that the Parlement repeated only once, in Damiens’s execution in 1757, which in
Michel Foucault’s anachronistic reconstruction serves to ‘define a certain penal
style’.90 Aware of the exceptional nature of this punishment, L’Estoile recounted
the scene of Ravaillac’s death with magisterial distance, composing an anatomy
of the crowd that legitimated the Parlement’s judgment and its apparently
successful defence of royal authority.91
As this chapter has shown, state-directed criminal justice failed to resolve, and
even perpetuated, the conflicts that divided France towards the end of the Wars
of Religion. The criminal chamber of the Parlement could not entirely contain
dissent in the ritual procedure of its public executions, let alone throughout its
86
William Becher to Robert Cecil, 20 May 1610, The National Archives, Kew, State
Papers, 78/56, fol. 136r–v.
87
Arrêt de la Cour de Parlement, contre le tresmeschant parricide François Ravaillac
(Lyon, 1610), pp. 4–6; Supplice, mort, et fin ignominieuse du parricide inhumain, & desnaturé
François Ravaillac (Lyon, 1610), pp. 6–7; Discours véritable sur la mort de François Ravaillac,
executé à Paris le 27 May, pour le cruel & detestable parricidie par luy commis en la personne de
Henry IIII Roy de France et Navarre (Lyon, 1610), p. 8. Ravaillac’s procès verbal d’exécution is
printed in Mémoires de Condé (La Haye, 1743), vol. 6, pp. 236–8.
88
89
The full broadsheet engraving is available via Gallica: http://gallica.bnf.fr/
ark:/12148/btv1b8401557w (accessed 1 June 2014). Compare with Valentin Groebner,
Defaced: The Visual Culture of Violence in the Late Middle Ages, trans. Pamela Selwyn (New
York, 2004), pp. 103–4.
90
Foucault, Discipline and Punish, p. 7.
91
Brunet, vol. 10, pp. 255–61.
Figure 2 Detail of Figure représentant le supplice & exécution de l’arrest

de mort donné contre le très-meschant, très-abominable & très
détestable parricide Ravaillac le 27 May 1610, engraving by Jan
Ziarnko, published by Jean Le Clerc (Paris, 1610). Bibliothèque
nationale de France
jurisdiction. Its authority depended on the willing submission of appellants, who

in these years were torn between the Parlement of the League in Paris and the
royalist Parlement in Tours.92 Following Henri IV’s conversion to Catholicism
and his subsequent political success, the magistrates of the Parlement proved
much more effective at restricting disturbances to their customary procedure,
inscribed in the increasingly abundant records of interrogations before
execution. Criminal scribes, diarists, and the authors of crime pamphlets did
their best to bury conflicts over events on the scaffold and instead make them
conform to the magistrates’ ideals of good justice. Nevertheless, the inherent
difficulty of stage-managing the ritual of public executions meant that some
disturbances were inevitable. The unpredictable behaviour of the condemned and
For comparable approaches to state-directed conflict resolution – ‘top-down’

92
(monopoly of violence), ‘from the middle’ (intervention in factional disputes) and ‘bottom-up’
(consumer-driven) – see the chapters by Marco Cavarzere and Gabriella Erdélyi in this volume.
(more rarely) the scaffold crowd could undermine the spectacle of good justice
that the court, its record-keepers, and publicists worked to convey for posterity.
By focusing on the ideal rather than the practice of justice in early modern
criminal courts, historians have exaggerated the capacity of state institutions to
resolve disputes. Instead these disputes must be situated in cultures of conflict
resolution throughout early modern society, in this case the conflicts at the end
of the Wars of Religion.
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Chapter 8
Contested Coexistence: Lay–Clerical
Disputes and their Settlement in the Late
Medieval Hungarian Countryside
Gabriella Erdélyi
The marked rise of central courts of law in late medieval Europe demanded
explanation from historians. By now it is a generally shared view that the
ordinary users of courts contributed to this process. Reflections, however, on
the issue of what late medieval and early modern litigants expected from courts
are extremely varied. Charles Duggan, a leading historian of medieval justice,
has argued that the massive use of papal appellate courts ‘was a reflection of a
widespread desire to substitute lawful process for arbitrary judgment: to place
authority of the law above that of the person. Appeals to the Roman curia
offered a relief from oppression, bias, or illegality, whether real or imagined.’1
In this narrative ‘law of the person’, ‘arbitrary judgment’ and ‘illegality’ are
allusions to the unpredictable, often random violence of the outside world,
which people were eager to exchange for the peace and rational proceedings
of courts.2 It has been also suggested that people gradually resorted to the use
of courts not autonomously, but rather under the pressure of the state, a state
monopolizing the control of violence.3
The binary opposition of law and violence, tied to the Enlightenment ethos
of reason versus emotion, had an enduring influence on historiography through
the work of nineteenth-century and inter-war writers such as Jacob Burckhardt,
Johan Huizinga and Norbert Elias who were preoccupied with the origins of
1
Charles Duggan, ‘Papal Judges Delegate and the “New” Law’, in Thomas N. Bisson
(ed.), Cultures of Power: Lordship, Status and Process in Twelfth-Century Europe (Philadelphia,
1995), pp. 172–99, esp. 194–5. The present study was prepared within the framework of a
research project funded by the Hungarian National Research Fund (OTKA-81435) and was
supported by the Bolyai fellowship of the Hungarian Academy of Sciences.
2
See also Paul Hyams, ‘Due Process versus the Maintenance of Order in European
Law: The Contribution of the ius commune’, in Peter Coss (ed.), The Moral World of the Law
(Cambridge, 2000), pp. 62−90, esp. 76−8.
3
Otto Brunner, Land and Lordship: Structures of Governance in Medieval Austria
(Philadelphia, 1992; German edn 1939), pp. 29−30.
modern Western civilization.4 Huizinga’s powerful characterization has deeply

ingrained the modern historical imagination of the late Middle Ages:
So violent and motley was life, that it bore the mixed smell of blood and roses. The
men of that time always oscillate between the fear of hell and the most naïve joy,
between cruelty and tenderness, between harsh asceticism and insane attachment
to the delights of this world, between hatred and goodness, always running
to extremes.5
In Marc Bloch’s vision of ‘feudal society’, war, murder and everyday acts of
violence cast their shadow over everything, which reinforced the emotional
instability and sense of perpetual insecurity and anguish of the time.6 In the
post-war period intense emotions became symptoms of barbarity. In this
narrative, the chief and overriding aim of early modern state building was the
monopolization and control of violence.7 This ‘process of civilization’ thus
included the making of central courts of law whose burden it was to see that
emotions were finally suppressed.
In contrast, the viewpoint that emerges from the extensive literature of
legal anthropology invokes a bottom-up perspective which takes seriously
the viewpoints of contemporary actors. From this preferred viewpoint of the
cultural history of violence and the extended case studies of social conflicts, the
opposition of violence and law is smoothed into an uninterrupted continuity.
Probably the most influential present-day historian who deals with the history of
4
violence and crime in pre-modern Europe from this evolutionary perspective is Pieter
Spierenburg. See for example his A History of Murder: Personal Violence in Europe from the
Middle Ages to the Present (Cambridge, 2008) or Violence and Punishment: Civilizing the
Body through Time (Cambridge, 2013). Jacob Burckhardt, The Civilization of the Renaissance
in Italy (London, 1965; first edn in German, 1860); Norbert Elias, Über den Prozeß der
Zivilisation: Soziogenetische und psychogenetische Untersuchungen, 2 vols (Basel, 1939).
On the approach and vision of the Middle Ages by the historiography of Romanticism and
Idealism see Walter Kudrycz, The Historical Present: Medievalism and Modernity (London,
2011), pp. 55–80.
5
Johan Huizinga, The Waning of the Middle Ages: A Study in the Forms of Life, Thought
and Art in France and the Netherlands in the XIVth and XVth Centuries (New York, 1967;
Dutch edn 1919), p. 18.
6
Marc Bloch, Feudal Society, Vol. 1, The Growth of Ties of Dependence, trans.
L. A. Manyon (Chicago, 1961; first edn 1939), p. 73.
7
The most trenchant formulation of this thesis is by Elias, whose reception falls in
the post-war period. Elias, Über den Prozeß. On Elias and his academic reception see Martin
Dinges, ‘Formenwandel der Gewalt in der Neuzeit: Zur Kritik der Zivilisationstheorie von
Norbert Elias’, in Rolf Peter Sieferle and Helga Breuninger (eds), Kulturen der Gewalt:
Ritualisierung und Symbolisierung von Gewalt in der Geschichte (Frankfurt am Main, 1998),
pp. 171–94.
Contested Coexistence 205
Here the analysis of trial records produces vivid narratives of a culture of honour,
in which both lawsuits and violence appear as social practices regulated by custom
and law, as alternative strategies within the process of conflict negotiation. Both
violence and litigation seem to have served to publicize social relations and to
display emotions, from which actions followed. In other words, people did not
expect courts to settle their conflicts, as reflected also by the fragmented nature
of court records. Rather, they entered the courtroom as another field of social
competition where their reputation was at stake. Feuds, duels and disputes were
likewise performative acts staging rivalries for legitimacy.8 From this perspective,
the conclusion also differs and places ordinary actors centre stage: late medieval
people gradually appropriated the courts, using them as another venue to pursue
their enmities.9 As a result, however, through the everyday practices of state
officials and judges involved in local conflicts, the state could extend its control
of violence, and this social demand made it further develop its system of courts.10
The present study, through the close reading of petitions of pardon to the
Pope, aims to open a new window onto the disputes of late medieval people.11
Ordinary people sought remedy for their problems at the office of the Apostolic
8
It must suffice here to mention but a few works from the extensive literature, first
of all the landmark collective volume edited by John Bossy, Disputes and Settlements: Law
and Human Relations in the West (Cambridge, 1983). For a later overview of approaches,
theories and themes see Andreas Blauert and Gerd Schwerhoff (eds), Kriminalitätsgeschichte:
Beiträge zur social- und Kulturgeschichte der Vormoderne, Konflikte und Kultur: Historische
Perspektiven, 1 (Konstanz, 2000). A more recent account is Stuart Carroll, Blood and
Violence in Early Modern France (Oxford, 2006). For further discussion on the culture of
honour, see Christian Kühner’s chapter in this volume.
9
On the strategic use of courts see most importantly Daniel Lord Smail, The
Consumption of Justice: Emotions, Publicity, and Legal Culture in Marseille, 1264−1423
(Ithaca and London, 2003). On the performative nature of late medieval and early modern
justice and their appropriation by ordinary litigants see also Thomas Kuehn, Law, Family,
and Women: Toward a Legal Anthropology of Renaissance Italy (Chicago, 1991); Thomas
V. Cohen and Elizabeth S. Cohen, Words and Deeds in Renaissance Rome: Trials before the
Papal Magistrates (Toronto, 1993).
10
Martin Dinges, ‘Usi della giustizia come elemento di controllo sociale nella prima
etá moderna’, in Marco Bellabarba, Gerd Schweroff and Andrea Zorzi (eds), Criminalità e
giustizia in Germania e in Italia: pratiche giudiziarie e linguaggi giuridici tra tardo medioevo
ed età moderna, Annali dell’Istituto storico italo-germanico in Trento, 11 (Bologna, 2001),
pp. 285−327.
11
For useful epistemological and methodological concerns when reading judicial
sources see primarily Arlette Farge, Fragile Lives: Violence, Power and Solidarity in Eighteenth
Century Paris, Harvard Historical Studies, 113 (Cambridge, MA, 1993), pp. 1–6; Shannon
McSheffrey, ‘Feature Questions of Evidence. Detective Fiction in the Archives: Court
Records and the Uses of Law in Late Medieval England’, History Workshop Journal, 65
(2008): pp. 65–78; Winfried Schulze (ed.), Ego-Dokumente: Annäherung an den Menschen
Penitentiary, the chief and cheapest monger of both the salvation of souls and
justice on earth in Renaissance Rome.12 One of the most striking features of their
petitioning to Rome is the ability, varied skills and determination of the common
man to use such a distant, in fact transnational, institution. Additionally, it
was ordinary people who decided and initiated the procedure of petitioning.
From the territory of the Kingdom of Hungary, in the period between c. 1450
and 1520, 250 laypersons asked for papal absolution at this papal tribunal for
killing a priest, and another 135 for committing violence against clerics. Other
papal offices, such as the Apostolic Datary and Chancery, also dealt with similar
affairs.13 However, ordinary people, by whom I mean here both men and women
of the middling and lower sorts, with only the poorest of both cities and villages
excluded, tended to ask for papal pardon at the Penitentiary, since the letters
issued there were considerably cheaper.14 Their vernacular stories were presented
orally or in writing to professional curial proctors, who, when transcribing the
original stories, had to respect a fixed protocol. Like routine letters of royal
remission in sixteenth-century France and England, both the procedure of
issuing a pardon and the law itself to which it had to conform constrained their
stories. Nevertheless, the diversity of circumstantial detail, script and rhetoric
of the stilus curiae Latin petitions, which survive in huge numbers, supports the
view that petitioners remained the unquestionable authors of their narratives.15
While accounts of what happened were intended to be efficacious, they also
had to appear as authentic and truthful, since their content was subsequently
checked during the ratification procedures by witnesses. And essential to
the recipe they had to be highly humble and respectful, capable of soliciting the
in der Geschichte (Berlin, 1996). See also Laura Kounine’s chapter in this volume for a case
study on communal conflict as documented in a witch-trial in seventeenth-century Germany.
12
On the office of the Apostolic Penitentiary see most recently: Kirsi Salonen
and Ludwig Schmugge, A Sip from the ‘Well of Grace’: Medieval Texts from the Apostolic
Penitentiary (Washington, 2009).
13
See Christian Schneider’s chapter in this volume for a discussion of the Pope’s role as
international peacemaker.
14
Where the Chancery asked for 10 ducats, the same papal grace was issued by the
Chief-Penitentiary for only 4 to 5 ducats even after the significant ‘inflation’ of taxes in the
fifteenth century. A layperson who killed a cleric had to pay 2 ducats for a letter of absolution.
Wolfgang P. Müller, ‘The Price of Papal Pardon: New Fifteenth-Century Evidence’, in
A. Meyer, C. Rendtel and M. Wittmer-Butsch (eds), Päpste, Pilger, Pönitentiarie. Festschrift
für Ludwig Schmugge zum 65. Geburtstag (Tübingen, 2004), pp. 457−81.
15
As is always the case with judicial sources, it was the professional literate elite who
transcribed the words of the illiterate, as in this case also. See the pro and contra arguments
for using judicial records as ego-documents (letters, autobiographies, diaries) in Ralf-Peter
Fuchs and Winfried Schulze (eds), Wahrheit, Wissen, Erinnerung: Zeugenverhörsprotokolle als
Quellen für soziale Wissensbestände in der Frühen Neuzeit, Wirklichkeit und Wahrnehmung
in der Frühen Neuzeit, 1 (Münster, Hamburg and London, 2002).
benevolence of the Pope. Just as the posture implied in the discourse of royal
clemency requests was calculated to impose respect for monarchic sovereignty,
as sensibly argued, the interactive scenario of papal remission always tacitly
strengthened the authority of the Pope.16 By the gesture of pardoning, he not
only subjugated competing authorities but also imposed his will on his subjects,
who got entangled in the process of domination while designing narratives
intended to fully satisfy official expectations. During this process they learned to
use the language, concepts and rules of papal remission. And even if people were
sufficiently wise to learn how to manipulate the regulations, they still became –
by asking pardon for their transgressions – albeit unconsciously, agents of the
construction of sin and of the authority of the Church. In short, domination
and agency are both inherent in the complex scenario of pardoning, of which
one must be constantly aware when interpreting the material.
Reading these narratives, I was initially shocked at the high level of self-
consciousness and reflexivity of actors. Sentences like ‘in order to restore his
reputation, he made expenses and started a suit’ suggest that petitioners were
highly aware of what they were doing.17 The priest Ipolitus Rutz from the diocese
of Mainz wrote that ‘his enemy delivered insulting words disparaging the entire
clergy, which made him somewhat angry and he fought with words in order to
defend his honour, but finally he could not restrain his temper and grabbed with
his right hand a bowl’.18 This gesture, inescapably, induced a fatal fight. Such
words illustrate the conscious choices made from among the varied weapons
available on the battlefield for honour. They also reflect the effort and the norm
of self-restraint, as well as the communicative nature of emotional behaviour:
as the display of anger served to publicize enmity, the ‘cooling’ of emotions,
which is expected and regarded as high status today, was counter-effective.19
16
Claude Gauvard, ‘Le roi de France et l’opinion publique à l’époque de Charles VI’, in
Culture et idéologie dans la genèse de l’État moderne: Actes de la table ronde de Rome (15–17
octobre 1984) (Paris and Rome, 1985) pp. 353–66; Hélène Millet (ed), Suppliques et requêtes:
gouvernement par la grâce en Occident (XIIe–XVe siècle) (Rome, 2003); Natalie Zemon Davis,
Fiction in the Archives: Pardon Tales and their Tellers in Sixteenth-Century France (Stanford,
1987), pp. 57–9.
17
‘ut famam suam recuperaret, expensam fecit et litem habuit’: petition of Gallus
Valentini Redolich, 1482, diocesis Zagrabiensis. Archivio Poenitentiaria Apostolica, Roma,
Registra Matrimonialium et Diversorum (hereafter, APA), vol. 31, fol. 179r.
18
‘verba iniuriosa honori exponentis detractoria totum clerum vituperando explorasset,
exponens aliquantulum commotus pro honoris defensione verbis impugnavit et se continere
non valens quendam cantarum ibidem manu dextra apprehendit’ (1491). Repertorium
Poenitentiariae Germanicum, online: www.http://194.242.233.132/denqRG/index.htm
(accessed 25 September 2013).
19
Ole Riis and Linda Woodhead, A Sociology of Religious Emotion (Oxford, 2010),
pp. 186–7.
In other words, it seems that contemporaries were not so much incapable of

self-restraint, as the proponents of the civilizing process have advocated, but
rather that emotions and their staging had different functions and values in late
medieval society.20
These stories also tangibly show that denunciations to courts were not as a
rule interpreted by contemporaries as ‘more civilized’ or ‘more rational’ than acts
of physical violence. Expressions like ‘violenter spoliare’ (to plunder by force)
and ‘violenter in causam trahere’ (to initiate a suit by force) reflect that violence
and litigation could be placed on an equal footing in contemporary perception.
Taking someone to court was not necessarily perceived as a more acceptable
or friendly tool of conflict negotiation, but as a venue of social competition
performed not by words, but by a financially and psychically often more
burdensome ‘armory of legal expertise’.21 Such a perception of the people of the
time is reinforced by their language: they denoted their actions on both fields (at
courts mediated by legal experts who also understood and spoke this language)
with the vocabulary of enmities directed by emotions, hatred and love.22
My particular concern here is late fifteenth- and early sixteenth-century
disputes between layfolk and their priests, taking place in the Kingdom of
Hungary, which at the time consisted of the personal union of two countries,
Hungary and Croatia, under the Jagiello dynasty (1490–1526). At that time,
the country had a population between 3,000,000 and 3,500,000 people, with an
overwhelming majority of Roman Christians (but with an increasing number
of Orthodox Christians in the southern regions, who took refuge in the north
from the Ottoman expansion and the ceaseless warfare it involved).23 While the
mostly German-speaking citizenry lived in the royal free cities, the majority of
the population comprised peasant tenants living under feudal lords in villages
and small towns. It is primarily the members of this rural population that appear
as the protagonists of the case studies that follow.
The disputes of laypeople and local clergymen typically were rooted in their
conflicting interests as neighbours rather than their lay versus ecclesiastical status.
‘Most Holy Father!’ began the petition of Hermanus, a layman from Slavonia.
On the broadening literature on the history of emotions (i.e. the meanings of

20
emotions staged in public) see Barbara H. Rosenwein, ‘Introduction’, in her Emotional

Communities in the Early Middle Ages (Ithaca and London, 2006), 1–31.
21
Richard L. Kagan, Lawsuits and Litigants in Castile, 1500–1700 (Chapel Hill,
1981), p. 161.
22
On the discussion of emotions in juristic literature, which are the products of the
effort at regulating enmities see Robert Bartlett, ‘“Mortal Enmities”: the Legal Aspects of
Hostility in the Middle Ages’, The T. Jones Pierce Lecture (Aberystwyth, 1998).
23
András Kubinyi, ‘Die Bevölkerung des Königreichs Ungarns am Ende des 15
Jahrhunderts’, in Gyula Kristó (ed.), Historische Demographie Ungarns 896–1896 (Herne,
2007), pp. 66–93.
His petition was in the usual third person, which reminds us of the mediating
role of professional lawyers. Hermanus was one of the several hundred priest-
killers from Hungary: ‘the beloved son of Your Holiness humbly relates that
by diabolic inspirations he killed a priest and thus suffered excommunication.
Therefore he requests the Holy Father to absolve him from this sentence and
the sin of killing a priest.’24 The rest of the story, to the historian’s dismay, was
reported orally before curial judges, who tested the credibility of petitioners.25
However, we do have the petitions of violent clergymen who did not go to the
papal court personally, but explained matters in writing, and these provide some
consolation and material for conflict analysis.26 Ordinary clerics and priests,
in fabricating stories they thought would achieve the forgiveness of their sins,
translated the actual plots of local conflicts into the language and scenario
expected by the Roman centre.27
Although pardon tales were officially designed to regulate vertical social
relations, I will draw upon the historical record and try to show how laypeople –
with their laconic petitions − appropriated the scenario of remission in the process
of their local conflict negotiations. The minute reading of representations of
their conflicts, furthermore, opens a new window onto the relationship between
ordinary parishioners and their priests in the decades preceding the Protestant
Reformation. Another aim of this study is, hence, to make sense of the local
interests and relations behind their conflicts.
It is generally argued that, under the impact of the Protestant Reformation,
lay–clerical relations substantially transformed. In the late Middle Ages,
parishioners expected that the pastoral clergy should mediate effectively
between this world and the next by delivering the sacraments.28 As a result of
the new theology professed by the Protestant Churches of the confessional
period, the Protestant clergy had lost its function as sacerdos: it did not mediate
divine grace by performing rituals, but educated the laity by words spread
24
APA, vol. 5, fol. 174r (1456, diocesis Zagrabiensis).
25
It seems that laypeople asking absolution for the killing of clerics had to appear
personally in the Curia, where their cases were further investigated. See the note which is
inserted in an informal list of taxes (1455−1458) to be paid for the letters of the Penitentiary:
‘Nota quod ista ultima absolutio [pro homicidio clericale] raro conceditur pro absentibus.’
Wolfgang P. Müller, ‘Die Gebühren der päpstlichen Pönitentiarie (1338−1569)’, Quellen
und Forschungen aus italienischen Archiven und Bibliotheken, 78 (1998): pp. 189−261
(p. 240).
26
The majority of homicide cases were lay–clerical conflicts: out of the 373 clerical
narratives only in 39 cases were the victims also clerics.
27
On this phenomenon see in more detail, Smail, Consumption of Justice, passim.
28
Robert N. Swanson, ‘Before the Protestant Clergy: The Construction and
Deconstruction of Medieval Priesthood’, in C. Scott Dixon and Luise Schorn-Schütte (eds),
The Protestant Clergy of Early Modern Europe (New York, 2003), pp. 39−59.
from the pulpit. The Lutheran tenet of the priesthood of all believers in theory
eliminated the earlier difference in status between laypeople and clergymen.
Consequently, so the argument follows, the laity turned to the clergy with a new
set of expectations based on more secularized values: they considered the local
priest as a model person, as an exemplary husband and father as well as an honest
member of the community fulfilling his duties also in his profession.29
Taking issue with the above argument at a general level, I would refuse
the notion that social practice is primarily guided by abstract ideas, which the
common people blindly followed. This is necessarily a broad brushstroke of
what is a much more complex picture, but I would nonetheless like to suggest
that it is fruitful to examine how the relationship between the laity and clergy
played out in concrete situations rather than in terms of abstract principles.30
I will therefore explore those contexts in which the common people emerge as
active agents. Scholars focusing on the social and cultural factors of early modern
transformations, instead of on religious tenets, have reached similar conclusions.
In the late Middle Ages, villagers and their clergymen lived in close coexistence;
it was only in the later sixteenth century that their shared culture started to
disintegrate, and the process of their separation climaxed in the eighteenth
century. While this long-term tendency is generally accepted, there is more
disagreement concerning its reasons: was it the change in clerical education or in
the social background of the new clergy which furnished the professionalization
and the elite-consciousness of the clergies of the confessional era?31
In an effort to prove their innocence within the framework of canon law,
lay–clerical conflicts tended to be represented as innocent folly, but the tension
29
C. Scott Dixon and Luise Schorn-Schütte, ‘The Protestant Clergy of Early Modern
Europe’, in Dixon and Schorn-Schütte (eds), Protestant Clergy, pp. 1−38, with further
literature listed.
30
For a similarly framed social history of the late medieval local clergy see Dietrich
Kurze, ‘Der niedere Klerus in der sozialen Welt des späten Mittelalters’, in Dietrich Kurze,
Klerus, Ketzer, Kriege und Propheten: Gesammelte Aufsätze (Warendorf, 1996), pp. 1−36.
31
On the relationship of the Protestant ministry and their parishioners, see: Bruce
Gordon, ‘Preaching and the Reform of the Clergy in the Swiss Reformation’, in Andrew
Pettegree (ed.), The Reformation of the Parishes: The Ministry and the Reformation in Town
and Country (Manchester, 1993), pp. 63−85. On the impact of post-Tridentine clerical
education, see Jean Quéniart, Les hommes, l’église et Dieu dans la France du XVIIIe siècle
(Paris, 1978), pp. 63, 85; Marc Forster, The Counter-Reformation in the Villages: Religion
and Reform in the Bishopric of Speyer 1560−1720 (Ithaca and London, 1992), pp. 58−93.
On the intellectual social origin of the early modern clergy, see Andrew Barnes, ‘The Social
Transformation of the French Parish Clergy, 1500−1800’, in Barbara B. Diefendorf and
Carla Hesse (eds), Culture and Identity in Early Modern Europe (1500−1800): Essays in
Honor of Natalie Zemon Davis (Ann Arbor, 1993), pp. 139−58.
of hidden enmities remains tangible by ‘emotion talk’.32 Georgius, a market town

parish priest, related how he had once mocked and beaten one of his servants on
their way home at night. Instead of giving any reason for the insult, he accounted
for his foolish behaviour by his drunkenness. He describes the details of the road
brawl where he killed the servant in self-defence, and then casually mentions
that the servant a year earlier had battered his adopted father.33 This very last
piece of information suggests that what was portrayed as an isolated spur of the
moment episode of innocent escapade gone wrong was in fact a revenge killing
involving long-standing enmity. This kind of representation was facilitated by
legal expectations, similarly present in French and English pardon tales: violence
was remissible if committed in self-defence or in a fit of passion.34 Passions could
be legitimately provoked by drunkenness or by ‘hot anger’. Such a pattern of
emotions and actions is inherent in the story of Gregorius, the son of Britius
Pap [‘Priest’], a priest from the village Orbányosfalva in Transdanubia: ‘a layman
called Demetrius nurtured such a tremendous anger against him and his servant
that he regularly threatened to kill them. One day Demetrius came to his house
and impudently killed his servant while he was absent.’35 Informed about the
homicide, the priest Gregorius set off for home accompanied by some of his
friends, and in such an upset state of mind he ran into Demetrius, who, ‘being
overcome by anger’ (furore repletus), started to chase the priest with a sword
and an axe in his hand. Gregorius could only be saved from death with the
help of his friends, who battered Demetrius ‘hungarico more’ (in the manner
of the Hungarians) so severely that he died six weeks later. In this story as in
several others, the enmity lurking underneath the events becomes apparent as
the narrator describes his enemy as acting out of pre-determined malevolence
(ex preconcepta/precogitata malitia et animo malivolo or malo proposito). Hatred
32
On the role of emotions and their representation in neighbourhood conflicts and
litigations see Smail, Consumption of Justice. ‘Emotion talk’ is his term (e.g. p. 134). See
also Tara Alberts’ chapter in this volume for an analysis of secular–religious conflicts in the
context of the Portuguese overseas empire.
33
Monumenta Romana Episcopatus Vesprimiensis. A veszprémi püspökség római
oklevéltára [The Collection of the Papal Documents of the Diocese of Veszprém], 4 vols
(Budapest, 1896−1908), vol. 3, pp. 310−11 (1489).
34
Stuart Carroll, ‘Introduction’, in Carroll (ed.), Cultures of Violence: Interpersonal
Violence in Historical Perspectives (Basingstoke, 2007), pp. 1−46 (p. 21).
35
‘Gregorius Bricii Pap presbyter ville Vrbanusfalua Wesprimiensis diocesis exponit,
quod cum alias quondam Demetrius laicus Jauriensis diocesis in ipsum oratorem et quendam
eius famulum maximum odium concepisset et in dies eis mortem minaretur et die quadam,
quod prefatus idem Demetrius ad dicti oratoris domum accesserit … et certas insolentias
faciebat, quod unum ex ipsius oratoris famulum interfecerat, eidem oratori in domo cuiusdam
amici tunc existenti relatum fuisset.’ APA vol. 70, fols 95v−96r (1522). Orbányosfalva is a
village in Zala County, in Transdanubia.
(odium) is the other key word used to denote long-standing tensions between
individuals.36 From hatred, then, followed acts of pre-meditated violence which
were officially outlawed. Gregorius, furthermore, legitimated his own counter-
reactions as being motivated by anger, partly a sudden outburst of rage and
partly a just answer to the damages he had suffered. For contemporaries, actions
followed from emotions and could be justified by the quality and legitimacy
of emotions.
If everyday lay–clerical conflicts derived from neighbourhood disputes, it
suggests that the parties lived in close coexistence. The rural parish clergy were
normally local boys, the sons of local peasants; they were intensely integrated
socially – by kinship, affinity and friendship – into local communities. They
continued to farm lands and head households, where they usually lived together
with a woman, often a female relative, in charge of housekeeping. Moreover,
the parish priest usually tutored some of his nephews for the priesthood, kept a
chaplain who helped in performing religious liturgies and had some servants. The
priests often enter the scene in their own stories as authoritative and responsible
patriarchs imposing punishments ‘in accordance with the committed crime’
on ‘impertinent’, ‘irreverent’ and ‘badly behaving’ matrons and nephews.37
In addition to safeguarding the household’s order and morals, they also acted
responsibly for the well-being and safety of household members within the
local network of relationships. The paterfamilias role of village incumbents is
well reflected by the case of Paulus Albi, the parish priest of the Saxon village
of Schlattendorf in Transylvania. He gave one of his female servants, endowed
with a respectable dowry, as wife to a male servant. After a while, however, the
husband took to beating his wife and when, one day, he even tried to kill her – as
the parish priest related the events – the desperate wife took refuge in the priest’s
house. Since the husband continued to trouble his wife, the priest Paulus could
not bear it with ‘a peaceful soul’ and one night he sneaked into the husband’s
house and stabbed him in bed.38 The story reflects, beside the parish priest’s
responsibility for the members of his household, that anti-violent behaviour
served as an effective argument, falling in line with official expectations in the
process of receiving papal grace.
36
See, for example, APA, vol. 2, fol. 130v; vol. 2, fols 20v−1r; vol. 2bis, fols 105rv−106r;
vol. 117, fols 700v−702r.
37
On the physical punishment of disobedient female servants see ibid., vol. 3, fol. 122r;
vol. 14. fol. 138v; vol. 24, fols 144v−145r etc. On nephews, for example: ‘quendam puerum
eius nepotem annorum etatis duodecim vel circa, quem unacum fratre ipsius pueris secum in
domo tenebat … [quem] animo corrigendi et sine gravi excessu vel enormi eundem puerum
cum manu sua in latus eius dexterum percussit seu trusit.’ Ibid., vol. 2, fols 123r–v (1439,
diocesis Wesprimiensis).
38
APA, Armadio XXXII, vol. 61, fols 427v–428v (1522, Milkowiensis-Strigoniensis
diocesis).
Assaults against the parsonage were directed not so much against the priest’s
person, but his family: house raids were the most common acts of ‘rightfully’
avenging an earlier offence by force.39 The enmity tends to be signalled in these
stories also by the workings of hatred. Like their parishioners, village incumbents
tended to deal severely with negligent servants wasting wealth and with harmful
neighbours. The priest Ambrosius Cserepes (‘Tiler’) was shocked when he
arrived home at the parsonage to see that the hedge of his garden was again
being trodden over by foreign cattle, even though he had earlier admonished
the herdsmen to keep his animals away from grazing in the parsonage’s garden.
In his frustration, so he maintained, he lost his temper (ira motus) and beat the
herdsman so severely that he soon afterwards died from his head wounds. The
priest Ambrosius brought himself to severe grief by the murder committed in hot
anger: he had to leave his benefice and office and could only function as a priest
in a place where his past could remain in secret, or at least this was his request
to the Pope.40 The defence of property was not an enterprise without dangers.
Petrus, the son of Paulus from Croatia, was probably aware of this when he rode
out daily to his lands in order to save his springing crops from being strolled
over and eaten by foreign cattle. It happened on one of these occasions that his
neighbour’s servants, who let their cattle graze on his land, turned against him
with arms on his attempt to expel them. They first wounded his horse and then
sought his life, which impelled him to pull out his knife in self-defence and kill
one of the aggressors.41
In addition to these acts of vindicatory violence, as rural clergymen also
casually frequented the taverns − notwithstanding the repeated prohibitions
of their superiors announced publicly and regularly by diocesan synods − they
invariably became participants in occasional brawls. One evening, the cleric
Paulus from the village Szepetk, together with the parish priest whom he served
at the time, entered a tavern ‘where they spoke and drank together with laymen
in an honourable manner’ − this was the usual way of setting the scene of
joyful gatherings that often turned into verbal and physical conflicts. So Paulus
continued: the laymen who arrived some time later gathered at a nearby table
and when they were already totally drunk, one of them threw a roast goose over
to their table, but yet discontent with such an insult attacked the parish priest
and his company with a naked sword.42
The local clergy not only casually shared happy hours in the taverns, but were
also regular guests at family feasts and participated in great village festivities
39
István Tringli, ‘Jagelló-kori levelesítő jegyzék Zalából’ [A List of Proscribed Criminals
from the County of Zala in the Jagiello Era], Levéltári Közlemények, 69 (1998): pp. 3−30
(p. 19).
40
APA, vol. 70, fols 104v−105r (1522, Strigoniensis diocesis).
41
APA, vol. 78, fols 541rv−542r (1532, Zagrabiensis diocesis).
42
Ibid., vol. 2bis, fols 143r–v (1440, Wesprimiensis diocesis).
and popular games tied to cyclical festivals (just as sacred and profane rituals
intermingled). These however also went wrong occasionally and ended in
violent brawls, even if sometimes relationships involving enmity and revenge can
be suspected behind them. The priest Ambrosius, after performing the funeral
ceremonies, joined with his chaplains the villagers’ feast and ‘celebrated with
abundant eating and drinking according to local customs’.43 We are informed
about this fairly common scene only due to its violent outcome: when the
clergymen late in the night departed for their home village, one of their fellows,
who remained longer but wanted to catch up with the rest of the company,
shouted after the parish priest to wait for him. And when he finally did reach
them, to their dismay, he attacked them with his sword. The road brawl between
the clergymen ended with the death of the vehement and drunken colleague.
Another scene of parishioners and clergy sharing in popular festivity after a
religious ritual comes down to us as an episode of feud. The priest Johannes, son of
Nicholas, as the incumbent of a southern village in Hungary commanded a large
household that included some of his siblings, whom he tutored and who helped
him also in performing religious services – as can be inferred from his petition
at hand. The main character in the story is, in effect, one of his siblings, who
was on inimical terms with a local man called Johannes, son of Leonardus. After
Johannes had repeatedly threatened to kill the said sibling while brandishing
a sword, his brothers pummelled the aggressor. After such antecedents the
rival parties made peace with the mediation of arbiters (interventu quorundam
virorum fuit inter eos concordia), each party promising, under pain of punishment
amounting to 40 forints, not to cause any damage to each other either by words
or deeds. This, however, did not stop the layman, who is portrayed according to
the usual script as a restless and wicked person, from further violent harassments.
Finally, one day – so we arrive to the story’s minor episode, which is however
our central interest – the incumbent, at the request of the village community
stricken by pestilence, celebrated a mass with the assistance of his siblings, in
which the community solicited and prayed for the Virgin Mary’s aid. With the
public ritual finished, clergy and laity joined in a great convivial evening. It was
already a late night hour when the priest Blasius – depicting himself with the
officially expected modesty – politely asked the permission of his fellows to
leave and departed for home.44 He arrived too late nevertheless. He could not
hinder his sibling’s murder by Johannes and his accomplices in his own house.
He did hasten though to take revenge immediately.
Ibid., vol. 81, fols 608v−609v (1533, Zagrabiensis diocesis).
43
44
‘Postmodum vero durante pestilentia, cum predictus exponens cum fratribus suis
missas ad honorem Beate Marie Virginis celebrare fecisset, et in fine dictarum missarum
magnam convivium fecissent et ibi quamplures probi viri essent, sero facto prefatus
exponens de omnium astantium licentia recessit et ad domum suam accessit.’ Ibid., vol. 44,
fols 291r−292r (1495, Chanadiensis diocesis).
Beyond attesting to the common leisure of clergy and laity, the story
also testifies that local priests, who were embedded in the local network of
reciprocal relationships, applied the same tools of conflict negotiation as their
parishioners: they typically used violent self-help, negotiated enmities with
communal mediation (arbiters) or went to court to their own advantage. The
laymen involved in these disputes used verbal strategies portraying their clerical
enemies as bad priests rather than as malicious neighbours. The personal enemy
thus appeared to be a priest abusing local expectations or failing to fulfil clerical
duties. This kind of representation facilitated that personal conflicts could
appear as communal affairs and were debated in front of public authorities as
such. Hence, the peculiarities of neighbourhood disputes, laden with individual
interests and emotions, were translated into the universal issue of priestly
honour, comprehensible for the targeted audience.45
Priestly honour, like that of female reputation, revolved primarily around
sexual virtue.46 The use of a symbolic idiom becomes exceptionally tangible in a
case from the village Toplica (in Zagreb County) due to the lucky circumstance
that not only one, but two of the participants tried to present an acceptable
story about the same event. The priest Paulus from Worsck, the incumbent
of the Holy Trinity parish church, fabricated a homicide story in which the
conflict lay between two of his parishioners, Michael Borbély (‘Barber’) and
Petrus Varga (‘Shoemaker’), on the one side, with his chaplain, Lucas Scopzich,
on the other. The laymen accused the chaplain of adultery, in other words of
seducing a married woman. The parish priest tried to mediate and make peace
between the parties, but his reprehensions were enough only to draw upon
himself the anger of Michael Borbély. In his version the conflict reached its
climax when Borbély unexpectedly shot dead his neighbour, Petrus Varga,
with an arrow.47 This outcome is totally incomprehensible: why did the two
laymen turn against each other when it seemed that they got into trouble with
the sexually abusive chaplain? We learn from the chaplain Lucas’s story, handed
in to the Penitentiary the same day, 13 December 1487, that in actual fact he
had only been a side-figure in the conflict between the two laymen: the two
neighbours engaged in a dispute over something, during which both men called
45
Honour functioned as a central concept constituting a person’s individual identity
and social relations. For such an interpretation of the concept of honour see Martin Dinges,
‘Die Ehre als Thema der Stadtgeschichte: Eine Semantik am Übergang vom Ancien Regime
zur Moderne’, Zeitschrift für Historische Forschung, 16 (1989): pp. 419−40; Susanna
Burghartz, ‘Disziplinierung oder Konfliktregelung? Zur Funktion städtischer Gerichte im
Spätmittelalter: Das Züricher Ratsgericht’, Zeitschrift für Historische Forschung, 16 (1989):
pp. 385−408.
46
Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early Modern London
(Oxford, 1996), pp. 4, 111−38.
47
APA, vol. 37, fols 224v−225r (1487).
the other’s wife the chaplain’s lover.48 Most probably the neighbourhood conflict
developed over a certain kind of material damage, as was most often the case,
but this went unnoticed while they debated publicly the fidelity and reputation
of their wives. This had important consequences for their own status. As the
central component of men’s honour was their ability to ensure the chastity
and fidelity of their wives (and also the virginity of their daughters), spousal
dishonour contaminated the husbands’ reputation.49 Due to this paternalistic
quality of male honour, this was the issue at stake in the neighbourly dispute.
We know nothing about the final settlement of the dispute and the fate of
Michael Borbély, since he did not ask the Pope’s pardon for committing murder.
The two priests entangled in their parishioners’ affair, however, needed the Pope’s
declaration of their innocence. The parish priest, whose mediation came short,
felt himself responsible for the death of one of his parishioners.50 His narrative,
which distorted the two laymen’s conflict into a lay–clerical dispute, must have
seemed credible though at the Roman office, where stories about laymen killing
priests were handled routinely.
The varied but always very concrete causes of disputes (which in the
above case almost got unveiled in the gaps of the two rivalling narratives)
were translated into a symbolic language over the course of the verbal fights.
Their script is easily readable in the petition of the cleric Emericus Corcunctal
from Majsa, a village in southern Hungary. A layman named Blasius ‘falsely
denounced him’ – as he claimed – for fornication first at the landlord’s tribunal
and later before the parish priest. Blasius is displayed by Emericus as ‘an evil
man of ill repute’, who behaved aggressively towards him. The charges against
Emericus, however, fell flat; both the landlord and the parish priest recognized –
as Emericus maintained – his ‘innocence’ and the ‘malevolent intrigues’ of his
enemy, who, however, refused at court to reconcile with the defamed party and
ask for his pardon. At this point the efforts of the man to defeat his priest-enemy
with the support of legal authorities appear to have come to nothing. Emericus
continued the story as follows:
48
‘Lucas Scopzich presbyter Zagrabiensis diocesis capellanus Pauli plebani ecclesie
Sancte Trinitatis in Toplica dicte diocesis, quod cum ipse olim a quibusdam laicis super
crimine adulterii licet falso accusatus fuisset, et propterea lis inter quosdam Michaelem
Barbitonsorem et Petrum Sutorem dicte plebanie parrochianos orta fuisset ita, quod alter
alterum increpabat dicendo Lucas presbyter habuit rem cum uxore tua et non cum mea,
et econverso alter dicebat de altero adeo, quod propter huiusmodi frivola et inepta verba
prefatum Petrum ictu sagitte interfecit.’ APA, vol. 37, fol. 225v.
49
Lyndal Roper, Oedipus and the Devil: Witchcraft, Sexuality and Religion in Early
Modern Europe (London, 1994), pp. 65, 107−9.
50
On the role of the pastoral clergy as promoters of peace within the parish see Nicole
Castan, ‘The Arbitration of Disputes under the Ancien Regime’, in John Bossy (ed.), Disputes and
Settlements: Law and Human Relations in the West (Cambridge, 1983), pp. 229–60 (p. 239).
Finally, one night on his way home, Blasius assaulted him with insults and
threats, to which he responded something like ‘Blasius, I have had enough of your
defamations; be considerate of Christ’s passion and leave me in peace’. Blasius,
bursting into diabolic anger, replied: ‘Rascal and son of a whore, I have recently
failed to ravage you, but today I’ll drag you out of your house, ransack you, drink
over your tunic and pass my sword through you.’51
This battle of words, performed in the language of honour, developed into a

fist-fight that left the priest on top and the actual reasons of their hostility hidden.
In other instances, like that of the priest called Matthias, son of Johannes, it was
not the alleged sexual misconduct of his mother (referred to as a whore) but his
own which served as the target of the insult. The parish priest related in great
detail how his house was one night assaulted ‘ex precogitata malitia et animo
malivolo’ – in other words, by his enemies. His chaplain was first to notice the
intruders by the dogs’ barking. When he inquired who was outside, he received
the plain reply: ‘Once I get my hands on you, I will kill you!’ The aggressor then
broke down the house door and shouted in front of the pastor’s room, which he
found closed: ‘Pastor, give us your concubine!’ This was the point when priest
Matthias, being alone and sound asleep in his bed, as he related, woke up in
alarm. According to the usual script, when the pacifying words of the parish
priest only added to the aggressor’s rage, rather than making things worse the
priest opened the door and said he did nothing to merit such a treatment. ‘You’ll
see now what you deserve: you will have to die shamefully!’ – so his enemy
yelled, drew his sword and wounded the priest. The defenceless priest and his
coward chaplain escaped death only in a way which borders on the miraculous,
by turning the aggressor’s own sword and knife against himself.52
When the attack on clerical sexual behaviour – in other words, priestly
honour – proved ineffective, the language of the ongoing battle shifted to worldly
honour, with people now calling their cleric enemies ‘rogues’ and ‘rascals’.53 This
double coding of insults seems to have been applied with conscious weighing of
circumstances and chances in tavern and courtroom, and in moments of violent
self-help. The cleric Georgius from Rojcsa (in Slavonia) also criminalized his
enemy thus:
51
‘aliquibus postremo diebus elapsis idem Blasius exponentem ipsum tunc serotivo
tempore ad domum sue habitationis revertentem … iniuriis affecit et minis sibique dicenti,
O Blasii iam satis me … diffamasti, rogo te ob passionem Christi ut sinas me in pace talia aut
similia verba, respondit furore diabolico inflammatus, O latro et meretricis filius, pridie non
potui te spoliare sed hodie extraham te de domo tua et te spoliabo et bibam supra tunicam
tuam et meo ense te perforabo.’ APA, vol. 54, fols 300v−301r (1508, Quinqueecclesiensis
diocesis). Majsa is a village in Tolna County.
52
APA, vol. 2, fols 20v−21r (1439, Strigoniensis diocesis).
53
Tringli, ‘List of Proscribed Criminals’, p. 19.
For the sake of leisure he visited once a house, where many had gathered already.
After talking for a while, a man, who had attacked already a cleric that day and
committed several homicides … turned against him by quarrelling and with
insulting words. He called him and his parents thieves and rogues and therefore
unworthy of the company of virtuous men. He responded to the insult: ‘neither I
nor my parents have ever been thieves or rogues, and I ask you in the name of God
to leave me in peace, since I have nothing to do with you, neither good nor bad.’54
Soon afterwards, swords and knives were taken up. Conversely, as the above
cases also reflect, clergymen preferred to call their lay enemies murderers and
present them as stubbornly hostile and aggressive towards priests.
Enmities were pursued simultaneously in multiple frames of action:
interpersonal and collective violence (house raids), at court and by extra-judicial
negotiations. The actual choice between them seems to have been regulated
not by emotions, but rather by a constant calculation of risk. Johannes Csonka
(‘Maimed’), the expelled parish priest of the village of Belesz (in modern-day
Serbia), sought redress by denunciating his successor, the priest Georgius Vágó,
at the diocesan court. As a result, the priest Vágó tried to forestall a long lawsuit
by offering an out-of-court settlement to be accomplished with the involvement
of arbiters. Johannes, however, broke this mediated contract by demanding a
huge amount of money from his successor and took the case instead to the vice-
archdeacon’s tribunal. Then, during the ongoing judicial process, he did not
refrain from battering his enemy when on the road they randomly bumped into
each other. In actual fact, what he later depicted as a random road brawl seems
to have been a purposely designed revenge killing. His brother was with him,
which ensured their physical advantage, and the original lawsuit seems to have
served only both to mask his real intentions and to make it possible for him to
follow his enemy’s routes.55
As elsewhere in Europe, the social norm was peacemaking, the halting of
the flow of hatred and the making of ‘concordia amicitie’ (pacts of friendship).
There were numerous ways to achieve this, but the use of so-called private
54
‘quandam domum ubi plurimi laici causa solatii convenissent et eadem causa idem
exponens similiter intrasset, cum autem idem exponens ibidem per modicum spatium inter
homines conversasset, quidem laicus qui eadem die alium clericum percusisset et per prius
diversa homicidia in diversis locis perpetrasset … ipsum exponentem verbis litigiosis et
iniuriosis invasit et publice coram omnibus hominibus ipsum furem et latronem unacum
suis parentibus appellavit, et ipsum exponentem asseruit non dignum cum ipsis et aliis bonis
hominibus conversare; cui idem exponens Ego nunquam fur aut lator fui, nec parentes
mei, sed peto causa dei dimitte me in pace, nam tecum nichil habeo agere sive bonum sive
malum … ’ APA, vol. 2, fol. 148v (1439, Zagrabiensis diocesis). Rojcsa (Rovišće, Croatia) is a
market town in Kőrös County, Slavonia.
55
APA, vol. 55, fols 214v−215r (1510, Quinqeecclesiensis diocesis).
settlements mediated by arbiters – which were of course also public, since they
entailed the involvement of several members of the local community – seems
to have been very common. My findings at this point do not reflect Thomas
Kuehn’s conclusion that, in his reading of Florentine civil court cases, the
initiation of late medieval and early modern lawsuits served in particular to
enforce private settlements.56 Instead from the papal petitions a different, looser
pattern emerges. It seems to me that going to court, just as engaging in violence,
almost always would have varied effects and entailed different interpretations,
depending on circumstances and participants. Hence I would also consider
the view that the calculated use of violence was intended to speed up lengthy,
delayed and obstructed court procedures, and in fact achieved this, as rather
simplistic.57 In one situation a lawsuit could no doubt promote an agreement
mediated by arbiters, but in another it might easily facilitate violence. Although
the above affair of the two priests supports Kuehn’s assertion that lawsuits tended
to enforce private settlements, several stories testify to an opposite claim. One is
related by the cleric Nicholaus, son of Stephanus, in the southern diocese of Pécs.
He was the victim of false accusations by a layman named Mayus, and ostracized
by the county assembly as a ‘malefactor’ who could be killed by anyone.58
Unsurprisingly, Nicholaus became very perplexed by his vulnerable condition,
which caused him to order his servants to tear out his enemy’s tongue, since he
hoped this would deter his enemy from further harassment. In his petition he
then claimed that eventually only part of his tongue was torn out, and added
emphatically that ultimately his enemy reconciled with him before he was killed
‘propter suam malam linguam’ (because of his wicked tongue) by enemies other
than himself.59 In this case, as Nicholaus obviously considered his denunciation
unbearably humiliating, it pushed him towards violence which deepened the
conflict. Since in customary law, unjustified slander was punished by the tearing
out of the tongue, by his assuming the role of authorities he had committed, as
he may have well thought, legitimated violence.60
56
Kuehn, Law, Family, and Women, p. 22.
57
Martyn Rady, ‘Justice Delayed? Litigation and Dispute Settlement in Fifteenth-
Century Hungary’, Central Europe, 2 (2004): pp. 3−14 (p. 9).
58
On the congregatio generalis and its jurisdiction see István Tringli, ‘Az 1481. évi
szlavóniai közgyűlés’ [The Slavonian general assembly in 1481], in E. Csukovits (ed.),
Tanulmányok Borsa Iván tiszteletére [Essays in Honour of Iván Borsa], (Budapest, 1998),
pp. 291−318.
59
APA, vol. 1, fol. 89v (1411, Quinqueecclesiensis diocesis).
60
The tearing out of one’s tongue under the pillory could be evaded by paying the so-
called tongue fines. Ferenc Eckhart, A földesúri büntetőbíráskodás a XVI–XVII. században
[Seignorial Criminal Courts in the Sixteenth and Seventeenth Centuries] (Budapest, 1954),
pp. 126−7; Enikő Csukovits, ‘Bűn és büntetés a középkori városi gyakorlatban’ [Crime and
Punishment in Medieval Towns], in Enikő Csukovits and Tünde Lengyel (eds), Bártfától
Let me finally return to my starting point regarding the lay petitions about
priest-killings. Although these petitions are very short, they still reveal the
working of intense emotions. Some of the petitioners wanted to be absolved
by curial confessors instead of their local bishops, since ‘in fear of death he does
not dare – as the usual argument goes – to return to the presence of the bishop
and the place of the committed crime’.61 In other words, after the crime the
perpetrator was so scared that they ran as far as Rome. But what were they afraid
of ? No doubt they probably dreaded the imminent revenge of their victim’s
kin. In principle, they may obviously also have been afraid of the death penalty,
the official punishment for homicide. But it was possible to evade this, unlike
the wrath of enemies with blood ties. The death penalty, as in other parts of
early modern continental Europe, even if the suit reached a verdict, was rarely
implemented, since hostilities normally ended through peacemaking procedures
and the payment of fines (homagium).62
Priest-killers also deserved a spiritual punishment, and were automatically
sentenced to excommunication, which could be absolved solely by the Pope. The
rite of absolution included the public penance of sinners on the spot, which
was intended to prevent crime.63 The sinner requested for himself a penance
that in the established formula served ‘his own salvation and the deterrence of
others’.64 However, besides averting divine anger, the penance also need to avert
the wrath of the offended party. Since violent crimes against the clergy fell under
ecclesiastical jurisdiction, the family of the victim could turn to the diocesan
Pozsonyig: Városok a 13−17. században [From Bardejov to Bratislava: Towns from the
Fourteenth to the Seventeenth Centuries], (Budapest, 2005), pp. 199−222 (p. 217).
61
For example: ‘Committantur in Sancto Petro attento quod exponentes ad ordinarium
suum et locum commissi delicti propter metum personarum suarum accedere non sunt ausi.’
APA, vol. 42, fol. 210r.
62
For the comparison of continental inquisitorial procedure and the English
adjudicatory courts, the first producing fewer executions, see Carroll, Introduction, in Carroll
(ed.), Cultures of Violence. For Hungary, see Eckhart, Földesúri büntetőbíráskodás, pp. 108−9;
Martyn Rady, ‘Hungarian Procedural Law and Part Two of the Tripartitum’, in Martyn Rady
and János M. Bak (eds), Custom and Law in Central Europe (Cambridge, 2003), pp. 47−70
(p. 65) (www.cels.law.cam.ac.uk/publications/occasional%20papers/Paper_6.pdf, accessed
25 September 2013.)
63
On the contemporary practice of public humiliation see Peter D. Clarke, ‘Central
Authority and Local Powers: The Apostolic Penitentiary and the English Church in the
Fifteenth Century’, Historical Research, 84 (2011): pp. 416−42 (p. 429). In the city of Pécs
in South Hungary, a married woman (aborting her child) was instructed by her confessor
to join the public penitents performing penance collectively during the Holy Friday liturgy
‘secundum morem illius patrie’ (according to the customs of the region). APA, vol. 5,
fol. 187r (1456).
64
‘penitentiam talem, que sibi sit ad salutem et aliis ad terrorem’. APA, vol. 64, fol. 698r
(1520).
vicar’s tribunal. In the course of the unfolding legal procedure the parties usually
reached an agreement, which included the payment of fines.65 In this context,
those people seem to have run to Rome either because the usual script of
peacemaking was not available, since they were outsiders to local communities,
or when negotiations for some reason broke down and they reckoned it better to
disappear for a while. From this perspective, the petitioning to the Roman office
served to suspend the enmity and avert the vengeance of their outraged enemies.66
Irrespective of legal norms, men and women embedded in local networks of
relationship were seldom sentenced to death. More precisely, even if the court
passed a capital sentence, instead of its execution, it functioned as a stage in a
process heading, as generally expected, towards the reconciliation of hostile
parties.67 The situation was very different for those, however, who were outsiders
in the community in which they were arrested. Robbers and highwaymen with
no ties to local communities had a good chance of ending up on the gallows.
The notaries and judges of the Penitentiary regularly read dramatic stories about
such executions. Clerics robbed and wounded on the road in their petitions tried
to explain how they were forced by the villagers or townspeople, who arrested
and sentenced to death their assaulters, to take an active part in the hanging.
In a world of social reciprocities, only the offended party could initiate a suit,
and when he was himself an outsider to the community that took action against
his robber, he was also expected to participate in performing the punishment.68
Clerics placing the knot on robbers’ necks were thus pushed to play the extremely
worldly role of hangmen, and had a difficult time when trying to justify such an
65
For example in 1464, 190 florins were paid as homagium to the sister of a killed
priest, called Sebastianus, by a noble servant of the Amadé Várkonyi family according to their
agreement before the archdiocesan court of Esztergom. Magyar Nemzeti Levéltár Országos
Levéltára [The National Archives of Hungary], Mohács előtti Gyűjtemény [Pre-Mohács
Collection], Diplomatikai Levéltár [Archive of Medieval Charters], DL 48650. See also
Monumenta Romana, vol. 3, pp. 279−80.
66
Carroll, Blood and Violence, p. 128.
67
In the Transylvanian town of Nagyenyed (Aiud, Romania), an adulterous woman
whose lover killed her husband in a fist-fight was sentenced to death. As a result of a private
agreement of the parties, the woman was not executed, but was sent on a penitential
pilgrimage and was forbidden to marry her lover. APA, vol. 48, fols. 475v–476r (1500).
68
On the practice of late medieval private accusations as opposed to the modern
institution of public accusations see Barna Mezey (ed.), Magyar Jogtörténet [A History of
Hungarian Law] (Budapest, 2007), pp. 357−8. As one cleric related the villagers’ stance:
‘Since the villagers did not find anything that the robber, whom they had arrested, had taken
away from them, they forced the petitioner to hang him.’ APA, vol. 2bis, fol. 146r.
activity – which entailed bodily pollution that impinged on clerical abilities to

perform rituals – before ecclesiastical authorities afterwards.69
Laurentius from Nádasd knew the ins and outs of dramatic story-telling.
He was galloping alone in deep snow across the woods − he writes, provoking
immediately the sympathy and anxiety of the reader − when highwaymen
assaulted him, took away his clothes, horse and money, cut off one of his ears and
tied him to a tree. He was just about to freeze to death when out of God’s mercy
he escaped. This was however not the last twist of his story: when he reached the
nearest village, he witnessed the following:
One of the robbers, sitting on his horse and wearing his clothes, was just presented
to the village judge, who asked him: ‘Whose clothes and money are these?’ The
robber turned towards Laurentius cleric and replied: ‘They belong to that priest.’
The judge again: ‘And to whom belongs the horse?’ ‘To the same priest’ – so the
robber answered. ‘And who cut his ear off ?’ – so the judge interrogated further.
‘I did.’
After the robber had thus confessed everything, Laurentius, as the person
offended, was forced to hang him.70 We are even able to imagine vividly the
tension that vibrated in the crowd gathered to watch the execution. ‘After he
[i.e. Laurentius] escorted the robber to the scaffold, the robber said: “I ask you
by the love of God not to hang me, just ascend and tie the knot to the column
and then leave. I have sinned against you, still I beg you to intervene for me
with God.”’ Laurentius then ascended the stairs, tied the knot and left him.
‘The robber meanwhile begged to the crowd to pray for him, after which he
jumped off the stairs and died.’71 Although priests were officially expected to
refrain from all forms of violence, let alone the execution of criminals, neither
laymen nor possibly clerics, even if they apologized thus subsequently, were a bit
concerned about this.
We can conclude, on the one hand, that the contradictions inherent in lay
expectations towards the clergy derived from the duality of their sacred and social
roles. The complexity of their status is also reflected by the language of insults,
which targeted either their priestly or their worldly honour. Playing a variety of
sacred and profane roles from hangmen to the minister of the Eucharist, they
had a difficult time in fulfilling both ecclesiastical and lay expectations. Although
they also had a family, a household and a farm, their household structure differed
On the abundance of medieval pollution taboos, see Dyan Elliott, Fallen Bodies:
69
Pollution, Sexuality, and Demonology in the Middle Ages (Philadelphia, 1998).

70
For the jus gladii (the law of the sword) of some late medieval villages, as well as
village courts announcing capital punishment, see István Szabó, A középkori magyar falu
[The Medieval Village in Hungary] (Budapest, 1969), p. 94.
71
APA, vol. 2bis, fol. 146r (1440, Iauriensis diocesis).
from those of their parishioners. Behind apparent similarities lurked differences:

between a house-maid and a wife, between a niece and a son, between moderate
drinking as opposed to drunkenness, and between the taxes paid by serfs and
their own exemption from tax.
On the other hand, with regard to the late medieval practices of the
negotiation of conflicts, we may wish to reflect on the words of Robert Cover,
a late twentieth-century American legal scholar. In a famous study he claimed
that the modern practice of law, with its formal adjudications, to be ‘a field of
pain and death’. His point was that it is a form of institutionalized violence
since it not only justifies violence that has occurred, but also occasions the
imposition of violence on others.72 Given the re-interpretations of late medieval
and early modern cultures of honour that are now under way, as well as from
recent analyses of modern societies, it is clear there is a growing body of evidence
suggesting the traditional juxtaposition of violence and law – and, consequently,
traditional and modern societies – needs to be fundamentally reconsidered.
The evidence scrutinized above reinforces the argument that they were strategic
tools invariably applied in the process of conflict negotiations.
Applying the processual model of conflict negotiations, we have looked
closely at the uses of justice and violence in a particular area, the late medieval
Kingdom of Hungary. As the sources analysed above were the products of the
workings of universal canon law as applied by a central European organ instead
of the local system of justice, their reading shed a particularly strong light on
general patterns. For one thing, my findings stress the significance of enmity as
a category central to interpersonal conflicts and their multi-layered negotiations
on a European scale. Moreover, the tendency of ordinary people to appropriate
the authority of the courts as satisfactory arenas for vengeance seems to have
gained further evidence from this particular example.
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Chapter 9
The Witch on Trial:
Narratives of Conflict and Community
in Early Modern Germany
Laura Kounine
It has long been axiomatic that witchcraft accusations in early modern Europe
arose within situations of neighbourly conflict.1 The ‘victims’ of witchcraft
accusations were more often than not embedded within the local community;
they were not, as was once thought, outsiders or on the margins.2 Rather,
neighbours, friends and even family accused one another of this most heinous
of crimes. Bitterness, resentment, envy and hatred could arise over competition
for limited resources, when one person’s economic success was seen to come
at the expense of another person’s misfortune.3 Damaged crops, sick livestock,
dying children: these could all be attributed to the malicious – even diabolical –
intent of a neighbour. The question is, then, given that living conditions in early
modern Germany were often exceptionally hard, why were so few people accused
of witchcraft by their neighbours? If witchcraft was a routine and comforting
1
See, for instance, Robin Briggs, Witches and Neighbours: The Social and Cultural
Context of European Witchcraft (London, 1996); Alison Rowlands, Witchcraft Narratives
in Germany: Rothenburg, 1561–1652 (Manchester, 2003). See also the path-breaking
anthropological work on witch-beliefs in the Azande: E.E. Evans-Pritchard, Witchcraft,
Oracles and Magic Among the Azande (Oxford, 1976).
2
The now outdated view that those accused of witchcraft were on the margins can
be found in Alan Macfarlane, Witchcraft in Tudor and Stuart England: A Regional and
Comparative Study (London, 1970); Keith Thomas, Religion and the Decline of Magic:
Studies in Popular Beliefs in Sixteenth- and Seventeenth-Century England (London, 1971).
3
See Thomas Robisheaux, Rural Society and the Search for Order in Early Modern
Germany (Cambridge, 1989), pp. 85–6. On how the idea of finite resources infiltrated
witchcraft beliefs, see Rowlands, Witchcraft Narratives in Germany, p. 152; Ingrid Ahrendt-
Schulte, Zauberinnen in der Stadt Horn (1554–1603): Magische Kultur und Hexenverfolgung
in der Frühen Neuzeit (Frankfurt am Main, 1997), pp. 229–35.
scapegoat to explain misfortune, how did anyone go through life escaping

this charge?4
The Holy Roman Empire was the heartland of the witch craze. It witnessed
the greatest number of executions of witches in the early modern period,
around 23,000, the majority of which occurred during the peak of the witch
craze between 1580 and 1630.5 Yet, despite these extraordinary numbers, it is
often forgotten that not every witch trial, much less every accusation, ended in
execution.6 Indeed, we must assume – given that, despite the alarming figures,
witch trials in most regions were relatively uncommon occurrences – that not
every suspicion of witchcraft led to a formal accusation, and not all formal
accusations led to the courtroom.7 Moreover, of those accusations that finally
culminated in official court proceedings, it is estimated that just over half
the total number put on trial for witchcraft in early modern Europe ended in
execution, with lesser punishments and fines meted out to those who escaped
this charge.8 Why might a suspicion of witchcraft not crystallize into a formal
accusation? And how might someone, if they did find themselves on trial,
defend themselves against this heinous charge and avoid a death sentence?9
4
Robin Briggs, ‘“Many Reasons Why”: Witchcraft and the Problem of Multiple
Explanation’, in Jonathan Barry, Marianne Hester and Gareth Roberts (eds), Witchcraft in
Early Modern Europe: Studies in Culture and Belief (Cambridge, 1996), pp. 49–63.
5
William Monter, ‘Witch Trials in Continental Europe 1560–1660’, in Bengt
Ankarloo, Stuart Clark and William Monter, Witchcraft and Magic in Europe, Vol. 4: The
Period of the Witch Trials (London, 2002), pp. 1–52 (p. 13).
6
Wolfgang Behringer also makes this point in his Witchcraft Persecutions in Bavaria:
Popular Magic, Religious Zealotry and Reason of State in Early Modern Europe, trans.
J. C. Grayson and David Lederer (Cambridge, 1997), on p. 32: ‘After all, not every suspicion
led to a trial, much less to the burning of a witch, a fact far too often overlooked.’ See also
Michael Ostling, Between the Devil and the Host: Imagining Witchcraft in Early Modern
Poland (Oxford, 2011), ch. 3.
7
Robin Briggs and Alison Rowlands have drawn our attention to the fact that witch
panics were the exception rather than norm in early modern Europe. See the chapter by
Nikolas Funke in this volume for a further example of the absence of conflict in situations
where one is led to expect it, for example the absence of confessional disputes among
(confessionally heterogeneous) soldiers in the Holy Roman Empire.
8
We can only work with tentative figures, since so many sources relating to the witch-
hunts have been lost or destroyed. Brian Levack has suggested that there were about 110,000
trials and 60,000 executions for witchcraft in all of Europe, which Monter suggests should
be reduced by at least one third. See Monter, ‘Witch Trials in Continental Europe’, p. 13;
see Brian P. Levack, The Witch-Hunt in Early Modern Europe, 2nd edn (London, 1995),
pp. 21–6.
9
For a further example of rhetorical strategies in legal records, see Gabriella
Erdélyi’s chapter in this volume, which examines petitions of pardon to the Pope in late
medieval Hungary.
The Witch on Trial 231
Through the rich evidence of court records, which reveal glimpses of the verbal
interactions between judges, the suspect, the accused and numerous witnesses,
two interlinked points come to the fore. First, suspicions of witchcraft could lie
latent for months, even years, and it was only when a number of different factors
coincided that an official accusation might be levied. Secondly, the trial itself
became a site where conflicts were constituted and contested. The authority of
the court and the process of putting into written word the shifting and transient
nature of verbal disputes served to concretize conflict and – with varying degrees
of success – construct a narrative of criminal intent; but those on trial could also
attempt to resist these narratives and present their own versions of the truth.
This chapter will seek to shed light on these competing processes through an
in-depth case study of a witch trial that occurred in a small town in southwestern
Germany in 1616, which ended in acquittal. The trial of Anna Müller arose out
of a neighbourly conflict. Through close readings of the trial narrative, however,
it becomes clear that there were unwritten codes of conduct which worked to
supress suspicions of witchcraft being voiced to the authorities. These unwritten
codes, in one regard, could be seen as a form of conflict ‘management’, in that
they silenced official accusations being voiced, and thus prevented an often
lengthy, expensive and potentially lethal trial process. Yet they could also foster
an environment of anxiety and fear, in which neighbours and relatives had to
suppress (with varying degrees of success) their suspicions, never fully ‘resolving’
conflicts. Nonetheless, it is clear that an official accusation of witchcraft was
not a step in the process of peacemaking between two parties. These trials often
operated as a means of legitimized violence against the accused: a means of
financial and physical extortion, a stain on the accused’s honour, and possibly
even a death sentence.10 It was not a means to ensure a settlement with which
both parties could be content. Rather, it symbolized the nadir of a breakdown
of interpersonal relations.
Indeed, the question of what the accuser hoped to gain from such a trial
process is raised: was the execution of their neighbour or even friend really
the ultimate motive? Or did the trial process perform a therapeutic function,
where the intended ‘resolution’ was to be found in an acknowledgement from
the accused of the harm done and, perhaps, a revocation of the alleged curse
or bewitchment? The latter was a risky strategy: witch trials in early modern
Germany could be unpredictable with a number of different outcomes possible,
including acquittal, fines, banishment or death. Of course, it is almost impossible
to find out how people forecast the results of formal accusations. In early
modern Germany, where capital punishment could be – and routinely was –
10
See the seminal collected volume by John Bossy (ed.), Disputes and Settlements: Law
and Human Relations in the West (Cambridge, 1983). See also the arguments put forward in
Gabriella Erdélyi’s chapter in this volume.
utilized in trials of witchcraft, it is hard to see how an accusation and eventual

trial process against a neighbour, friend or even relative could ever be a means
to reconciliation. Even if the charge did not end in death, it almost certainly did
not result in a re-building of friendship.
The Witch on Trial
Alison Rowlands has pointed out that witches were often old by the time of their
trial not because their age was a signifier of their identity as a witch, but rather
because they had a long-standing reputation for witchcraft which had finally
culminated in an official denunciation.11 This reveals two insights. First, trial
processes were only the culmination of a long history of communal processes of
dispute and settlements that we, as historians, will never be able to fully recover.
Secondly, and crucially, people could live for years in relative harmony – that
is, at least, without recourse to the judicial authorities – with someone they
thought could be a witch.12
But who was accused of witchcraft? It was not always clear what constituted
‘evil’ or a witch. Just as the common folk were uncertain whether their neighbour
could be a witch, legally trained magistrates and state officials also confronted
the opacity of truth. The Lutheran duchy of Württemberg, the largest territory
in southwestern Germany with around 300,000 to 450,000 inhabitants,
experienced relatively low levels of witch-hunting: 600 people were investigated
for witchcraft between 1497 and 1750, which resulted in 350 formal trial
procedures, of which 197 ended in execution.13 It was thus not a foregone
conclusion that a person accused of witchcraft would be convicted or executed.
Judicial procedure was dominated by Roman law and the legal code of Charles V,
See for example Alison Rowlands, ‘Witchcraft and Old Women in Early Modern
11
Germany’, Past and Present, 173 (2001): pp. 50–89. See also Briggs, Witches and Neighbours,
pp. 22–3; Eva Labouvie, Zauberei und Hexenwerk: Ländlicher Hexenglaube in der Frühen
Neuzeit (Frankfurt am Main, 1991), p. 167; Rainer Walz, Hexenglaube und magische
Kommunikation im Dorf der Frühen Neuzeit: Die Verfolgungen in der Grafschaft Lippe
(Paderborn, 1993), pp. 301–302. However, it is clear from the trial narratives that a person’s
reputation might also be a contested issue: a person was often said to have a bad reputation
by some as they were accused, but this did not necessarily mean that the accused person had
an unequivocally bad reputation.
12
See Briggs, ‘Many Reasons Why’, p. 61. Briggs contends that the question is not to
explain why witchcraft beliefs exist, but why these are invoked in particular cases.
13
Anita Raith, ‘Herzogtum Württemberg’, in Sönke Lorenz and Jürgen Michael
Schmidt (eds), Wider alle Hexerei und Teufelswerk: Die Europäische Hexenverfolgung und
ihre Auswirkungen auf Südwestdeutschland (Ostfildern, 2004), pp. 225–36, at p. 224. The
majority of those accused of witchcraft were exiled or dealt milder punishments.
the Carolina (1532), which was inscribed in territorial law in 1551 and in the
Landrecht of 1555.14 The Fifth Provincial Ordinance of 1552 first proscribed
the public practice of magic, soothsaying and other practices understood by the
framers of the law to invoke the Devil.15 The Carolina enacted strict judicial
procedures to ensure that trials were handled professionally and prudently,
with restrictive measures regarding the evidence sufficient to initiate arrest
and torture in witch trials.16 Moreover, these strict guidelines were designed to
remove any ambiguity concerning what constituted guilt or innocence. Judges
were to put witnesses under oath, review witness testimony and confessions
critically, and actively seek out material evidence.17 Evidence had to be certain,
even if consultations would delay the case.18
However, these guidelines did not easily map on to the inconstancy and
contradictory nature of human behaviour. A person could show signs of being
both evil and good; did this make them a witch? Moreover, those involved in
the trial – including the defendant, plaintiff and numerous witnesses – could
offer competing versions of the truth, also liable to change over the course of the
trial. Those on trial had to give an account of themselves in a highly formalized
setting. They were forced to remember and reconstruct events that they may
14
Paul Gehring, ‘Der Hexenprozess und die Tübinger Juristenfakultät: Untersuchungen
zur Württembergischen Kriminalrechtspflege im 16. und 17. Jahrhundert’, Zeitschrift für
Württembergische Landesgeschichte, 1 (1937): pp. 157–88 and 370–405 (p. 160). See also
Sönke Lorenz, ‘Die Rechtsauskunftstätigkeit der Tübinger Juristenfakultät in Hexenprozessen
(ca. 1552–1602)’, in Sönke Lorenz and Dieter R. Bauer (eds), Hexenverfolgung: Beiträge zur
Forschung – Unter Besonderer Berücksichtigung des Südwestdeutschen Raumes (Würzburg,
1995), pp. 241–320 (p. 246); Sönke Lorenz, ‘Der Hexenprozeß’, in Sönke Lorenz (ed.),
Hexen und Hexenverfolgung im deutschen Südwesten (Ostfildern, 1994), pp. 67–84 (70–71);
Helga Schnabel-Schüle, Überwachen und Strafen im Territorialstaat: Bedingungen und
Auswirkungen des Systems Strafrechtlicher Sanktionen im Frühneuzeitlichen Württemberg
(Cologne, 1997), pp. 37, 81, 216–18.
15
Raith, ‘Herzogtum Württemberg’, p. 231; Edward Bever, The Realities of Witchcraft
and Popular Magic in Early Modern Europe: Culture, Cognition, and Everyday Life
(Basingstoke, 2008), p. 352; Gehring, ‘Der Hexenprozess und die Tübinger Juristenfakultät’,
pp. 167–9.
16
Johannes Dillinger, ‘Evil People’: A Comparative Study of Witch Hunts in Swabian
Austria and the Electorate of Trier, trans. Laura Stokes (Charlottesville, 2009), pp. 3, 28; see
Die peinliche Gerichtsordnung Kaiser Karls V. (Carolina), ed. Friedrich-Christian Schroeder
(Stuttgart, 2000).
17
Dillinger, ‘Evil People’, p. 28.
18
Thomas Robisheaux, The Last Witch of Langenburg: Murder in a German Village
(London, 2009), p. 56. For an overview of crime and punishment in early modern Germany
see, for example, Richard van Dülmen, Theatre of Horror: Crime and Punishment in Early
Modern Germany, trans. Elisabeth Neu (Cambridge, 1990); Richard J. Evans, Rituals of
Retribution: Capital Punishment in Germany, 1600–1987 (Oxford, 1996).
have long forgotten. They had to recast incidents in the context of an accusation
of witchcraft. Seemingly harmless events were suddenly cast in a sinister light.
Intentions and emotions had to be reconstructed days, months or even years
later. Witness statements as well as the complaint brought against the accused
could contradict or call into doubt memories. Pressure was put on the accused
with a list of questions designed to shape the course of the trial narrative.19 All
these pressures could lead to changes in the story as the person on trial tried to
remember and re-interpret past events. Could they have harboured intention to
harm and not even realized it?
Witch trials in the duchy of Württemberg therefore did not start with the
premise that the suspect was unequivocally a witch. As Robin Briggs points
out, ‘witchcraft is itself a reification, an imposed category whose boundaries
are anything but clear’.20 Rather, the trial narrative demonstrates the process of
the construction of that criminal identity.21 In this sense, then, the trial process
worked to solidify and concretize crime and conflict, rather than to resolve it.
Although Württemberg widened the definition of witchcraft to include the
diabolical pact, in cases of suspected maleficium or harm it was still necessary to
work out causality.22 It was not easy to establish or prove retrospectively whether
the person on trial had harboured intention to harm.23 The purveyors of justice,
as well as those who used the court, all sought to find out who and what the
witch was. Physical signs had to be ‘read’ as did comportment, emotions and
19
There was no standardized questionnaire put to witchcraft suspects in witch-trials in
Württemberg (except for the theological articles, about which suspects were almost always
questioned), and in most cases it is not stated what questions were put to the suspect during
the interrogation. Nonetheless, it is likely that questions would have been put to the accused
witch during the interrogation procedure.
20
Briggs, ‘Many Reasons Why’, p. 53.
21
Peter Rushton argues that ‘Judicial decisions resulted from public performances of
narrative accounts, which, by being accepted, became authoritative versions of reality.’ Peter
Rushton, ‘Texts of Authority: Witchcraft Accusations and the Demonstration of Truth in
Early Modern England’, in Stuart Clark (ed.), Languages of Witchcraft: Narrative, Ideology
and Meaning in Early Modern Culture (Basingstoke, 2001), pp. 21–39 (p. 24).
22
Thus Rummel argues, after an incident of harm, the victim would often think back
to which person they had had recent contact with who would be most likely to inflict such
harm. Walter Rummel, ‘Vom Umgang mit Hexen und Hexerei: Das Wirken des Alltags
in Hexenprozessen und die Alltägliche Bedeutung des Hexenthemas’, in Gunther Franz
und Franz Irsigler (eds), Methoden und Konzepte der Historischen Hexenforschung, Trierer
Hexenprozesse, vol. 4 (Trier, 1998), pp. 79–108 (p. 91). On the definition of witchcraft
in Württemberg see H. C. Erik Midelfort, Witch Hunting in Southwestern Germany,
1562–1684: The Social and Intellectual Foundations (Stanford, 1972), p. 51.
23
See Robisheaux, Last Witch of Langenburg, p. 232, on guilty feelings and troubled
conscience.
conscience.24 Reputation within the community as well as behaviour and

conduct on trial were further indicators of guilt or innocence. Evidence and
experience had to be verified and weighed up. As the following trial attests,
such scrupulousness in trial procedure could also work to exacerbate doubt, not
eradicate it.
The trial record not only reveals the culmination of breakdown of communal
relations, but also offers a lens on the interaction between state and popular
processes of dispute settlement.25 The ‘consumers’ of justice were not merely
passive recipients of the hands of the state, but could instigate, shape and
manipulate the trial proceedings.26 The accused were also able to provide their
narratives of defence. Robisheaux has eloquently summarized this process for
the small German territory of Hohenlohe:
The court adviser carefully scripted each and every one of the interrogations.
It was as if he were writing out the scenes of a play, the parts of the leading
characters already roughed in, and space for the dialogue blocked out. Only their
statements were unknown. But the actors retained the power to reveal or conceal
their own characters, to add and subtract from the script, to surprise and even to
thwart the playwright.27
How did the arms of the state – judges, magistrates, pastors – navigate the
strict legal code and the ambiguities of what constituted innocence and guilt?
Moreover, how did the consumers of justice attempt to instigate, shape and
manipulate the trial proceedings? And how did the accused attempt to give an
account of themselves in this formalized setting? The witch-trial record provides
the historian glimpses of the interaction between these parallel attempts to
shape the criminal process. How these various parties understood and sought
to identify the ‘witch’ in the context of the trial process will be the subject of the
remainder of this chapter.
24
For a brilliant in-depth study of one witch trial, see ibid.; on this point, especially
pp. 61–2. On pain, truth and the body see Lisa Silverman, Tortured Subjects: Pain, Truth, and
the Body in Early Modern France (Chicago, 2001).
25
As is argued in David Warren Sabean, Power in the Blood: Popular Culture and
Village Discourse in Early Modern Germany (Cambridge, 1984).
26
On the ‘users’ of the judicial system see Daniel Lord Smail, The Consumption of
Justice: Emotions, Publicity, and Legal Culture in Marseille, 1264–1423 (Ithaca, 2003).
See also Martin Dinges, ‘Justiznutzungen als Soziale Kontrolle in der Frühen Neuzeit’, in
Andreas Blauert and Gerd Schwerhoff (eds), Kriminalitätsgeschichte: Beiträge zur Sozial-
und Kulturgeschichte der Vormoderne (Konstanz, 2000), pp. 503–44.
27
Robisheaux, Last Witch of Langenburg, p. 62.
Conflict and Community
Anna Müller, accused of killing another woman’s child through the means
of witchcraft, was put on trial in 1616 in Münchingen, a town near Stuttgart
located in the district of Gröningen. Anna Müller had been suspected of causing
harm to the child through witnessed, albeit ambiguous, physical acts, such as
breathing on the child and lifting it out of its cot. She was also under suspicion
because of her ill-repute and behaviour before and during the period when
the harm had occurred. It was this kind of intangible evidence with which the
bailiff was presented. The bailiff, Hans Valentin Schindelin, had to evaluate
the defendant’s and plaintiff ’s statements, and assess whether seemingly mundane
events had a sinister motive behind them.28 The bailiff ’s report went as follows:
in December 1616, Elisabeth, the wife of the blacksmith Hans Heinssen, had
publicly accused Anna Müller, a ‘poor person’, of killing her child through the
means of witchcraft. According to Elisabeth, had Anna not come to her house,
or lifted her child out of its cot, it would still live.29 Elisabeth was referring to her
baby son Jörg, who had been born in April 1616. Jörg was the fourth child – and
first son – of Elisabeth and Hans. The third-born child of Elisabeth and Jörg,
Catharina, had died earlier that year.30 Elisabeth had already been suspicious
of Anna since she had heard worrying rumours from two other women. These
women were of the opinion that their own children would not have died, had
Anna not breathed upon them.31
This rumour and suspicion of Anna had remained at an informal level,
however, since, ‘these two women, on God’s command, and because of kinship
[Freundschaft], had not wanted to accuse anything’.32 That these two women had
not wanted to accuse Anna of witchcraft because of kinship was understood by
28
Eberhard Emil von Georgii-Georgenau (ed.), Fürstlich Württembergisch Dienerbuch
vom IX. bis zum XIX. Jahrhundert (Stuttgart, 1877), p. 438. Hanns Valentin Schindelin had
only taken on the role as bailiff of Gröningen in November 1616, after the death of Hans
Christoph Herbst on 12 November 1616.
29
Hauptstaatsarchiv Stuttgart (hereafter referred to as HtStASt), A209 Bü 999, Anna
Müller, 10 December 1616, fol. 1r.
30
Hans Heins and Elisabeth had borne four children by the time of this trial: in 1610,
Anna Maria was born; in 1612, Agnes was born; in 1614, Catharina was born; and Jörg
was born in 1616. Landeskirchliches Archiv Stuttgart, Kirchenbuchfilme Nr. 509 (Taufbuch
Münchingen 1569–1630) and Nr. 511 (Totenbuch Münchingen 1596–1730).
31
HtStASt, A209 Bü 999, Anna Müller, 10 December 1616, fol. 1r.
32
HtStASt, A209 Bü 999, Anna Müller, 10 December 1616, fol. 1r, ‘welche zway
Weiber aber, es Gott beuehlen: vnnd vmb freundtschafft willen, nichts geclagt haben wellen’.
On meanings of family and friendship, see Naomi Tadmor, Family and Friends in Eighteenth-
Century England: Household, Kinship and Patronage (Cambridge, 2001). Today the word
Freundschaft means ‘friendship’, but in the seventeenth century could also mean kinship.
all, including the authorities. We learn later that one of the women was the wife
of Anna’s husband’s brother. One may suspect a member of kin of evil misdoings,
but this was something to be worked out amongst oneselves. Only when these
informal reconciliations broke down should higher authorities be called upon to
mete out justice. Indeed, Jonathan Durrant has shown that, in Eichstätt, where
witch persecutions were driven largely ‘from above’, local inhabitants often
refused the role of witnesses against their suspected neighbours.33
This resistance to lodge an official accusation on the grounds of suspected
witchcraft indicates that the communal notions of witchcraft may have been
different from judicial notions; it suggests a sense that witchcraft might be
performed by a number of people, and it was not something one necessarily took
to court. It thus could imply that the common folk distinguished between the
‘witch’ as an essentialist category of evil, and the ‘practice’ of witchcraft, which
could be carried out by almost anyone.34 There could be a further reason why
these two women were reticent of accusing Anna publicly: rather than holding a
separate notion of witchcraft to the legal authorities, perhaps they simply did not
see the law court as the preferred route to resolve any suspicions they harboured
against Anna. If they hoped for an apology or even a revocation from Anna, for
instance, a face-to-face confrontation might have been far more effective and
efficient than a lengthy, costly and potentially lethal trial process. An official
accusation against a suspected witch could rarely, if ever, in the context of the
fearsome witchcraft persecutions that swept early modern Germany, be a means
to peacemaking.35 Rather, the trial process solidified suspicions, rumours and
gossip and cemented them as firm, permanent – and potentially fatal – enmities.36
33
Jonathan B. Durrant, Witchcraft, Gender and Society in Early Modern Germany
(Leiden, 2007), p. xviii.
34
Azande, for instance, distinguish between witches and sorcerers. ‘Azande believe
that some people are witches and can injure them in virtue of an inherent quality. A witch
performs no rite, utters no spell, and possesses no medicines. An act of witchcraft is a
psychic act. They believe also that sorcerers may do them ill by performing magic rites with
bad medicines’. Evans-Pritchard, Witchcraft, Oracles and Magic, p. 1. As Evans-Pritchard
observes, however, Azande are not concerned whether someone is a witch inherently – that
is, in ‘the static condition of being a possessor of witchcraft’ – but only with witch-activity.
‘Zande notions of witchcraft express a dynamic relationship of persons to other persons in
inauspicious situations. Their meaning is so dependent on passing situations that a man is
scarcely regarded as a witch when the situation that evoked an accusation against him has
disappeared’. See ibid., ch. 3, and on this point, p. 48.
35
This is in contrast to accusations against potential witches in situations where the
death penalty for witchcraft was rarely utilized, for instance among the Azande. Here,
accusations against friends and neighbours would elicit an apology and revocation which
would then effect peacemaking between the two parties. Ibid., ch. 3.
36
In contrast to an official accusation, David Sabean suggests, female gossip,
Weibergeschwätz, was a form of public gossip that neither men nor the authorities would
And it is likely for this reason – because of the transformative effects of the
trial process – that so few people sought to take their suspicions of witchcraft
to court.
Returning to the trial of Anna Müller, we are thus told that her accuser,
Elisabeth, had already been suspicious of Anna for some time, or at least that was
how she re-remembered her feeling towards Anna before the fateful incident.37
Speaking before the bailiff and the court, Elisabeth outlined the events that led
(eventually) to the death of her child, and the subsequent accusation against
Anna. After Elisabeth had come out of the Kindbett (the lying-in period
following childbirth), she had gone on the first night to a sermon. She had
asked a poor woman, Barbara, the widow of Hanns Angels, to watch over the
child. She had ordered Barbara not to lift the child up out of the cot, but to
leave it lying.38 During this time, Anna Müller had come into the house and
lifted the child out of its cot. Elisabeth and her husband, on their return to the
house, came home to find Anna standing by the window, holding the child and
stroking it on its back. Elisabeth took her child from Anna and confronted the
woman. It was this sequence of events that culminated (eventually) in Anna
being taken into custody and held in prison.39 In this way, it is not surprising
that this accusation of witchcraft would be made against a woman. The victim
was a child, and the perceived chain of events all occurred within a specifically
female domain of child-care. When Elisabeth sought someone to blame for the
misfortune of her child, it was quite clear that she would look to her female
friends to assign culpability.40
have had to pay formal attention to. David Warren Sabean, Property, Production, and Family
in Neckarhausen, 1700–1870 (Cambridge, 1990), p. 82.
37
Gibson suggests that ‘victims see what they expect to see after a quarrel with the
witch, and their perception thus adjusts reality even before their articulation of the incident
in words further shapes their experience into a neat, coherent tale’. Marion Gibson,
‘Understanding Witchcraft? Accusers’ Stories in Print in Early Modern England’, in Clark
(ed.), Languages of Witchcraft, pp. 41–54, quotation from p. 46.
38
39
HtStASt, A209 Bü 999, Anna Müller, 10 December 1616, fol. 2v.
40
Ostling makes a similar point in explaining the propensity of women to be accused
of witchcraft, in particular in Poland, where women made up 92 per cent of those accused.
He argues ‘it was women who helped each other out and sought each other’s advice over
the healing of their children, and thus women who were blamed when things went wrong’.
See Ostling, Between the Devil and the Host, p. 43. Ostling also suggests that a witchcraft
accusation depended less on suspicious acts or reputation than on confirming subsequent
misfortune. If a person experienced sudden misfortune, they would then look around for
likely agents. See ibid., ch. 3, and on this point in particular, p. 66. For the thesis that women
were accused of witchcraft because they were believed to harm fertility see in particular
Lyndal Roper, Witch Craze: Terror and Fantasy in Baroque Germany (New Haven, 2004).
Shortly after Elisabeth’s testimony, Anna was questioned by the bailiff. She
admitted that she had lifted the child up, with only good intention, and had
not hurt it. However, she quickly recanted her words, and said, ‘she does not
know if she had lifted the child up’.41 Anna claimed that, ‘her whole life long
has never had anything wrong in her mind [Sinn], or done anything wrong, not
to mention what is now thought of her and accused of her’.42 Finally, reported
the bailiff, Anna confessed that it was true that she had lifted the child up, and
that Elisabeth had taken the child out of her arms, but she explained again that
she had her whole life long never had anything wrong in her mind.43 The fact
that Anna repeatedly referred to her mind, Sinn, is highly significant. It suggests
an understanding of witchcraft predicated on harmful intention as necessary
to effect harmful deeds. It thus underlines a view of witchcraft as a crime of
the mind or conscience, and further illuminates why, in this understanding,
witchcraft was such a hard crime to prove. Only the accused themselves could
know if they had harboured intention to harm.
Elisabeth based her accusation on a tenuous chain of events. Elisabeth
contended that in the 13 weeks after Anna had been seen holding and
stroking her child, it became troublesome and suffered pain. The evidence that
confronted the magistrates was based on emotions and the relationship between
two people. The magistrates, following the code of the Carolina and Landrecht,
needed precise indicia and evidence in order to work out the objective truth, and
Elisabeth herself needed further proof to cement her accusation.44 For Elisabeth,
there was no clearer indication of Anna’s guilt than the fact that Anna had not
come to show her sympathy for the child’s illness until after its death.45 Only then
had Anna come to offer her condolences. Although informal and out of sight of
the official gaze of the state judicial authorities, there were clearly strict rules on
For witchcraft accusations within a specifically female sphere see Ahrendt-Schulte,

Zauberinnen in der Stadt Horn.
41
HtStASt, A209 Bü 999, Anna Müller, 10 December 1616, fol. 2v, ‘Nachdem aber
besagte anna, heut dato wider examiniert worden, Bekhendt selbige anfangs, sie hab daß Kind
gleichwohl aufgeheben, aber Jn allem guetem, vnnd sey ihr doch nicht versehrdt worden,
zeucht aber gleich ihre reden wider zuruckh, vnnd sagt, wise nicht, ob sie dz Kindt aufgehoben.’
42
HtStASt, A209 Bü 999, Anna Müller, 10 December 1616, fol. 2r, ‘hab sie doch Ihr
lebenlang nichtz Vnrechts Jm Sinn gehabt, oder gethun, gesschweigen was man ihr jetzo
Zuetraw vnnd beschuldige’.
43
44
Indicia was circumstantial evidence; while it could not constitute proof and thereby
determine guilt or innocence, it did determine whether the suspect was examined under
torture. See John H. Langbein, Torture and the Law of Proof: Europe and England in the
Ancien Regime (Chicago, 2006), see especially pp. 8, 49. See also Die peinliche Gerichtsordnung
Kaiser Karls V., Articles 22, 62, 67.
45
HtStASt A209 Bü 999, Anna Müller, 10 December 1616, fol. 2r.
how one should act as a good neighbour. Friendship, kin and neighbourliness
could transcend rumours of witchcraft, as the other two women’s resistance to
putting forward an accusation against Anna attests. On the other hand, failure
to live up to neighbourly norms could fuel witchcraft suspicion.
Kinship could serve as an even stronger protection than friendship:
accusations between family members, particularly blood relations, were
relatively rare; conversely, however, the authorities might lend more weight to
an accusation between family members.46 It was noted that the two women who
had also suspected Anna of witchcraft had not wanted to accuse her because
they were related to her.47 The trial process attempted to freeze all emotions and
relationships at a particular point in time and thus make it easier to pick out
certain offences that, in the normal course of life, would have been forgotten
about or included in a general disposition towards somebody. Witnesses and
detractors were asked to give statements under oath, and for these to be definite
and unchanging. Yet these trial narratives reveal the resistance of people to
provide categorical, fixed statements. It was a strategy, one that historians, if
carefully attuned to the narrative, can read: a form of legible resistance. The trial
process was meant to reveal a ‘fixed’ identity of good or evil; statements by those
embroiled in the trial process tended to be unstable and inconstant.
Mind and Body on Trial
While the Carolina sought to ensure that the legally trained and professional
judge was able to reach an objective judgment, responsibility to uncover the
‘truth’ lay – to an extent, at least – with the accused. This helps explain why
confession was paramount. Since confession was the queen of proofs, the
defendant thus had to be willing – or forced – to provide the ‘evidence’ needed for
their sentence.48 Moreover, the suspect was expected to look within themselves
to discover if they were evil. John Langbein explains, ‘Because crime had been
See for example Rowlands, Witchcraft Narratives in Germany, p. 32. Kinship could
46
also have a negative effect if a family member had previously been accused of witchcraft,
particularly if it was the mother. For example, it was noted that Hans Rueff had a bad
reputation, especially since his mother had been strongly suspected of witchcraft. See
HtStASt, A209 Bü 1431, Michael Ruoffen Witwe und Sohn, 11 April 1631, fol. 2v. On
connections between kinship and witchcraft accusations and beliefs, see Sabean, Power in the
Blood, pp. 32–3, 107.
47
HtStASt, A209 Bü 999, Anna Müller, 10 December 1616, fol. 3v, ‘Die zway weiber,
denen oben eingangs Vermelding beschicht, belangendt, seyen der Verhafftin Verwandt,
Vnnd wellen nichtzit mehr geclagt haben.’
48
Thomas Robisheaux, ‘“The Queen of Evidence”: The Witchcraft Confession in the
Age of Confessionalism’, in John M. Headley, Hans J. Hillerbrand and Anthony J. Papalas (eds),
equated with sin, and because sin was a matter of the individual’s exercise of
his free will, it had been essential to devise rules which reflected individual
volition.’49 Interiority as well as exteriority had to be searched for evidence.
This underlines an embodied view of subjectivity: mind [Sinn] and conscience
[Gewissen] worked in tandem with physicality and comportment. With enough
probing and meticulous assessment, the jurists believed that eventually either
the body would betray the mind, or the mind would betray the body.50
Still, evidence for Anna’s culpability or innocence was equivocal at best.
There was no clear indication either way as to whether Anna had committed the
crimes of which she was accused. Her interrogators thus had to scrutinize Anna’s
comportment on trial and her physicality. Could the way she gave an account
of herself, in the setting of the courtroom, shed any light on whether she was
innocent or guilty? Indeed, her comportment did not suggest she was wholly
innocent. The bailiff reported that, ‘the prisoner, with her behaviour, without
shedding a single tear, cheekiness, and lack of fear’ should not be let out of prison,
even though she did not want to confess anything and had been ‘inconsistent’.51
A witch was someone devoid of human emotion; she was dry and her heart was
cold. In the early modern medical understanding of the body, the heart swam
in water. As Ulinka Rublack has explicated from a medical report in a 1652
witch trial in Rothenburg ob der Tauber, this belief was significant for how the
interrogators identified a witch:
The motion of the heart sent the water into an artery leading to the head and
from there to the eye, ‘out of which tears then arise’. The heart of a witch could
no longer be moved because it was dried up and the surrounding water with it.52
Confessionalization in Europe, 1500–1700: Essays in Honor and Memory of Bodo Nischan

(Aldershot, 2004), pp. 175–205.
49
John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France
(Cambridge, MA, 1974), p. 170.
50
On understandings of the early modern body and mind as interdependent, see
Barbara Duden, The Woman Beneath the Skin: A Doctor’s Patients in Eighteenth-Century
Germany, trans. Thomas Dunlap (Cambridge, MA, 1991).
51
HtStASt, A209 Bü 999, Anna Müller, 10 December 1616, fol. 3r, ‘So Jst auch die
Verhafftin, mit ihren geberden, ohne Vergießung ainicher trenen, frech, vnd Vnerschrockhen,
Weyl sie aber mit Ihrer bekanndtnuß gantz Vnbestendig Vnnd Wanckhelmiethig, hab Jch …
sie der gefenckhnüßn nicht erlaßen wollen.’ As Rushton notes, consistency on trial was so
crucial as it was regarded as proof of truthfulness. See Rushton, ‘Texts of Authority’, p. 25.
52
Ulinka Rublack, ‘Fluxes: The Early Modern Body and the Emotions’, History
Workshop Journal, 52 (2002): pp. 1–16 (p. 7). On ideas of flow and fluxes, and how these
could become ‘clogged up’, see Duden, Woman Beneath the Skin. It should be noted that
this was the medical understanding of tears and the cold and dry body of the witch. While
the magistrates may have been aware of these medical notions, it is unlikely that the accusers
Being ‘dry’ thus meant that one could not cry; it was a sign of evil. Inconsistency,
moreover, was seen as a particularly female vice.53 Anna Müller may have denied
all charges, but her inconsistency and lack of tears certainly did not bolster her
case. What was she trying to hide?
Having decided to keep Anna under arrest, the bailiff sent his report on
the evidence he had collected to the duke and awaited further advice. It was
recommended by the Oberrat (the high council) to the bailiff that not only
the two women who had also suspected Anna of witchcraft but also others
be questioned, so that a fuller picture of what Anna did and how she behaved
could be painted.54 Anna was questioned again 16 days later (although not
under oath) ‘to show the truth’.55 Elisabeth and her husband stuck to their
earlier testimony, although Elisabeth added details that had not previously been
noted in the report. According to Elisabeth, she had at once taken her child
off Anna, who was holding it. Elisabeth had confronted Anna: she ‘shook her,
why was she doing this, and not letting her child lie in its cot?’56 The fact that
Elisabeth reiterated that she had confronted Anna at the time indicates that the
latter would have known the suspicions held of her before she went to trial. This
also underlines the fact that a formal accusation to the authorities was not the
first port of call in instances of suspected witchcraft practice among neighbours.
Perhaps Elisabeth had hoped this confrontation would provoke Anna into
offering a counter-curse, or at the very least appease Elisabeth’s suspicions. To
this extent, then, neighbours took matters into their own hands when a dispute
arose; they did not only leave such grievances to the arena of the courtroom.
and accused would have been familiar with this medical understanding. Nonetheless, as
Lyndal Roper and Michael Ostling have demonstrated, the opposition of dry and moist,
withered and fat was a wider structuring principle, subsuming both Galenic and peasant
understandings. See Roper, Witch Craze; Ostling, Between the Devil and the Host, especially
pp. 43–4, 123–32. I would like to thank Michael Ostling for these helpful comments.
53
Ulinka Rublack, The Crimes of Women in Early Modern Germany (Oxford, 1999),
p. 57.
54
HtStASt, A209 Bü 999, Anna Müller, 11 December 1616, fol. 5v. Anna was
interrogated again by the executioner and questioned over the theological articles, although
it is not stated in the report what conclusions were drawn from this mode of questioning.
The report continued, ‘volgendts sie neben dem Spetiali so wol uber die Theologische articul
allß auch sonsten vnder die wider Sie einkhommen puncten nochmalen mit allem ernst vnnd
beträhung nachrichters examinieren’.
55
HtStASt, A209 Bü 999, Anna Müller, 27 December 1616, fol. 6v, ‘obangedeute
weibs Persohnen, fur Vnnß erfordert vnnd neben genugsamer errinerung, zur anzaig der
wahrheit, die verhafftin aber mit grund nicht zu beschwören, nochmahlen examiniert’.
56
HtStASt, A209 Bü 999, Anna Müller, 27 December 1616, fol. 6v, ‘das sie ihr Kind,
der verhafftin vom arm … hin wegkh genommen, vnnd da selbige hieryber geschollten,
warumb sie das thüe, vnnd ihr kind nicht Jn seiner weigen ligen laßen’.
The child’s minder, Barbara, came forward with more incriminating evidence.
She had ‘witnessed the suspect stroke back and forth not only the child’s back,
but also its thighs, so that it went blue’. She did not leave the child alone after
the first night out of fear; the child began to sweat profusely.57 It was possible to
see where the child had been gripped, out of which black material leaked. After
the child died, Elisabeth inspected the body and saw three welts on its thighs. It
was her opinion that, had the suspect not lifted the child up, it would still live.58
Interestingly, the question of agency does not seem to arise in this trial.
A means (touch, stroking) was posited but not dwelt on: there is no theory of
how or why this works, no mention of a spell or curse, no invocation of the
Devil. That is to say, the bailiff seemed intent on finding out whether Anna had
intended to harm, but there was little discussion of how she may have enacted
these intentions. Touch with evil intent was all that was necessary. Anna firmly
placed her resistance in her clear conscience and emphasized that she had never
had anything wrong in her mind (Sinn), suggesting a shared understanding that
harmful intention was the primary signifier of witchcraft. There was, strikingly,
no mention of the Devil throughout the trial. This shows that in Württemberg,
even after the Landesordnung of 1567, which recognized that the fundamental
crime of witchcraft lay in the pact with the Devil, one could still be convicted
as a witch for maleficium alone, so a confession of a pact with the Devil was not
necessary in order to be sentenced. Yet this still left the question of agency open:
could anyone in theory engage in maleficium if they harboured the intention
to do so? Or did someone have to be intrinsically evil, to have renounced God
and Christendom – in other words, did they have to be a ‘witch’ – in order to
harm someone else? In Italy, for instance, a distinction was often made between
sorcery and formal apostasy to the Demon – only the latter made someone a
witch, at least in the eyes of the Inquisition.59 It is never made clear in this trial
exactly what the ‘witch’ was conceived to be, nor where she should get the power
and agency necessary to do harm.
57
HtStASt, A209 Bü 999, Anna Müller, 27 December 1616, fol. 6v, ‘Dann gleich wie
deß Kindts wärtterin, Barbara Hans Angelß Wittib, ein arm weib, bezeugt, daß verhafftin,
dem Kind, nicht nur das Ruckhen, sonder auch die Schenckhelin, vorder vnnd hinderwartz
gestrichen, daß solche Blaw worden, hab das Kind nit allein gleich nach die erste Nacht, ohne
Zweiffel Vßer angst, starckh anfangen Schwitz.’
58
59
Mary O’Neil, ‘Magical Healing, Love Magic and the Inquisition in Late Sixteenth-
Century Modena’, in Stephen Haliczer (ed.), Inquisition and Society in Early Modern Europe
(London, 1987), pp. 88–114 (pp. 105–6).
Witnesses, Oaths and Equivocation
The witness statements of the two women who had also suspected Anna of
harming their children were examined. Catharina, the wife of Jerg Wintertaurs,
stated that two of her children also died from similar illnesses, and although she
had sought advice, no one had wanted to understand her, upon which she began
to suspect Anna. Anna had also come to her house when she was breastfeeding
her baby. It was as though a strong wind came from Anna, which went over
Catharina and her child and shocked her greatly. As soon as the wind came over
them, the baby fell asleep while suckling at its mother’s breast and the mother’s
milk disappeared.60 Immediately after the child woke up again, it became ill. It
was not able to breathe any more; its face became swollen and bruises appeared
which went yellow. When the swelling finally broke open, the materi that seeped
out had such a tang, she could not stay with her child. The child suffered great
pain for four and a half weeks until it died.61 During this time, ‘although the
convict had come into her house, she had not sympathized the way other women
had’.62 Significantly, Anna’s lack of sympathy towards the ill child and its grieving
parent was also one of the key grounds for Elisabeth’s suspicion against her. Did
the legal authorities understand the women’s reasons for suspecting Anna? Had
they in fact shaped the narrative by asking questions about Anna’s sympathy
towards them, or was this female discourse operating in a completely separate
realm from that of the learned men? Catharina continued, although Anna ‘had
not neglected her’, she had spoken such words, as though she could sense that
people were suspicious of her, and she had gone ‘all red in the face’.63 Catharina
saw Anna’s blushing as a physical sign of her guilt. This development had preyed
on Catharina’s mind, especially since another of her children had died two years
previously.64 Was Anna to blame for that death as well?
The bailiff, Hans Schindelin, turned next to the other woman who had held
Anna in suspicion. Agnes, Martin Müller’s wife, had suffered greatly with the
death of her child, but was not allowed to accuse Anna, presumably because she
was a family relation, albeit not connected through blood – the Freundschaft
60
This provides evidence for Roper’s contention that witchcraft fears were primarily
fears to do with fertility; see Roper, Witch Craze.
61
62
HtStASt, A209 Bü 999, Anna Müller, 27 December 1616, fol. 7v, ‘Vnder welchem
Zwahr die Verhafftin Jnn ihr haus kommen, aber nicht mittleidens gehapt, wie andere weiber,’
63
HtStASt, A209 Bü 999, Anna Müller, 27 December 1616, fol. 7r, ‘vnnd ob zwahr
sie Katherina nicht Vnderlaßen, der Verhafttin mit solchen reden zubegegnen, dadurch sie
versphüren megen, ob setze man dann argwohn vff sie, were doch sie allwegen Jm angesicht
nur aller Rothfarb worden’. On physical signs of guilt see Silverman, Tortured Subjects, p. 9:
evidence might take the physical form of blushes, silences and tears.
64
that she had earlier referred to – being her husband’s brother’s wife.65 Indeed,
she was eager to emphasize that ‘it had not come out of her mouth’, and ‘she was
not happy that it had to happen now’. Still, she was of the opinion ‘that her child
would still live’, had the defendant not breathed upon her child before it was
eight days old.66 Immediately, the child did not want to drink or eat. Within half
a year, the child had died. Agnes’s husband concluded, ‘She is not a good person;
one should do with her what one wants.’67
Yet, despite the fact that Agnes and her husband had suspected Anna of
killing their child, Agnes underlined that the accusation ‘had not come out of
her mouth’. This reinforces the point that people were often hesitant to be the
one to bring forward an accusation. People could provide witness statements, but
they might not want to assume culpability for the suspect’s sentence or provide
specifics regarding the source of a rumour or gossip.68 Perhaps it was the idea
of witchcraft as an internalized crime – a crime of intention rather than deed –
that goes some way to explaining the reticence of people to accuse unequivocally
someone else of witchcraft. They may have suspected a person of being a witch,
but they did not want to say for certain; after all, only the person themselves
could know if they were evil. This may also partly account for why relatively
few witchcraft accusations or suspicions wound up in court. Someone might be
willing to unofficially point their finger at a person they suspected, but they may
have been far less forthcoming when having to make such an accusation under
oath. Michael Ostling, in his study on Polish witch trials, suggests:
Such qualifications on the part of accusers and witnesses demonstrate how

seriously they could take the act of swearing, and the sin of swearing falsely.
Nuanced and qualified accusations also indicate the serious reservations accusers
and witnesses could have concerning the guilt of a suspected witch, reservations
65
Sabean distinguishes, within kin, between blood relations and affines (those related
by marriage). Sabean, Power in the Blood, p. 107.
66
HtStASt, A209 Bü 999, Anna Müller, 27 December 1616, fol. 7r, ‘Agneß, Martin
Müllers Weib, zeigdt ahn, sie hab auch ein groß Creitz vnnd Laid mit Jrem verstorbnen Kind
auß gestanden, aber nichts Clagen dörffen, Weyl die Verhafftin Jres Mans Bruders Weib, wie
es ihr auch nicht auß dem Mund kommen, sey ihr nicht lieb, das es Jtzo sein mueß, vnnd
bedenckhe sie doch Ihr Kindt lebt noch, Wann die Verhafftin nicht selbige hett dz Kind, Jnn
der ersten wochen ehe es achttag alt worden, Jn der wiegen geliebt vnnd angehauchzet, das
sie nichts guets darauß genommen, dann es gleich nicht mehr saugen oder essen wellen’.
67
HtStASt, A209 Bü 999, Anna Müller, 27 December 1616, fol. 7v, ‘ihr Mann aber
hab allwegen geclagt, die Verhafttin, seines Brueders weib, sey ein Keinnütz Mensch, man
mach gleich mit Jhr, waß man will’.
68
See Rowlands, Witchcraft Narratives in Germany, ch. 1.
which contributed to a general unwillingness to bring witchcraft accusations

to court.69
Read against the grain, therefore, these trials of conflict can also begin to
illuminate the processes of keeping the peace and dispute resolution.70 The two
women in the case against Anna Müller had, out of friendship and kinship, kept a
kind of peace, harbouring any resentment or suspicion away from formal judicial
proceedings. It was only when a third woman came forward, Elisabeth, who did
not appear to be restrained by these communal ties, that the two women could
also speak out against Anna. The official trial process against the witch suspect
thus marked the collapse of communal dispute resolution.
Anna still denied all accusations made against her, however, arguing that
‘injustice is done to her, had never had such a thing in mind, much less done
anyone any harm with the deed’.71 Anna’s statement underlines a view of
witchcraft predicated on both evil intention and harmful deeds. Still, Anna’s
unusual behaviour and comportment on trial continued to confuse the
interrogators. Was she stubborn because she was secure in the knowledge of her
innocence, or did her calm demeanour and lack of tears suggest that she was
cold and dry, as witches were believed to be?72 As Rublack has observed, ‘the
display of a particular repertoire of gestures and emotions was generally vital
for female suspects during criminal trials. Arms were raised, women fell on their
knees, and most importantly, tears had to flow.’73 However, magistrates were also
alert to the fact that women might simulate emotions; tears therefore had to
be heartfelt not hysterical. Indeed, Rublack argues, those under interrogation
‘walked a tightrope’. Nervousness was a sign of guilt, but so was being obdurate,
Ostling, Between the Devil and the Host, p. 72. See also Roper, Witch Craze, p. 236;
69
and Rowlands, Witchcraft Narratives in Germany, in particular ch. 1 for the reticence
of people to bring forward accusations of witchcraft because of the risk of accusations of
slander. See also Laura Kounine, ‘The Gendering of Witchcraft: Defence Strategies of Men
and Women in German Witchcraft Trials’, German History, 3 (2013): pp. 295–317, for
similar resistance from witnesses – and even plaintiffs – in unequivocally accusing someone
of witchcraft.
70
Jonathan Durrant has also argued that witch trials in Eichstätt reveal a positive and
‘optimistic’ view of the state of early modern communities. See Durrant, Witchcraft, Gender
and Society, in particular ch. 3, this point on p. 90.
71
HtStASt, A209 Bü 999, Anna Müller, 27 December 1616, fol. 8v, ‘es geschehe ihr
Vnrecht, hab dergleichen nie Jnn Sinn genommen, Vihl weniger mit der that Jemanden
schaden gethan’.
72
Rublack, ‘Fluxes’.
73
Rublack, Crimes of Women, p. 58.
which meant that the suspect was cold-blooded and therefore unable to feel
guilty and penitent.74
Anna was further questioned by the pastor and Schultheiss on the theological
articles. It was noted:
The convict presents herself as fresh, without tears, not once has a single tear fallen
from her eyes, the majority of the time shows herself with a smiling face, until
I, the Specialis, presented the Theological articles, that she began to look slightly
sweaty, and indeed she repeated [the articles] clearly and gave answers, without a
doubt in the manner of a stubborn person, until they become more serious and
see the executioner.75
The bailiff, pastor and Schultheiss then began to sketch out a brief life history.76
Anna was in the seventh year of her marriage; prior to that, she had made a living
as a seamstress.77 We later learn that Anna and her husband had two surviving
children at the time of the trial.78 Anna and Elisabeth thus shared similar family
lives, and it is evident that they belonged to the same milieu and neighbourly
network. It is plausible that Anna’s financial situation was more precarious
than that of Elisabeth’s, given that the latter was the wife of a blacksmith, while
Anna was the wife of a day labourer, but this was not mentioned by Elisabeth
in her testimonies against Anna (although the magistrates did refer to Anna as
a ‘poor person’).79 Crucially, ‘apart from the above testimonies, she [Anna] had
74
Ibid., pp. 54–60, quotation on p. 57.
75
HtStASt, A209 Bü 999, Anna Müller, 27 December 1616, fol. 8r, ‘Verhafftin steltte
sich frisch, ohne weinen, wie sie auch noch niehmahlen ainiche trenen, Vonn ihren augen
fallen laßen, sie zeight sich mehrerthailß mit lachendem angesicht, biß Jch specialis Jhrs die
Theoligsiche articul fir gehalten, hat sie sich etwaß schwaiszig sehen laßen, Jedoch aber vff selbige
deytlich nachgesprochen, vnnd antwurt geben, wie ohne Zweifel dergleichen Verstockhten
Persohnen arth vnnd gewohnheit, biß sie mehrern ernst unnd denn nachrichter sehen.’
76
In the crime of witchcraft, which left little evidence in its wake, how someone had
lived their life and the reputation they had garnered were all crucial indicia into whether
they could be guilty of this heinous crime. See for example Article 25 in Die peinliche
Gerichtsordnung Kaiser Karls V., pp. 35–6, ‘Von gemeynen argkwonen vnd anzeygungen, so
sich auff alle missethat ziehen.’
77
78
HtStASt, A209 Bü 999, Anna Müller, 10 December 1616, fol. 16v.
79
See the petitions of Anna’s husband, Jonas Müller, to the duke begging to be
excused from having to pay for the costs of the trial in HtStASt, A209 Bü 999, Anna Müller
1616–17, Grönigen, 28 April 1617 and 18 November 1617. From the 1620s, the accused,
whether let free or sentenced with a poena arbitraria, were also liable for the costs of the
trial. See Marianne Sauter, Hexenprozess und Folter: Die Strafrechtliche Spruchpraxis der
Juristenfakultät Tübingen im 17. und Beginnenden 18. Jahrhundert, Hexenforschung, vol. 13
(Bielefeld, 2010), p. 105. Schnabel-Schüle notes that supplications to the duke were almost
otherwise been free of suspicion’.80 Having the protection of a husband could

often bolster a woman’s defence against the charge of witchcraft.81
As the interrogation re-started two months later, now in the new year, Anna
Müller’s good reputation was reiterated: ‘[She] has never (so far as we know),
been in evil suspicion, except for approximately three or four months ago, a
difference between [the suspect] Anna, and Elisabeth, wife of Hans Heinssen
arose.’82 Only since this defamation was Anna now under suspicion.83 This
language of conflict is significant. According to the report, Anna only came
under suspicion because of a ‘difference’ between herself and Elisabeth. This
could potentially damage the case: the Carolina stated a known enmity between
the defendant and plaintiff made such an accusation void.84 It was re-stated that
‘In our court … before the above incident, nothing wrong was seen or heard from
Anna.’85 Nonetheless, other witnesses came forward to voice their suspicions
about Anna. As was already indicated earlier in the trial, her husband’s brother
and his wife had suspected her of witchcraft for some time.86 A separate report
from the pastor specified, in contrast, that ‘he has to his knowledge never heard
anything bad from her, except until the above mentioned time’.87 Reputation was
clearly important in trial proceedings, but it could also be a contested category.
always to do with the financial hardships of the supplicant. See Schnabel-Schüle, Überwachen
und Strafen, p. 24, fn. 75.
80
HtStASt, A209 Bü 999, Anna Müller, 27 December 1616, fol. 8r, ‘Vßerhalb obiger
aussage, Jst sie sonsten argwohns frey geweßen.’ A good reputation was crucial in surviving
an accusation of witchcraft. In another trial for witchcraft of Jacob Klein and his wife in
Sachsenheim in 1659, their good reputation was commented upon throughout the trial,
causing their interrogators to act with reticence and caution. See HtStASt, A209 Bü 1779,
Jacob Klein und sein Weib, 6 May 1659.
81
See Kounine, ‘Gendering of Witchcraft’. Walz, for example, notes that widows and
unmarried older women were more vulnerable to accusations of witchcraft because they had
less protection than married women. See Walz, Hexenglaube, p. 300. Rublack shows that in
other crimes of women, petitions by a husband, along with the legal weight of the offence and
an indication of repentance, mattered most. See Rublack, Crimes of Women, p. 66.
82
HtStASt, A209 Bü 999, Anna Müller, 25 February 1617, fol. 10r, ‘Niemahlen aber
(soviel Vnß bewusst) inn einigem bösen verdacht gewesen Ohne, alß vor vngefahrlich drey:
oder viernen Monatten einen Vneigkheit zwischen ihr anna vnd Elisabetha, hanß heinssen
haußfrawen sich erheben.’
83
HtStASt, A209 Bü 999, Anna Müller, 25 February 1617, fol. 10r.
84
See Rowlands, Witchcraft Narratives in Germany, p. 58.
85
HtStASt, A209 Bü 999, Anna Müller, 25 February 1617, fol. 10r, ‘Jnmassin
den Vnser gericht … vor obangedeuter Zeitt, etwas Vnrechts von ihr Anna weder gehörtt
noch gesehen.’
86
HtStASt, A209 Bü 999, Anna Müller, 25 February 1617, fol. 11v.
87
HtStASt, A209 Bü 999, Anna Müller, 26 October 1616, fol. 11r, ‘gibt er Jnn
anttwortt, er habe seines wissens Niemahlen erntz böß oder vnernst messiges von ihr gehört,
It is also clear that torture was administered. Indeed, torture was seen as
an intrinsic part in the compilation of evidence: if Anna was to withstand it,
she would be absolved; if, however, there was some truth to be found, torture
would be the key to revealing it. Torture was thus justified as a tool to overcome
an offender’s obstinacy.88 Anna resisted these pressures however, and it was
reported the following month that she absolved herself to the judge through
the torture she endured.89 The pastor’s positive assessment of her too worked as
a strong defence against the accusations mounted against her. Yet it was still an
ambiguous sentence; the judges had eventually, after three months of questioning,
acquiesced that no certain evidence could be found against Anna. Her (usually)
good reputation, along with her resistance and ability to withstand torture, had
meant that there was little proof to keep her incarcerated indefinitely.
Anna’s release from prison was not an unequivocal acknowledgement of her
innocence. Rather, it highlights the limits of the juridical authorities to provide
objective evidence which eliminated all doubt. There might not be proof that
Anna was guilty, but there was also no clear indication that she was completely
innocent. Anna was still required to pay the costs of her trial (a stately sum of
25 pfund, 17 schilling and 4 heller, roughly equivalent to the cost of a cow), and
she was also to be closely monitored; in effect, she had been put on probation.90
Moreover, she would have to suffer the stain on her honour and reputation of
having been accused of witchcraft, put on trial, imprisoned and tortured by
the executioner, not to mention the physical and emotional effects of such an
ordeal. Indeed, this injustice was felt not just by her, but also by her husband.
An immediate consequence of prolonged imprisonment was that a husband or
wife had to survive without their spouse’s wage and help.91 For Anna and her
husband, however, the financial burden would continue if they had to pay the
costs of the trial. In a bold move, her husband appealed the costs that Anna was
to pay.92 For Anna and her husband, the absolution was clearly not the end of
ohne biß auff obengedeute zeit’. This report seems to have taken place several months before the
official trial against Anna Müller began, in which the first report is dated 10 December 1616.
88
On the role of interrogation and torture in the construction of witchcraft narratives,
see Roper, Witch Craze, ch. 2.
89
HtStASt, A209 Bü 999, Anna Müller, 15 March 1617, fol. 13r, ‘Die verhafftin,
Annan Jonas Müllers vom Münchingen weib, verdachter hexerei halber betreffendt, so vonn
dem Richter der tortur halber absolutiert.’ Torture was also referred to in passing in an earlier
report dated 25 February 1617.
90
HtStASt, A209 Bü 999, Anna Müller, 18 November 1617. On the costs of the trial,
see also Volker Trugenberger, ‘Eine Münchingerin unter Hexereiverdacht’, Zur Geschichte
von Korntal und Münchingen (Stadt Korntal-Münchingen: 1998), pp. 65–100 (p. 80).
91
Rublack, Crimes of Women, p. 87.
92
Müller initially asked for the costs of the trial to be distributed over three re-payments,
an appeal that was agreed to. However, it became clear that Müller and his family would not
the trial: if they were to pay, they would risk poverty. This reminds us that in
Württemberg, an area of relatively low-intensity witch-hunting, even in cases
where the suspect was set free, the costs – emotional, physical and financial – of
being on trial could still be devastating.
Conclusion
Anna Müller was lucky that the trial against her did not end in a death sentence.
Yet, as is evidenced by her husband’s petition to the duke appealing the costs
of the trial, a ‘lesser’ punishment of a fine or banishment could be almost as
devastating to the family. Moreover, it is hard to see how the ambiguous sentence
which Anna received could have ‘resolved’ the conflicts between Anna and her
female friends and neighbours. She had not been found out to be a witch but
nor was she unambiguously acquitted. Given that Elisabeth had confronted
Anna as soon as she was seen holding her baby, it is clear that Anna knew she
was suspected of witchcraft, and one can surmise that Elisabeth hoped her
confrontation would effect an immediate revocation of any harmful deeds or
intentions. Since Anna had refused to acquiesce to any wrong-doing, and due
to the subsequent death of Elisabeth’s child, it seems that Elisabeth’s attempt at
informal reconciliations had failed and thus she sought the higher authorities to
mete out justice.
But what did she hope to gain? What becomes quite evident is that, in
seventeenth-century Württemberg, a witch trial was anything but predictable.
The ‘witch’, it emerges, was a highly ambiguous legal category. Indeed, while the
interrogators and those on trial converged in their ideas of harmful intention
as necessary to enact harmful deeds, there was still evidently tension in ideas
surrounding what constituted a ‘witch’. A witch could be someone who caused
harm, or someone who had made a pact with the Devil, or something in between.
This ambiguity surrounding what precisely constituted a witch is perhaps one
reason for the large number of cases in Württemberg that ended without a clear
sentence. It also goes some way towards explaining the reticence of people in
accusing someone of witchcraft. Indeed, what we find is a plurality of ideas of
what constituted a ‘witch’ that were then made to matter in particular ways by
particular people.
The trial of Anna Müller, which was predicated on communal conflict and
tensions, indicates that there were also communal codes of mediation and
be able to pay the costs of the trial at all, and he appealed again to the duke to be excused
from paying the costs of the trial altogether. This appeal was also eventually successful. See
the petitions of Anna’s husband, Jonas Müller, to the duke in HtStASt, A209 Bü 999, Anna
Müller 1616–17, Grönigen, 28 April 1617 and 18 November 1617.
reconciliation that operated separately from official recourse to the judicial

authorities. A number of women had not wanted to come forward against Anna
out of friendship and kinship; it was only when someone else accused Anna,
who had not been restrained by such ties, that these women could speak out.
This demonstrates that formal proceedings were not the first port of call for
suspicions of witchcraft and, moreover, that people could live in close proximity,
and interact with, someone they thought was capable of witchcraft. The initiation
of a trial process against a neighbour and friend was not undertaken as a means
of peacemaking and reconciliation. A capital charge against a neighbour was
another avenue to pursue a conflict, rather than a means to settle it. What further
becomes clear, moreover, is that the trial process itself was an arena in which
conflicts were constituted: witnesses and even accusers did not necessarily have
a coherent ‘fixed’ narrative of enmity which they presented to the court. Rather,
trial testimonies were inconsistent, malleable and contradictory: they were liable
to change over the course of the trial, as different actors entered the dramatic
arena of the courtroom and relationships inside and out of the arena of the trial
process were formed and contested. Crucially, then, what this trial shows is that
conflicts do not just exist and then are taken somewhere to be resolved, but
that they are formed and malleable in the process of their ‘resolution’.
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Chapter 10
Forgiving Crimes in Early Modern Naples
Stephen Cummins
Recent historical work has revealed how early modern states administered
institutions of peacemaking and mediation in order to tackle noble violence,
factional dispute and other problems of public order. A major insight of this
work is that it was through such institutions of settlement and reconciliation that
states attempted to maintain and extend their authority.1 What might appear to
have been obscure aspects of legal procedure or communal life furnished rulers
with ways to manage the behaviour of their subjects and bring faction-ridden
provincial towns under their control.2 In older scholarship some components of
this system, such as peace pacts between individuals, were regarded as medieval
survivals of marginal importance. They have now been shown to have been
central to early modern governance and legal practice, not vestiges of earlier legal
regimes. As Daniele Edigati has noted, historians have discovered that peace
pacts underwent an ‘unexpected flourishing’ in the sixteenth and seventeenth
centuries, an observation that shook the assumptions of traditional legal history.3
1
On the usages of instruments of peacemaking as zones for the extension of central
authority see the remarks of Irene Fosi, who argues that the peace agreement, a ‘relic of the
medieval past and of private justice’, became ‘a convenient instrument in the hands of judicial
officials’ in the sixteenth century. Irene Fosi, Papal Justice: Subjects and Courts in the Papal
State, 1500–1750 (Washington, DC, 2011), p. 43. Also relevant are Marco Bellabarba, ‘Pace
pubblica e pace privata: linguaggi e istituzioni processuali nell’Italia moderna’, in Marco
Bellabarba, Gerd Schwerhoff and Andrea Zorzi (eds), Criminalità e giustizia in Germania
e in Italia: pratiche giudiziarie e linguaggi giuridici tra tardo medioevo ed età moderna /
Kriminalität und Justiz in Deutschland und Italien: Rechtspraktiken und gerichtliche Diskurse
in Spätmittelalter und Früher Neuzeit (Bologna, 2001), pp. 189–213 (esp. pp. 191–2).
2
Marco Bellabarba, ‘Pace pubblica e pace privata’, pp. 195–6. See also Marco
Cavarzere’s contribution to this volume for a case study of this process.
3
Daniele Edigati, ‘La pace nel processo criminale: il caso toscano in età moderna’, in
Paolo Broggio and Maria Pia Paoli (eds) Stringere la pace: teorie e pratiche della conciliazione
nell’Europa moderna (secoli XV–XVIII) (Rome, 2011), pp. 369–410 (p. 370): ‘inaspettata
floridezza della “paci” altresì per l’intera durata dell’Ancien Régime’.
Legally instituted forms of peacemaking varied between and within early

modern states.4 In Naples the most common form was the ‘remission of the
offended party’. Prepared by a notary this was regarded as the equal of an
instrumentum pacis despite being more similar to a ‘rinuncia’, as it often combined
an act of peacemaking with the retraction of accusation. The Castilian legal
system and others had similar instruments.5 Alongside these peace treaties, truces
(tregue) and pledges ‘to not offend’ (de non offendersi) also existed and were used
for a variety of functions. The history of these Neapolitan legal institutions and
their relations to governance has only been written in piecemeal references in
more synthetic works of legal history.6
Such ‘pardons’ and ‘peaces’ did not exist in a vacuum. They had close
relations with other aspects of law that addressed crime and violence. They also
had a significant and complex role in social life. Tracing the relations between
remissions, other legal practices and social life is the goal of this chapter.
Remissions of crimes did not remain private arrangements but were central to the
‘transaction’ or ‘composition’ of crime, for which settlement with the offended
party was often regarded as an indispensable precursor.7 In early modern legal
systems negotiation, exceptions and the ability for private settlement were not
abuses; instead, they were essential parts of the realities of justice.
In the complicated constitutional reality of the Spanish-ruled viceroyalty
of Naples many aspects of governance were delegated. In this landscape the
management of remission and reconciliation was subject to fierce contest
by interest groups or individuals who sought to defend their authority or
expand their control over various aspects of the jurisdictional machinery of the
See Dante Cecchi, ‘Sull’istituto della pax: dalle costituzioni Egidiane agli inizi del
4
secolo XIX nella Marca di Ancona’, Studi maceratesi, 3 (1968): pp. 103–162. Ottavia Niccoli,
‘Rinuncia, pace, perdono: rituali di pacificazione nella prima età moderna’, Studi storici, 40
(1999): pp. 219–61.
5
Genoa had the same legal instrument, most often called ‘la pace della parte offesa’ or
the ‘remissione della parte offesa’. See the appendix ‘Alcune riforme, o capitoli circa la giustitia
Criminale di Genova’ of Delli statuti criminali di Genova (Genoa, 1590), p. 8. On the
Castilian ‘perdon de la parte ofendida’ see Francisco Tomás Valiente, ‘El perdon de la parte
ofendida en el derecho penal castellano (siglos XVI, XVII, y XVIII)’, Anuario de historia del
derecho español, 31 (1961): pp. 55–114. For Tuscan institutions of peace see Edigati, ‘La pace
nel processo criminale’, esp. pp. 373–6.
6
For some discussion of relevant issues see Pier Luigi Rovito, Respublica dei togati: giuristi
e società nella Napoli del Seicento (Naples: Jovene, 1981) and Roberto Mantelli, Il pubblico
impiego nell’economia del Regno di Napoli: retribuzioni, reclutamento e ricambio sociale nell’epoca
spagnuola (secc. XVI–XVII) (Naples: Istituto italiano per gli studi filosofici, 1986), pp. 107–8.
7
On the crafting of pardon narratives see Natalie Zemon Davis, Fiction in the
Archives: Pardon Tales and their Tellers in Sixteenth-Century France (Stanford, 1987). For the
challenges in using them as sources, see Stuart Carroll, Blood and Violence in Early Modern
France (Oxford, 2006), pp. 38–9.
Forgiving Crimes in Early Modern Naples 257
Kingdom. The tribunals and offices into which the administration of justice was
divided were sources of considerable income, and enterprising ministers could
enrich themselves through both licit and illicit revenue extraction.8 Feudatories
held much of the first- and second-instance criminal and civil jurisdiction, and
they had large stakes in retaining both the dignity and incomes of these offices.
Therefore no simple argument about highly effective state control of jurisdiction
in service of a clear or unified political agenda can be persuasive.
Despite such fragmentation in practice the viceroy and his governing
councils did aspire to administer peace on a national scale. However, the varied
legal and social spaces over which this management had to be extended meant
that this could not be a process of a growing state’s monopolization of peace
arrangements, as some narratives of state formation describe for other parts
of the peninsula. The space for movement that the viceroy and the governing
council of the Kingdom, the Collateral Council, possessed was shaped by the
challenge of the powerful baronage, the considerable operational independence
of the highest criminal court of the Kingdom (the Grand Court of the Vicaria),
the independence of the municipality of Naples and the constant fiscal pressures
that, in the first half of the seventeenth century, led regularly to capitulation to
powerful interests rather than extension of central authority.
Irene Fosi has described the private peace as ‘a hybrid device in both ideas and
institutions, at once social and legal’ which saw the convergence of three codes,
‘social honor, public law, and faith’.9 Other historians have also commented on the
sprawl of peace pacts across society and law. Massimo Vallerani has seen peaces
as partaking in many ‘planes’ or ‘levels’. For Vallerani this ‘dense intersection of
planes – juridical, religious, political – creates a continuum of uses of the peace’
which makes it difficult to isolate its procedural functions. An act of peacemaking
did not stay tidily in the legal sphere; instead it spread across different arenas of
interaction and produced various meanings.10 These questions of hybridity are
connected with studies of the origins of these pacts. Was such hybridity produced
when the central authorities began to co-opt and monopolize previously
autonomous systems of peacemaking? The view of most historians is that local
systems of dispute resolution were changed by the expansion of central forms
of justice but that the trajectories of such transformations cannot be mapped
8
The Vicaria and provincial tribunals, for example, provided 33,469 ducats of income
for the state in 1626. This came from a combination of payment for vendible offices and fees.
Antonio Calabria, The Cost of Empire: The Finances of the Kingdom of Naples in the Time of
Spanish Rule (Cambridge, 1991), pp. 140–41.
9
Fosi, Papal Justice, p. 43.
10
Massimo Vallerani, ‘Pace e processo nel sistema giudiziario del comune di Perugia’,
Quaderni Storici, 101 (1999): pp. 315–54 (p. 316).
schematically. Rather there was the survival of a ‘grey zone in which law and
informal practices mixed and where justice and peace lived cheek-to-cheek’.11
Therefore one reason historians mention intersecting planes and converging
codes when they talk about peace is that there was no single relation between
law and local arrangements of peacemaking; exact regulation, where it
existed, could easily be undermined by inventive practical uses in places where
rigorous oversight of procedural norms was impossible. But while local justice
rarely followed the abstract schematics of legal codes, the wide repertoire
of conciliatory or expiatory practices available for women and men in early
modern Italy was very often influenced by the form and content of legal
thought and process, even if they did not actually involve the staff or authority
of the judicial system. Justice and law were cultural resources as well as systems
of regulation.12
This chapter argues that in order to understand the Neapolitan state’s
attitude towards high rates of violence in the Kingdom, we must investigate
the relationship between victims and offending parties on a number of
different levels. To contextualize the engagements that the Neapolitan state
had with violent crime, revenge and the pacification of enmities, the various
logics that pervaded systems of regulation need to be considered. The legal
arrangements surrounding peace and pardon in the Kingdom could both
empower and expose those who could provide legal forgiveness. Peacemaking
must be considered both from the plural centres of the Neapolitan state and
in local contexts.
The Legal Context of Forgiveness: Accusation, Remission and Composition
After a serious crime was committed punishment was not the only possible
outcome for the offender, especially if they had managed to remain at large.
Composition of penalties remained a possibility for many offences, as did
outright forgiveness. The legal customs of the Kingdom provided numerous
routes out of punishment through negotiation, payment or indulgence.
11
Bellabarba, ‘Pace pubblica e pace privata’, p. 190: ‘zona grigia in cui si mescolano
diritto e pratiche informali e dove “giustizia” e “pace” vivono gomito a gomito’.
12
Adriano Prosperi, Giustizia bendata: percorsi storici di un’immagine (Turin, 2008).
Monetary composition remained present throughout the early modern period in

Naples.13 This was not the case in some other European states such as England.14
Pecuniary composition was underpinned by the idea that the offended parties
possessed an interest in the prosecution of their offender which they could
renounce in certain cases. In the case of violent crime or offences to honour, this
interest was described as a vendetta caused by the spilling of blood or the injury
to reputation. Across the provinces of the Kingdom the aftermath of violence
was shaped by the legal roles endowed to those involved. These particular
institutions shaped the experiences of people as they attempted to cope with the
loss of a close relative or, on the other side, sought to avoid harsh punishment for
a crime committed. The institutional frameworks of remission and composition
also created challenges for the government of Naples throughout the early
modern period.
Composition, the practice of replacing physical penalties with financial
ones, was retained in Naples in part due to baronial pressure in the early
sixteenth century. Pedro de Toledo, viceroy from 1532 to 1559, attempted to
gain control over Neapolitan society through interventionist legislation. One
strategy he attempted was the abolition of every sort of composition for crimes
that warranted either the death penalty or the cutting off of limbs, except
for perpetual services on the galleys. If this had been put into law this would
have been a radically different course for criminal justice and would have led
to many more executions and mutilations, especially amongst the nobility
who benefitted most from practices of composition. Instead, in response to
this attempt the parliament of Naples convened by Charles V requested that
13
Concerning composition of crimes in the Kingdom of Naples see Raffaele Ajello, Il
problema della riforma giudiziaria e legislativa nel Regno di Napoli durante la prima metà del
secolo XVIII, 2 vols (Naples, 1961), vol. 1, pp. 116–20. Giorgia Alessi Palazzolo, Prova legale
e pena: la crisi del sistema tra evo medio e moderno (Naples, 1987). Pecuniary punishment for
crimes had a long history in the Kingdom of Naples. A privilege for the lord of Montecalvo
from 1175 noted that offences ‘of a petty kind were compounded at six denarii; culpa
sanguinis (wounding) and defamation at fifteen denarii, as well as, apparently, adultery,
homicide, treason, and arson, when those guilty are adjudged by the men of the castellum’.
For this see Evelyn Jamison, ‘The Administration of the County of Molise in the Twelfth and
Thirteenth Centuries’, The English Historical Review, 177 (1930): pp. 1–34 (p. 21).
14
For a survey of the history of monetary composition for punishments see Stuart
Carroll, ‘Peace-Making in Early Modern Europe: Towards a Comparative History’, in Paolo
Broggio and Maria Pia Paoli (eds), Stringere la pace: teorie e pratiche della conciliazione
nell’Europa moderna (secoli XV–XVIII) (Rome, 2011), pp. 75–92; Valerio Antichi, ‘Giustizia
consuetudinaria e giustizia d’apparato nello Stato pontificio’, in Paolo Broggio and Maria Pia
Paoli (eds), Stringere la pace: teorie e pratiche della conciliazione nell’Europa moderna (secoli
XV–XVIII) (Rome, 2011), pp. 229–75.
the viceroys continue to be able to and to actually compose all sorts of crimes.15
In the same parliament a large number of petitions were made of graces to be
given to those who had gained the remission of the offended party for the crime
they had committed, such as Ferrante Cziczo, who had wounded Joan Baptista
de Marini and been sentenced to the removal of his right hand.16
The right to lodge an accusation – a complaint (querela) – was held by
the victim of a crime or their close kin.17 This was an aspect of the survival of
‘accusatory’ procedure in legal systems based upon inquisition.18 The complainer
(querelante) was a party directly affected by a crime who had the legal right to
accuse. In the case of a homicide the widow, parents or spouse normally lodged
the complaint. In a typical example, the wife of Pietro Lotta, murdered in 1657,
lodged a querela with the Regia Audienza of Lucera.19 Such accusations initiated
proceedings in many tribunals of criminal justice in the Kingdom. In the
episcopal tribunal of Conversano, the widow of the murdered Pietro Montone
lodged an accusation against his murderer, a cleric. The querela established that
‘until he is punished as the laws, and justice, happen to command, he should not
be freed without my knowledge and remission’.20 The querelante’s role was one in
need of satisfaction, with substantial de jure control over the process.
Accusations did not stay solely either within tribunals or the letter of the
law. The ability to hold someone accountable for a crime and press for action
empowered but also exposed the querelante to pressure from offenders and their
allies. The Conte di Conza, and son of Carlo Gesualdo, Don Emanuele, was
accused of having wrongly imprisoned a cleric who had refused to withdraw
a querela lodged against the murderers of the priest’s cousins.21 In 1718 in
Conversano the deacon Giuseppe Troviso was assaulted by one Domenico
Lopriore. Giuseppe’s brother Stefano had lodged a querela against Pasquale di
Vagno, to which Domenico took objection and the argument that led to the
15
Privilegii et capitoli con altre gratie concesse alla fidelissima Città di Napoli, & Regno
per li Serenissimi Rì di Casa de Aragona (Milan, 1720), p. 207.
16
Ibid.
17
Bulletino delle leggi del Regno di Napoli (Naples, 1813), pp. 255–6.
18
On the now standard account of ‘vestiges’ or ‘remnants’ of the older system of
accusatio remaining in later inquisitorial procedure see Mario Sbriccoli, ‘Legislation,
Justice and Political Power in Italian Cities, 1200–1400’, in Antonio Padoa Schioppa (ed.),
Legislation and Justice, The Origins of the Modern State in Europe, 13th to 18th Centuries
(Oxford, 1997), p. 48.
19
Archivio di Stato di Lucera [ASL], Regia Udienza, Processi Penali, busta 1, fasc. 10.
20
Archivio diocesano di Conversano [ADC], Conversano, Acta Criminalia, fasc. 29,
fol. 1r: ‘che dò querela criminale contro il detto Chierico Renna, acciò sia castigato s’income
comandano le leggi, e la giustizia, e non si liberi senza la mia intelligenza, e remissione’.
21
Archivio di Stato di Napoli [ASN], Delegazione della real giurisdizione, Processi,
busta 178, fols 7r–v.
assault started with Lopriore’s attempt to persuade Giuseppe to convince his

brother to retract the quarrel.22 Despite such abuses, the ability for querelanti to
retain control over their accusations was regarded as important throughout the
early modern period.
One of the most fundamental agreements came in the early sixteenth
century. A privilege requested from both Emperor Ferdinand and Emperor
Charles V was that in all the tribunals within the city of Naples a querela or
denuntia would be retractable for three days, establishing space for infrajudicial
negotiation or pressure.23 Part of the reason why attempts to introduce a Spanish-
style Inquisition (and even rumours of such attempts) led to violent revolt in
Naples was due to the recognition of its power to prosecute without constraint
and without space for negotiation.24 Periods of time in which settlement could
be reached outside of tribunals were prized, especially by the wealthy with the
means and clout to induce withdrawals of prosecution. An honest, unforced
retraction of a querela was framed as an act of peaceful settlement.
The retraction of a particular quarrel was often framed as true reconciliation
but to forgo the right to seek prosecution in the future a further settlement was
required, one that erased the original injury rather than simply ceased hostilities.
This erasure of the original crime was seen as essential for true forgiveness, as
the jurist Pietro Follerio worded it: ‘reconciliation presupposes remission of
injuries’.25 These acts of forgiveness were institutionalized in the Kingdom
of Naples in the form of the remission of the offended party (la remissione della
parte offesa). These remissions were seen as a necessary precondition to move to
the process of composition for homicide and other serious crimes. In trials the
offended party was understood to have a stake in the outcome, an ‘interest’, and
this was what required satisfaction. In requests for mercy, the lack of an offended
party was often stressed as a strong reason for grace to be dispensed, as there was
no one who would be offended anew by the pardon.
The importance of remission before composition was reinforced as proper
procedure by various edicts from the viceroys and the Collateral Council. As the
pragmatic De compositionibus et commutationibus poenarum clarified in 1567:
‘the admission of delinquents to composition is a form of grace; and it is our
will not to admit anybody to composition, if the remissions of all of those who
22
ADC, Conversano, Acta Criminalia, fasc. 13, fol. 1r.
23
Privilegii et capitoli con altre gratie concesse alla Fidelissima Città di Napoli, & Regno
per li Serenissimi Rì di Casa de Aragona. Confirmati, & di nuovo concessi per la Maestà Cesarea
dell’Imperator Carlo V et Re Filippo Nostro Signore con tutte le altre gratie concesse per tutto
questo presente Anno MDLXXXVII (Venice, 1588), p. 47.
24
Peter Mazur, The New Christians of Spanish Naples 1528–1671: A Fragile Elite
(Basingstoke, 2013), pp. 31–2.
25
Pietro Follerio, Canonica criminalis praxis (Venice, 1583), p. viii: ‘Reconciliatio
presupponit iniuriae remissionem’.
can justly lodge querele or accusations are not already acquired’.26 Remissions
were affirmed as a vital precondition for the composition of penalties. In the
early 1600s one commentator, the apostolic protonotary Bonifacio Vannozzi,
argued that while royal power was extensive it should not be used to remit
crimes of homicide without the remission of the parties because such an act
would be a great injustice and ‘harm anew the offended party’. He claimed that
once a viceroy of Naples had tried to forgive a homicidal bandit who held no
remissions from the kin of those he murdered but ‘a very great scandal’ ensued.27
However, while such comments reveal widespread Italian assumptions about
moral guidelines in the administration of criminal justice, in practice grace was
dispensed with much less diligence.
Despite the clear importance of remissions in the case where accusation
originally came from a querela (which meant that offended parties existed)
another question that Neapolitan jurists debated was whether remissions were
necessary even when a prosecution had begun solely from the ex officio powers to
prosecute held by barons, Regie Audienze and other authorities; that is, in criminal
cases not directly initiated by the complaint of an offended party.28 Neapolitan
jurists regularly argued for the vital importance of remissions. Giovanni Maria
Novario held that they were still necessary even when prosecution was being
carried out on the instance of more abstract representatives of justice.29 The rule
for who must provide remissions was modelled on inheritance. It was those who
had rights to inherit that needed to offer remissions.30 The Vicaria was directly
ordered by the viceroy in 1559 not to proceed to composition without having
the remissions from all of those that had the right to lodge a complaint and
accuse the wrongdoer.31
26
Domenicus Alfenus Varius (ed.), Pragmaticae, edicta, decreta, interdicta, regiaeque
sanctiones Regni Neapolitani, 4 vols (Naples, 1772), vol. 1, p. 426: ‘l’ammettere i delinquenti à
composizione è grazia; e la volontà nostra non è d’ammettere alcuno à composizione, se non
precede la remissione di tutti coloro, i quali di giustizia possono querelare, & accusare’.
27
Bonifazio Vannozzi, Della suppellettile degli avvertimenti politici, morali, et christiani
(Bologna, 1610), pp. 155–6: ‘Tento un Vicerè di Napoli, di rimetter’un bandito, senza la
remission della parte: & fù per seguirne un grandissimo scandalo. In somma il farlo, è atto di
grandissima ingiustitia, & un far nuovo aggravio alla parte offesa.’
28
Giovanni Maria Novario, Novissimae decisiones civiles, criminales & canonicae: tam
regii tribunalis audientiae provinciarum Capitantae, Apuleae, & Comitatus Mollisij Regni
Neapolis, quam causarum delegatrum, (Geneva, 1637), pp. 78–9.
29
Ibid.
30
‘De compositionibus, et commutationibus poenarum’ (1567) in Lorenzo Giustiniani
(ed.), Nuova Collezione delle prammatiche del Regno di Napoli, 15 vols (Naples, 1803–1808),
vol. 1, p. 253.
31
Ibid.: ‘a i quali di giustizia compete ragione di querelare, e di accusare i delinquenti’.
Remissions were part of justice in all its various official forms: baronial
courts, local courts of towns in the royal demesne, provincial royal courts,
ecclesiastical tribunals, various specialized courts in the Kingdom of Naples
(such as guild and military courts) and in the Grand Court of the Vicaria.
How the dynamics of remissions played out in local contexts requires careful
reconstruction; I will provide an overview of some of the consequences of
the endorsement of remissions and the views of contemporaries regarding the
process of remitting crimes.32
During the viceroyalty of the duke of Alcala (1559–71) it was ordered
that remissions should be issued solely in the presence of judges.33 However,
with delegated jurisdiction and the great territorial expanse of the Kingdom a
working control over the process was impossible. The Vicaria and the viceroys
could only react to reports of abuses and such reports must have been only a
small fraction of those that occurred. Certain categories of offenders were
excluded from the ability to transact their penalties. The particular types that
were rejected help illustrate the logic behind composition. This exclusion was an
attempt to stop outrageous crimes from escaping penalty and an attempt by the
administration to deter these offences. Those who ‘received’ bandits by offering
them accommodation or food were denied the ability to compose their crimes
in August 1560.34
Within the city of Naples the process of composition was part of the weekly
administrative schedule. Defendants or prisoners who obtained remissions in
writing could present them to the viceroy or to the regents of the Collateral
Council. Every Saturday the regents, sometimes accompanied by the viceroy,
travelled from the viceregal palace to the Vicaria to ‘give graces to the accused’.35
This could be a full removal of a punishment or a lessening of the penalty. For
minor crimes (those without seriously offended parties) the offender could
compose directly with the Avvocato fiscale.36 Compositions and transactions
32
The language can be confusing but Francesco de Jorio’s comments clarifies the
Neapolitan situation: ‘In our legal system [Foro] however we use the name remissioni, for
what in civil law [diritto comune] are called transazioni, and according to the language of
Civil Lawyers mean the commutation of penalties made by judges, we also call composizioni.’
Francesco de Jorio, Introduzione allo studio delle prammatiche del regno di Napoli, 3 vols
(Naples, 1777), vol. 1, p. 190.
33
Giustiniani, Nuova collezione delle prammatiche, vol. 1, p. 474.
34
‘De receptatoribus delinquentium, seu malefactorum’ (1560) in Giustiniani, Nuova
collezione del prammatiche, vol. 13, pp. 6–7.
35
Gregorio Grimaldi, Istoria delle leggi e magistrati del Regno di Napoli, 12 vols (Naples,
1749), vol. 2, p. 185: ‘far le grazie a’rei’.
36
Ibid.: ‘poichè possono bene i rei concordarsi cogli accusatori, e averne la remissione, e
presentandola o al Vicerè, o a’ Reggenti del Collaterale, qualora nel sabato vanno nella Gran
Corte della Vicaria a far le grazie a’ rei; ottener quella della pena, o pure il di lei alleviamento;
of penalties created considerable income for the Kingdom. In 1669, out of a

general income of 1,919,382 ducats into royal coffers 60,000 ducats came
from transactions and compositions of penalties.37 At just over 3 per cent of
royal incomes this was not a huge source of income but nor was it a negligible
amount: the sheep customhouse of Puglia, the Dogana, famed for the wealth it
brought the Kingdom, provided just over 9 per cent of the Kingdom’s income
in the same year.38
Remissions were in form and practice religious; the debates over remission
and forgiveness mirror discussions of confession.39 The obvious correspondence
was between a person’s remittance of an offence given to him or her and the
general remittance of the sins of mankind provided by the sacrifice of Jesus.40 Yet
how the legal institutions of remission and transaction were put into practice
was fundamentally shaped by power relations within Neapolitan society.
Supposedly consensual acts of forgiveness were, in many ways, situations that
exposed the injured or bereaved to intimidation and provided the powerful with
ways to escape penalty. Abuse of the systems of remission was a regular criticism
of corrupt governors and influential nobles. Capecelatro noted that in the 1630s
the criminal system was so well-disposed towards the aristocracy, that despite the
fact that they may have committed ‘strange and enormous misdeeds’ they were
always able to use their clout, and by obtaining the remission of the crimes – by
a variety of underhand methods – ‘they can easily compose their crimes’.41
In the decades after the revolution of 1647–1648 abuses in these systems were
still rife. The diarist Vincenzo d’Onofrio noted the case of the well-connected
bishop of Nocera de Pagani Bonaventura d’Avalos who, in his account, was
avaricious and immoral. Apart from managing a deft smuggling network, he set
ma inteso l’Avvocato fiscale, di cui si posson le pene comporre ancora in danajo, secondo la
qualità e gravezza del delitto; il che non però non ha luogo in tutt’i reati’.
37
Nova situatione de pagamenti fiscali de carlini 42 à foco delle Provincie del Regno di
Napoli, & Adohi de Baroni, e Feudatarij dal primo di Gennaro 1669 avanti (Naples, 1670),
pp. 465–6.
38
In the same period the Dogana of Foggia brought 177,296 ducats to the treasury. For
compositions as a source of royal income see also the 1597 report of the Venetian ambassador
Girolamo Ramusio, in Eugenio Albèri (ed.), Le relazioni degli ambasciatori veneti al senato
(appendice) (Florence, 1863), p. 348.
39
On these connections see Niccoli, ‘Rinuncia, pace, perdono’.
40
Anna Osbat, ‘“E il perdonar magnanima vendetta”: i pacificatori tra bene comune e
amor di Dio’, Ricerche di storia sociale e religiosa, 53 (1998): pp. 121–46.
41
Francesco Capecelatro, Degli annali della Città di Napoli (1631–1640) (Naples,
1849), p. 2: ‘nei delitti criminali si avea molto rispetto ai cavalieri, di modo tale che pareva
strana cosa far morire alcun di loro, lo che di rado avveniva, non ostante che commettessero
sovente strani ed enormi misfatti, i quali non guari tempo passava che, ottenuta la remissione
della parte offesa, agevolmente si componevano’.
himself up in a palazzo just outside the Porta di San Gennaro in Naples where,
for money, he arranged ‘peaces and remissions’ in favour of offenders: ‘giving
himself at full pelt to mercenary judgements’.42 D’Onofrio provides no details
on whether fra Bonaventura used threats to coerce or if he simply forged the
instruments. Another account we have from d’Onofrio is that of the prince of
Riccia. He had been outlawed but entered Naples under the cover of darkness
with armed men and forced his way into the monastery of Santo Severino. He
claimed the right of asylum to avoid being seized straight away and announced
that he had remissions from all offended parties. ‘God knows how’ was
d’Onofrio’s succinct comment on these events.43
Even those without the considerable power of a bishop or baron could
attempt to use violent force to obtain remissions. In 1632 Francisco Silvestro
and Mario Volpicella confronted Angelillo Basso as he returned from a day’s
labour. Francesco had killed Angelillo’s sister’s son and now pointed a firearm at
him, saying, ‘don’t you want to make your sister give me her remission’. Angelillo
refused and Francisco shot him and left him wounded.44 In 1664 in the town
of Morcone in northern Puglia, Diomede Fiorenza disappeared in the middle
of the night. As his father Francesco lamented, he ‘never appeared again, alive
or dead’. Francesco and others suspected that he had been murdered and his
body hidden somewhere by two men: Carlo Vasullo and Sebastiano Calabrese.
They had committed the murder, so the talk in the town went, in order to sleep
with Diomede’s wife; they had also been at enmity with Diomede for years.45
Francesco complained that ‘I’ve seen them walking about, conversing publicly
without any impediment or complaint from anybody, they come and go from
their houses to their vineyards as if they had committed no crime at all.’46 They
had not left Francesco in peace. They threatened him continually to agree to sign
the remission that would allow them to negotiate with the authorities and avoid
the death penalty, if found guilty. In this case, Francesco’s stern resolve gave him
time to summon the Regia Audienza of Lucera to investigate and Sebastiano and
Carlo fled, becoming outlaws.47
Saverio Vitiello claimed he suffered an abuse of the process of remission of
another sort. He was imprisoned in Torre del Greco for the murder of Antonio
Villano for the second time. In the original trial he had received a remission
from Villano’s kin. Now he claimed that he was re-imprisoned because the
42
Vincenzo d’Onofrio, Giornali di Napoli dal MDCLX al MDCLXXX, 4 vols (Naples,
1934–1939), vol. 1, p. 68: ‘trattava paci e remissioni delle parti offese a favore dell’offensori
per avarizia, dandosi in potere a tutta briglia all’arbitri da sgherro’.
43
Ibid., p. 210.
44
ASL, Regia Udienza, Processi Penali, busta 3, fasc. 34, fol. 63v.
45
ASL, Regia Udienza, Processi Penali, busta 3, fasc. 34, fols 4r–v.
46
Ibid., fol. 8r.
47
Ibid., fol. 353v.
Mastro d’Atti in Torre del Greco Giambattista de Marino had removed the
documentation of the remission and subsequent grace from the proceedings of
the original trial.48 This example reminds us that we cannot ignore the material
aspects of peacemaking and the legal systems; the redaction and archiving of
physical records mattered. The legal mechanics of dispute resolution created
social effects.
Another form of disorder, present even in the highest tribunals of the state,
was that correct procedure in the exercise of composition was often neglected.
Despite viceregal pronouncements the Vicaria persistently issued compositions
without the requisite remissions and also without notifying the Collateral
Council that they had done so. Apart from the damage this was said to have
done to the ‘decorum of justice’, it risked creating numerous problems for the
viceroy. The difficulties arose from the delegation of viceregal authority into the
Vicaria. The compositions arranged by the judges of the Vicaria were done in the
name of the viceroy’s authority. However, the laws of the Kingdom established
that the compositions performed by the Vicaria should only be finalized by
being read and confirmed in the Collateral. In periodic visitations by the Regent
of the Collateral the visitor was given the ability to use the ‘libro di Truglio’
(which gave the power to arbitrate cases without proceeding to a full trial)
and to provide compositions to the galleys or to another place.49 Crimes were
composed repeatedly without the accused acquiring the requisite remission.
Barons and the Abuse of Remissions
Such problems were not understood as periodic malfunctions in the justice

system. Throughout the early modern period various viceroys, jurists and others
identified the system of remitting and composing offences as a central wellspring
of disorder, for a variety of reasons. In 1566 Don Perafan claimed that one ‘of
the reasons, on account of which many dare to commit crimes, is because of the
hope that they hold of obtaining remissions of the parties’.50 This analysis held
its validity in the remainder of the sixteenth and throughout the seventeenth
century. Only months before the rebellion of Masaniello, the Duke of Arcos,
viceroy of the Kingdom, as part of a preamble to a pragmatic, wrote that by
ASN, Consiglio Collaterale, Notamenti, n.s., busta 1, fol. 518r.

48
49
Grimaldi, Istoria, vol. 10, p. 541. The truglio, another name for a form of pecuniary
composition for crimes, would come to be a widespread practice in the eighteenth century.
On this see Donato Palazzo, ‘Del “truglio” e delle sue applicazioni in Puglia’, in M. Paone (ed.),
Studi di storia pugliese in onore di Giuseppe Chiarelli, vol. 6 (Galatina, 1977), pp. 59–113.
50
‘De compositionibus, et commutationibus poenarum’ in Giustiniani, Nuova
collezione delle prammatiche, vol. 3, p. 252: ‘una de las causas, por que muchos se atreven á
cometer delitos, es por la speranza, que tienen de otener remission de las partes’.
experience it is known, that the principal cause of crimes committed, and that
daily are committed in an infinite number within this most Faithful City of
Naples … as in all this present Realm, was, and is the certainty, that delinquents
held and still hold, of obtaining remissions from the offended parties, and
with these it is made much easier to obtain compositions, graces, accords, and
reduction of punishments.51
The status given to the ‘offended party’ in Neapolitan law, endowed with the
capacity to forgive, was a resource that could be tapped by the powerful or violent.
To viceroys and some jurists, this was a factor that encouraged people to commit
crimes and that explained the notoriously high rates of violence in early modern
Naples. The legal environment of the Kingdom created the perfect conditions
that enabled people to commit heinous crimes and then extort forgiveness.
The ability to compose crimes was delegated to all barons who held criminal
jurisdiction. According to the jurist Giovanni Battista Baiardi, all barons had
this privilege of ‘giving grace, or composition’ of the crimes of their vassals before
a sentence was issued but only when a remission of the party had been gained.52
In a European and Italian context the Neapolitan arrangements endowed the
feudatories with very extensive powers.53 Even in Sicily, mostly comparable in
feudal arrangements, this power was only offered to the highest baronage that
possessed extensive jurisdictional privileges.54 In Naples, however, all barons
possessed this mero e misto imperio as well as the ‘four arbitrary letters’, which
had been dispensed to them by Robert of Anjou. In a notarial document of the
Mastrogiudice family these powers are defined as
51
Giustiniani, Nuova collezione della prammatiche, vol. 2, p. 271: ‘Per esperienza
s’è veduto, che la principal causa de’delitti comessi, e che giornalmente si commettono in
infinito numero, tanto dentro questa Fedelissima Città di Napoli, suoi Borghi, e Casali, come
in tutto il presente Regno, è stata ed è la certezza, che hanno tenuta, e tengono i delinquenti
d’ottenere le remissioni delle parti offese, e con quelle poi si rende loro più facile ottenere
composizioni, grazie, accordi, o commutazioni delle pene.’
52
Giovanni Battista Baiardi, Praticam criminalem (Frankfurt, 1622), p. 214: ‘omnes
fere Barones habent privilegia gratiandi, sive componendi delicta vasallorum ante sententiam,
quando adest partis remissio’.
53
On the comparatively extensive powers of feudal lords in the Kingdom of Naples
see Tommaso Astarita, The Continuity of Feudal Power: The Caracciolo di Brienza in Spanish
Naples (Cambridge, 1992), pp. 40–41, especially fn. 10.
54
On Sicilian barons remitting and composing crime see Rossella Cancila, ‘“Per la retta
amministratione della giustitia”: la giustizia dei baroni nella Sicilia moderna’, Mediterranea
Ricerche storiche, 16 (2009): pp. 315–52 (p. 332). See also Giovanni Muto, ‘Pouvoirs et
territoires dans l’Italie espagnole’, Revue d’histoire moderne et contemporaine, 45 (1998):
pp. 42–65 (pp. 57–8).
in his state and with the Bench of Justice and with jurisdiction and cognition of
first and second causes civil, criminal and mero et misto impero, delegated powers.
The four arbitrary letters and with the power to compose crimes and commute
corporal punishments into monetary ones and the powers to remit in total or in
part, given the satisfaction of the offended party.55
This list underlines how significant feudal lords’ powers to do justice were, and
the striking prominence of settlement over punishment. There was some debate
over precisely from what privilege or precedent the baronial ability to compose
crimes was derived. A major strand of juridical thought saw it deriving from the
four arbitrary letters rather than as part of their jurisdiction as lord of the fief.56
Others stressed the contingency of baronial rights upon fidelity and service to
the crown.57 Earlier kings themselves had believed in their power to remove
delegated powers.58 Barons were supposed to uphold the correct procedures of
the Kingdom in their administration of justice as royal officials.59 Compositions
could be considerable portions of judicial revenue for the feudal nobility.60
55
Quoted in Sonia Fiorilli, ‘Poteri, economia e stili di vita di una famiglia feudale: il caso
di Sinforosa Mastrogiudice marchesa di Pietracatella (1675–1743)’ (unpublished doctoral
thesis, Università degli Studi del Molise, 2010), pp. 46–7: ‘ragioni di presentare in quelle
e coll’intiero suo stato e signianter col Banco della Giustizia e con ognimoda Giurisdizione
e cognitione delle prime e seconde cause civile, criminale, e miste, mero et misto impero,
potestà delegati. Quattro lettere arbitrarie e con la podestà di compro delitti e di comutar di
corporali in pecuniarie e quelle rimettere in tutto o in parte, soddisfatta per la parte lesa.’
56
This debate led to the distinction between the nature of baronial authority: between
that given in feudum (their rights to jurisdictional powers intrinsic to them as owners of
the feudal land) and in officium (that they exercised such rights on behalf of the sovereign,
exercising a role). The second was a far less extensive right and one much more subjected to
oversight and limitation. Pietro Giannone’s discussion of the four arbitrary letters shows the
effects of such debates, noting that King Robert intended to give powers only to barons in
their role as his ‘Ufficiali’. Pietro Giannone, Istoria Civile del Regno di Napoli, 4 vols (Haya,
1753), vol. 3, p. 186.
57
Giovanni Maria Novario, Tractatus de vassallorum gravaminibus (Geneva, 1686),
p. 241.
58
King Ferrante of Aragon wrote in 1492 that jurisdictions ‘derive from us like streams
and water that run swiftly and, nevertheless, always go back to the sea whence they originated’.
For this quotation and related discussion see Francesco Senatore, ‘The Kingdom of Naples’,
in Andrea Gamberini and Isabella Lazzarini (eds), The Italian Renaissance State (Cambridge,
2012), p. 38.
59
For barons as royal officials see Aurelio Cernigliaro, Sovranità e feudo nel Regno di
Napoli, 1505–1557, 2 vols (Naples, 1983), vol. 2, p. 482.
60
In the state of Piedimonte, a fief of the Gaetani d’Aragona, 205 ducats were raised
from compositions for criminal crimes out of a total revenue of 426.73 ducats during the
period September–November 1737. See Luca Covino, ‘Le carceri baronali del Regno di
This faculty was brought under increased scrutiny in the mid-sixteenth

century. In the earlier sixteenth century some barons had the ability to remit
crimes even after the end of the proceedings and the publication of a sentence.
The 22nd version of the pragmatic de Baronibus restricted the composition or
diminution of penalties to the period before a final sentence was announced.
Barons were also banned from commuting the penalties of the exiled and those
who had been ordered to stay in their patria, their hometown, even if they had
obtained remissions. 61
In practice, misuse of these extensive powers remained common. It is
impossible to track the rates of such abuse as we lack records from nearly all
baronial courts and because such manipulations were concealed. Nevertheless,
a number of illustrative cases can be placed alongside the many general critiques
of feudal government that alleged misuse of jurisdictional powers. These often
gave special emphasis on the field of composition. Vassals did have recourse
to oversight and some instances of abuse of authority were tried in the Regie
Audienze, these appeals often revealed long-standing abuses and, of course, many
more were never taken to court.62 Don Giuseppe Castrocucco, the Marchese
of Ripa, was accused by his vassals of various misdemeanours.63 He had forced
a marriage to take place between a niece of one of his vassals and one of his
supporters, his feudal administrators were his personal coterie, and he extorted
illicit taxation from the local pig trade. He also imprisoned at will and then
charged what he wanted to transact the penalty, without arranging remissions.
As one of the complainants testified ‘if you want to leave his prisons you have to
compose with him at his judgment, without the vote of the consultore’.64 Antonio
Piano was charged 80 ducats, and Giovanni Angelo di Monaco 40; these were
large sums for rural vassals. 65
The problems of baronial abuse of systems of composition were identified
as one of the recurring problems that vassals faced. The jurist Giovanni Maria
Novario discusses this at length in his Tractatus de vassallorum gravaminibus.
He dealt with the problems caused when ‘barons perform graces, without
the parties being reconciled’.66 His treatment of this subject noted that it was
Napoli nel Settecento’, in Livio Antonielli (ed.), Carceri, carcerieri, carcerati: dall’antico
regime all’Ottocento (Soveria Mannell, 2006), p. 188.
61
Ibid., p. 200.
62
On widespread feudal abuses see Rosario Villari, The Revolt of Naples (Cambridge,
1993), esp. pp. 135–43.
63
ASL, Regia Udienza, Processi Penali, busta 3, fasc. 45.
64
Ibid., fols 561v–562r: ‘se vuoi uscire da carceri con componersi in pena a suo arbitrio
senza voto di consultore’.
65
Ibid.
66
Novario, Tractatus de vassallorum gravaminibus, p. 172: ‘Barones faciunt gratias,
partibus non concordatis’.
absolutely undeniable that, from their privileges, barons had the ability to give
grace for the crimes of their vassals but that this required a concord made with
the offended parties to be valid. In legal formulations and the commentary of
jurists, the agreement of the victim or their kin was indispensable. In practice,
as d’Arcos wrote, ‘many have sought to avail themselves of outrageous methods,
and they have forced the poor querelanti and the offended parties to make said
remissions’ under threat to their life or goods.67 The notary Donato Antonio
Cortellisi argued that in Novi in the 1610s the abuse of the system caused
crimes: ‘as the offenders reach accords over huge crimes with tiny sums of money
this has given rise to new crimes and offences’.68 In Montepeloso the citizens
complained that their duke ‘gets involved in making and in obtaining remissions
of the parties, and at times he forces them to be given with violence’.69
In the early eighteenth century these abuses persisted and criticism became
more direct. Paolo Mattia Doria discussed abuses of baronial jurisdiction in his
Relazione dello stato politico, economico e civile del Regno di Napoli nel tempo ch’è
stato governato da i Spagnuoli (1707).70 The barons, he noted, had the faculty
to ‘give grace, and to transact penalties’ into monetary penalties.71 He began by
describing the use of these options by feudatories as their attempt to avoid being
drawn into the long, twisted paths of justice in the Kingdom of Naples. After
an initial baronial judgment, the defendant had the right to an appeal within
the feudal court, then, after this, to the Audienza of their province and then
from the Audienza to the Vicaria. After the Vicaria, they could appeal to the
Sacro Consiglio, the only tribunal whose sentences were absolutely final.72 In
Doria’s account, these potentially long judicial roads meant that the finalities
of fiscal penalty or mercy were favoured by the feudal aristocracy. But he also
identified the obviously exploitative nature of these powers. Barons, with their
ability to give graces, could send a man to kill another ‘under the appearance of a
particular enmity’ and then give a grace to the killer removing all danger that the
67
‘De Exulibus XXIX’, in Giustiniani, Nuova collezione delle prammatiche, vol. 4, p. 274.
Pietro Ebner, Storia di un feudo del Mezzogiorno: La Baronia di Novi (Rome, 2004),
68
p. 176: ‘mentre con essersi accordati li delinquenti di eccessi enormi con pochissima somma
di denaro hanno dato causa di nuovi errori e delitti’.
69
Michele Janora, Memorie storiche, critiche e diplomatiche della Città di Montepeloso
(oggi Irsina) (Matera, 1901): p. 260: ‘Item decta Università s’aggrava, qualmente decto
Illustre Duca per componere li delitti, et fare proventi, s’interpone, e s’intromette in far fare
ed ottenere le remissioni delle parti, ed alle volte per forza di violenza costrenge ad farle
ottenere, si poete quod abstineat, quoad vigesimum, quia negatur factum.’
70
Paolo Mattia Doria, Relazione dello stato politico, economico e civile del Regno di
Napoli nel tempo ch’è stato governato da i Spagnuoli (Naples, 1707).
71
Ibid., pp. 118–19: ‘far la grazia, e di transigere le pene’.
72
Ibid.
way the homicide had been committed could ever be ‘juridically proven’.73 At the
same time they let others get away with the most disruptive and offensive crimes.
The delegated ability to compose crimes was one of the most critiqued aspects
of feudal governance in the eighteenth century. As this power enabled barons to
cover all their misdeeds, it underpinned a whole variety of baronial abuses.
Blood-Money or Forgiveness?
The lawyer Ginesio Grimaldi’s continuation of his father’s monumental legal

history of Naples, the Istoria delle leggi e magistrati del Regno di Napoli, considered
the various issues that arose from the practice of remission.74 His synthesis of a
debate reveals some of the thinking about the nature of the victim, the offender
and their moral relationship. Every crime created two actions on the behalf of
the victim. The first was criminal, one born from the ‘vendetta del sangue’ and
that aimed at satisfying the injury that had been given. The other was a civil
action from damage to goods. This split had meaning, according to Grimaldi,
for how many jurists and moralists understood the ‘precept of the Gospel’
that we should ‘remit the received offence’.75 Here it is important to note how
intertwined religious and legal thought was regarding offence and forgiveness.
Despite differences of opinion, jurists and theologians were discussing the
same terms and moral scenarios. Many, according to Grimaldi, interpreted
the imperative to forgive as encompassing only the ‘vendetta del sangue’.76 Even
the devout Christian had the right to satisfaction for harms to their goods, their
interesse, and they could pursue this satisfaction while not contravening the
imperative to forgive.
But there was considerable debate among theologians and jurists on the
difference between the remission of hatred and rancour and the remission of
the vendetta del sangue. Many held that the Christian is impelled to remit only
hatred and rancour but that they could seek the ‘satisfaction of justice’, which
should not leave delinquents unpunished. Grimaldi writes:
if this maxim is correct, we can say, that when one lodges a querela, or seeks the
punishment of the delinquent he does not break the law of the Gospel, because
73
Ibid.: ‘puole il Barone far’uccidere uno sotto l’apparenza di particolare inimicizia con
quello, e poi far la grazia all’uccisore senza pericolo che un sí fatto omicidio si possa mai
giuridicamente provare’.
74
Ginesio Grimaldi, Istoria delle leggi e magistrate del Regno di Napoli, continuata da
Ginesio Grimaldi (Naples, 1771), pp. 234–5.
75
Ibid.
76
Ibid.
internally hatred does not rise against the offender, he is only seeking for the other
to be punished as an example for others.
Grimaldi, however, sounds a note of uncertainty by writing that if one can lodge
a querela ‘with an indifferent spirit, and without a spirit of vendetta, it’s not
within my purview to consider’.77
From Grimaldi’s comments we can draw out some of the terms with which
homicides were discussed. His account hinges upon the terms of interest,
vendetta, sin and remission. Remissions were informed by Christian models but
it is not enough to stop at identifying this vague framing effect of Catholicism.
Instead these moral ideas were not separate; the legal ‘remission’ was not just
a hollow echo of the religious remission. They were seen to be very similar
processes. Indeed, God’s injunction to remit the sins of others meant a great deal
in a system where that was precisely what one did in the aftermath of a crime.
In 1725, during the Austrian viceroyalty, the Collateral Council expressed
strong opposition to the manner in which homicides were being composed.
In a wide-ranging discussion of how to diminish the numbers of homicides
that plagued the Kingdom the proposal to refuse transaction of penalties to
murderers was the key point. A reflection on the divergence between written
law and practice was noted, surveying the Kingdom’s laws they noted that
Emperor Ferdinand had banned it and this was renewed in 1627. Despite these
various condemnations the Council noted that it had continued due to fiscal
motivations and the abuses of practice. They noted the aristocratic pressure to
retain the practice of composition under Charles V. In practice, the exchange of
1,000 ducats for pardon of crimes committed with firearms was common and
justified by pragmatics, despite clashing with other prohibitions.78
The discussion featured displays of moral outrage towards the practice of
composition. The President of the Collaterale said that it was a scandal:
to value in such occasions the life of a man for 20 or 30 ducats, less than that of
a mule; and how less the scandal it would be to give grace to murderers, than to
transact their penalties.79
This stance saw full forgiveness, the exercise of grace, as less offensive to morality
than the payment of composition. The act of equating a dead person’s life to
a monetary sum introduced a logic of exchange that debased those involved,
Ibid., p. 235: ‘Ma se possa promuoversi questa querela con animo indifferente, e
77
senza spirito di vendetta, non tocca a me di esaminarlo.’

78
ASN, Consiglio Collaterale, Notamenti, n.s., busta 3, fol. 343r.
79
Ibid., fol. 344r: ‘valutandosi nelle volte la vita di un uomo per venti o trenta ducati,
meno di quella di un vil giumento; e che minore scandalo, e male assai minore sarebbe il far
grazia agli omicidj, che il transigerli’.
especially the life of the dead man paid for cheaply. By contrast, the exercise of
grace and pardon without the logic of commerce was held to be untainted by the
degradation of putting a price on a man’s life.80
The discussion also underlines the extent to which the historical accumulation
of rights, privileges and laws published by centuries-old regimes kept their
relevance as a source of regulation and discussion about the possibilities of
reform. The motives and aims of monarchs as far back as Emperor Frederick II
were discussed in the early eighteenth century with very real policy implications.
A set of legal institutions gave shape to the aftermath of crimes. In the
moralizing preambles to many of these laws, the arrangements and manoeuvres
that were to take place in the wake of a crime were supposed to be paragons of
reconciliation. But as these were never effectively policed they opened spaces for
the abuse of process and procedure. It would, however, be wrong to conclude
from identifying harsh seventeenth-century critics of these abuses or the even
more fundamental attacks launched by eighteenth-century Enlightenment
critics, that the entire institution was seen to lack moral foundations. The
recurring dilemma was legislation that gave a privileged place to offended parties
in the pardoning of crimes in a country where courts were unwilling or unable to
protect those so empowered, therefore leaving them exposed by the abilities the
law endowed them with.
A number of difficult dilemmas for good governance emerged. How
much moral weight was to be placed on the remissions of the parties? They
were viewed as both morally right – the offended party had some power over
whether the offender would be allowed to compose his crimes – but also as a
cause of some of the worst problems in the Kingdom. Yet the interests of the
barons of the Kingdom were bound up in the privileges they held and attempts
at total conversion of the judicial system were out of reach for a regime that
was increasingly concerned with attaining peaceful equilibrium.81 From the
1556 anti-Inquisition riots, to the uprising of 1585 and finally the 1647–1648
rebellion, the spectre of revolt stifled reform. Root and branch change was
impossible and even viceroys who believed that such arrangements created
crime were more or less powerless to attempt profound alteration to criminal
justice. Nor should it be forgotten that settlements provided financial support
for the regime.
The situations created by the institution of the remissione and subsequent
compositions occurred where local hierarchies and personalities influenced
Ibid.
80
For the importance of equilibrium and balance as a way to challenge traditional

81
accounts of the ‘failure’ of Ancien Régime Naples, see John A. Marino, Pastoral Economics in
the Kingdom of Naples (Baltimore, 1988), esp. p. 262.
what, precisely, the relations between offender and offended parties would be.
This system was an integral part of the history of violence and its control.
The discussion of the case of Matteo d’Afflitto by the Collateral Council
underlines the moral dilemmas of indulgence. Matteo was under investigation
for homicide by the Audienza of Salerno. He had killed Felice Trabucco in the
town of Ravello on the Amalfi coast. D’Afflitto claimed innocence but, since
he refused to face trial due to the ‘evident danger to his life’, this could not be
established. Instead, he wished to gain indulgence by presenting the outlaw
Giovan Antonio de’Somma, otherwise known as ‘Thirty-faces’, who was wanted
for various homicides. In the volume it was noted that the Avvocato fiscale of the
Vicaria expressed his displeasure with accepting the sort of services that Matteo
had done. It was repugnant both to ‘reason’ and ‘convenience’, two imperatives
of the administration of justice that were difficult to balance, to give grace for
this because he was accused of ‘such a brutal’ homicide and did not possess the
remission of the parties.82
The Avvocato fiscale in this discussion noted that the presentation of these
sorts of outlaws to the court could be gained through bribes. A small sum of
ten carlini could be given to the subalterns of the royal court and then the dead
outlaw could be registered as having been one seeking indulgence like Matteo
d’Afflitto to present as if he had captured him.83 The fiscale stressed that it
would be a ‘most wicked innovation’ to give him grace without remission of the
parties. The Collateral Council, he claimed, had always excluded such cases of
grace without remission; this was an erroneous claim but it does underline how
this assumption was the norm. It would be against the law of the Kingdom and
dangerous to the public. The main objection was, in the absence of the remission
of the parties, that it would not ‘remove from the offended party the right that
they possess to vendetta’, something that would be harmful to the public utility
and the quiet of the realm.84 Despite this vigorous petitioning, d’Afflitto was
indulged regardless.85
Conclusion
By drawing together the dispersed arenas in which offences were remitted and
penalties transacted this chapter has shown the ways in which these actions
constituted overlapping and related systems both in practice and regulation
ASN, Consiglio Collaterale, Diversorum, vol. 1, fols 77r–78r: ‘così brutto’.

82
Ibid.
83
84
Ibid., fol. 77v: ‘ragione che li spetta de la vendetta’; this usage of vendetta was the
broader one of satisfaction for offence given rather than personal, violent revenge.
85
Ibid., fol. 77v.
but also through the attitudes of viceroys, royal councillors, jurists, theologians
and other commentators. To understand peaces and peacemaking, other aspects
of criminal justice need to be considered rather than solely the moment of
pacification. This chapter has demonstrated this for remission, composition
and satisfaction. Behind all of these arrangements was pervasive violence, much
of which occurred in situations of enmity or for vengeance. Most scholarship
exploring judicial institutions of peacemaking has focused on its use as a tool
of control. As Valerio Antichi summarizes: ‘the judicial institution of the peace,
present with varying normative and disciplinary potential in numerous areas
of the peninsula, constituted probably an instrument to control the weight
of social conflict at the disposition of both political authorities and subjects’.86
While these questions are relevant, this chapter has shown the complexities of
the fiscal, pragmatic and moral factors that shaped how the Neapolitan state
administered such practices and in consequence affected the lives of the people
involved in the system. It is not sufficient to talk only about how instruments of
peace could be tools of control. Instead, this chapter has sought to understand
what factors shaped how a variety of officials attempted to use or modify these
tools but also the weight of the inheritance of prior practice which limited these
scopes for action. It is also a process that has to be recognized as fundamentally
material; regional courts and the viceroy’s chancellery administered peace
through paper.
In the Kingdom of Naples these processes were increasingly rather than
decreasingly shaped by the challenge of widespread banditry across the
seventeenth century. While in other states the challenge from banditry receded
after its sixteenth-century high point, in Naples it increased in power until the
1690s. All aspects of legal relations of hatred and reconciliation in Naples were
actually or potentially part of this world of banditry. Similarly, the importance
of baronial power to the shape of these issues in Naples has been shown. While
royal justice was more extensive than has often been alleged in early modern
Naples, it still came against problems of enforcing adherence on an intransigent
feudal aristocracy.
Above we have read the story of the murder of Diomede Fiorenza by Carlo
Vasullo and Sebastiano Calabrese. Francesco, Diomede’s father, had refused to
bow to the pressure of Carlo and Sebastiano to sign a remission even when his own
friends approached him as he was about to enter Church, and they encouraged
him to sign a remission so as to avoid ‘greater harm’ in the future. The Capuchin
friars of Morcone were apparently particularly emphatic in urging remission,
86
Antichi, ‘Giustizia consuetudinaria e giustizia d’apparato’, p. 272: ‘[l]’istituto
giuridico della pace, presente con vario potenziale normativo e disciplinatorio in numerose
aree della peninsola, costituiva probabilmente uno strumento di controllo del tasso di
conflittualità sociale a disposizione sia delle autorità costituite che dei sudditi’.
pushing him to make peace by giving in to the demands of Carlo and Sebastiano.
Vasullo and Calabrese had been outlawed and they had fled from the hilltop
town. Francesco testified that he had refused to sign the remission but the exact
terms he uses are instructive. He said that he had told Vasullo and Calabrese that:
‘I will not sell the blood of my son’.87 A murder committed apparently as part of
a formal hatred; the use by Francesco of a central legal system; the pressure for
forgiveness and the eventual outlawing of the two accused; and, finally, a refusal
to bargain over a dead son. Francesco Fiorenza cast himself as the steadfast
father who refused to deal in blood – these are examples of the juridical norms
and practices explored above, but in this instance in direct contact with one
man’s emotional world sited in the politicking of a small town. Such perspectives
from towns and villages on the nature of settlement, the selling of blood and
the consequences of violence must be seen as the effects of a complicated legal
system that was a contested field of authority and not under the simple control
of an undivided state.
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Afterword
Stuart Carroll
Barely a history of early modern crime, punishment or violence begins without

some grisly opening scene of torture or execution. This familiar device, shocking
us into the realization that the past is a foreign country, has become a cliché.1 The
most influential use of the trope is Michel Foucault’s Surveiller et punir, in which
the would-be regicide, Damiens, is dismembered alive in Paris after having pieces
of his flesh torn out with red-hot pincers.2 But the power of the image has long
dissipated since publication in 1975. The very exceptionality of Damiens’ death
means that as a literary device it does not resonate beyond the symbolic; it does
not define a system and has little to tell us about Foucault’s themes of power,
domination and subordination, and even less about social relations under the
Ancien Régime. The banal, however, still retains its power to shock. Thirty years
after Damiens’ execution on the eve of the French Revolution, Pierre Albert, a
labourer from the village of Ugny, deep in the eastern French countryside on
the borders between the Barrois and Lorraine, was murdered in a brawl by Jean-
Baptiste Gérard.3 The procedure should have been clear-cut, since in regard
to crimes of blood successive penal codes issued by the French monarchy left
little autonomy for a judge: the indices of guilt were either insufficient for a
sentence, or they indicated a capital sentence, since French law recognized as
yet no category akin to manslaughter. Like most killers, Gérard knew his likely
fate and fled. The rigours of the Ancien Régime justice were, however, tempered
by the ubiquity of pardons, hundreds of thousands of which had been issued
by the French monarchy since the Middle Ages, contributing significantly to
the sacrality and majesty of monarchy and not a little to its coffers. But this
did not come to pass. Instead, in July 1784 Gérard’s father signed a contract
with Pierre Albert’s brothers in which he agreed to pay them 192 livres if they
1
For a fresh approach which avoids these pitfalls: Joel Harrington, The Fateful
Executioner: Life and Death, Honor and Shame in the Turbulent Sixteenth Century (New
York, 2013).
2
Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan
(London, 1979; first French edition Paris, 1975).
3
Hervé Piant, Une justice ordinaire: justice civile et criminelle dans la prévôté royale de
Vaucouleurs sous l’Ancien Régime (Rennes, 2006), p. 210. This is an important and unjustly
neglected study based on nearly 10,000 lawsuits.
renounced their suit against his son. The persistence of Wergeld in the Age
of the Enlightenment, when Albert’s life was valued at about three times his
annual wage, still has the power to shock because it reminds us not only that
human life was cheap, but that people were not equal in the eyes of the law.
The case illustrates two significant features of the early modern European legal
system. First, the ubiquity of out-of-court settlements and arbitration relative
to judgments and punishments; in the court of the prévôté of Vaucouleurs this
meant that 60 per cent of lawsuits in the eighteenth century were abandoned
before sentencing. Even when sentences were pronounced they were often
without effect: only 2 of the 11 capital sentences issued were ever carried out,
which bears out Tocqueville’s maxim, ‘The whole of the Ancien Régime is there:
rigid in rule, mild in practice, such is its character’.4 The second lesson we learn
from the case is that the primary purpose of the Ancien Régime legal system
was not to judge or to punish, but rather to ensure the reproduction of existing
social and political relations. Jean-Baptiste Gérard was a lawyer. His father was
none other than the judge of the prévôté court at Vaucouleurs. But even more
unsettling is the stipulation that the father included in the accord. He consented
to indemnify the plaintiffs for damages, ‘even though he knew by common
knowledge that it was the said Pierre Albert who had been the aggressor in the
brawl … and it was therefore in some way his own fault that he had received a
mortal wound’.5 The notarized document turned the accusers into the accused.
Since the publication of Surveiller et punir in 1975, the re-conceptualization
of the early modern legal system – by Italian historians through the concept of
giustizia negoziata, the French infra-justice and the Germans justiznutzung, or
the consumption of justice as a form of social control – has constituted nothing
less than a ‘Copernician Revolution’ in understanding.6 The present volume
is inspired by the most important British contribution to that revolution, the
1983 collection of essays edited by John Bossy, Disputes and Settlements.7 It is
both a welcome check on the current state of play and a fitting tribute to the
memory of John, who died during the completion of this volume, and whose
ideas did so much to inspire younger generations of historians. It is especially
timely, as John Jordan informs us, given the fact that Roberts’s emphasis on the
disputing process, which concentrates on how people follow, use and sidestep
the rules, has recently come under attack from those who wish to return to a
rule-centred approach that downgrades practice in favour of a method that
Eric Wenzel, ‘La paix par la justice: les modes alternatifs de règlement des conflits’, in
4
Paulo Broggio and Maria Pia Paoli (eds), Stringere la pace: teorie e pratiche della conciliazione
nell’Europa moderna (secoli XV–XVIII) (Rome, 2011), p. 509.
5
Piant, Une justice ordinaire, p. 210.
6
Ibid., p. 208, quoting Alfred Soman, one of the early revolutionaries.
7
(Cambridge, 1983).
Afterword 283
stresses the systematic nature of normative legal rules grounded in set of over-
arching organizing principles.
This volume suggests that the counter-revolution proposed by the proponents
of ‘legalism’ is yet some way off. Bossy argued in Disputes and Settlements that
‘three extremely powerful images have governed the resolution of disputes in
the West since the disintegration of Roman authority: the image of the feud; the
image of charity; and the image of the law (or the state)’.8 The present volume
offers plenty of evidence to support the continuing validity of this claim. As
Marco Cavarzere points out, Roberts’s rejection of the ‘rule-centred’ tradition in
favour of the process approach to dispute analysis was most eagerly welcomed in
Italy, where ‘Italian micro-historians thus celebrated the early modern victory of
feud and litigation over an abstract and anachronistic concept of law’. Elsewhere,
the battle still rages, as there is resistance to using a term that was anachronistic
by the early modern period. The rise of Roman law in the Middle Ages meant
that the Fehde, faida or faide was associated with obsolete customary laws. Its
invocation has confused French historians because the word faide disappeared
from use in the twelfth century. In the Holy Roman Empire, the Fehde was
formally outlawed in 1495. Even in Italy the term faida was an anachronism by
the early modern period and rarely used by contemporaries in their disputes;
it was increasingly associated with a distant Lombard past. But the apparent
contradiction is resolved if we recognize that Bossy was describing not a legal
norm governed by formal rules, but rather a social practice rooted in feelings.
As a term, feud should pose no problem to the early modernist if it is employed
as a synonym for a public or prolonged state of enmity, the opposite of peace.
Although the rules of the game had undoubtedly changed since the Middle
Ages, enmity did not disappear and continued to profoundly shape both social
relations and everyday politics during the early modern period.
Italians quickly grasped this because their records were replete with the
language of vendetta and its rich lexicon of hatred. As Christian Kühner shows,
French noblemen dedicated a great deal of time patching up their quarrels, as
their memoirs reveal. They had access to a lexicon of hatred which was just as
rich as the Italians. Bossy’s hunch has been borne out by the research in the
intervening 30 years. As Erdélyi argues in her evocation of rural life in sixteenth-
century Hungary, ‘Vengeance is in fact everywhere in the judicial archives even
if its presence is rarely explict’.
Bossy was right about charity too. Early modern Europeans wrote a lot about
peace: Shakespeare mentions the word 547 times and war 261 times.9 But work
in this field is harder: ‘Historians are much better equipped to study conflict
8
Ibid., p. 287.
9
P. Withington, ‘The Semantics of “Peace” in Early Modern England’, Transactions of
the Royal Historical Society, 23 (2013): pp. 127–53.
than peace because, put simply, conflict produces sources whereas peace does
not.’ Nikolas Funke then goes on to make light of this to explore what has been
called ‘everyday ecumenism’; that is, the ability of people of different faiths to
get on and get along. And Bossy was also right about the state (and the law).
Stephen Cummins shows that reconciliation was a routine and mundane part
of the administration of seventeenth-century Naples and that at every stage of
the disputing process there were pressures, social and financial, for the parties
to come to an accommodation. He shows how the state profited from the
civilization (another useful anachronism) of the criminal process. The 60,000
ducats which accrued to the Neapolitan administration for brokering deals is
likely to have been the tip of the iceberg. The bribes and sweeteners that oiled
the wheels of the early modern administrative machine do not appear in the
balance sheets. In France, the process of registering a pardon far exceeded the
cost of obtaining the letters in the first place, especially if they were contested, as
lawyers and judges expected presents and gifts, as well as their fees. Patrons might
need to be called upon to exercise their influence, and they were not always a
disinterested party.10 The French monarchy had long seen the financial benefits
of civilizing justice, and the executions that Tom Hamilton analyses came at a
particular moment of crisis for the monarchy at the end of the sixteenth century.
The contrast with the following century is stark, as both torture and execution
rates declined dramatically, indicating the high value placed on reason and order
in the early modern judicial system before the Enlightenment. We still tend
to think of state building primarily in terms of the monopoly of force, which
for the early modern period means the emergence of standing armies and the
means to pay for them through regularized taxation and state borrowing. But
power is the essence of government not force, and power needs no justification
other than legitimacy. The legitimacy of the state in early modern Europe rested
to a great extent on its ability to dispense justice and uphold peace. Whereas
tax collectors and soldiers were universally reviled, people of all social ranks
welcomed the intervention of the agents of authority broadly defined, whether
they were magistrates, priests or notaries, who could settle their disputes.
The Papal States were one of the most successful examples of a state built on the
ability of its ruler to use arbitration and mediation among local factions in order
to strengthen central authority.11 Christian Schneider highlights the continuity
of papal policy and how it re-asserted its influence and prestige in the wake of the
Reformation by reasserting its traditional role as mediator of princely disputes,
being padre comune of all Catholic princes.
S. Carroll, ‘Achêter la grâce en France du XVe au XVIIe siècle’, in Benoît Garnot (ed.),
10
Justice et argent: les crimes et les peines pécuniaires du XIIIe au XXIe (Dijon, 2005).
11
Irene Fosi, La giustizia del papa: sudditi e tribunal nello Stato Pontificio in età moderna
(Rome, 2007).
Afterword 285
But what of the future prospects for research in this field? John Jordan
suggests five: a greater attention to the cultures of violence and the debate over
the decline of violence; a global perspective that would reveal the convergence or
divergence between European and non-European legal systems; an emphasis on
the importance of legal pluralism; a shift in the focus of analysis from the urban
to the rural; and finally a renewed attention to ‘legalism’. The contributions to
this volume show that the foundations for future research are already well laid in
some areas, while in others the digging is more exploratory. Violence, as distinct
from war, is a relatively new topic for analysis, but the number of publications
in the field has mushroomed in recent years and the trend shows no sign of
abating. The multi-volume Cambridge World History of Violence, now under way,
promises not only a comprehensive synthesis of the field, but to bring a truly
global perspective to the problem. Tara Alberts shows the potential for such an
approach. Dispute settlement on the colonial frontier was much more difficult
than in the metropole. The Jesuits liked to promote themselves as peacemakers
par excellence. Alberts reminds us of the self-serving nature of much of their
rhetoric and why the order was so widely reviled even by other Catholics.12
The plethora of courts and competing jurisdictions that characterized the
early modern judicial system provided litigants with plenty of choice. The upside
of this was that the law was relatively easily accessed: the sixteenth century saw a
boom in litigation and what German historians refer to as Verrechtlichung, or the
juridification of social relations. On the whole, the abundance of courts proved
to be no major hindrance to civil litigants, quite the opposite. The downside was
that overlapping jurisdictions made the prosecution of crime much less certain
and more difficult. The confusion was particularly vexing in Germany and Italy.
Laura Kounine reminds us, through the lens of witchcraft prosecutions, of
the extreme local variation in Germany. The fragmented nature of the Empire
tended to encourage mediation and out-of-court settlements, and there was a
proverb for it: ‘Kannstu fliehen, so fliehe ausz den stauden ist gut theidigen’ (If
you can run, then run, because mediation is out of town). This was made worse
in Italy by the practice of outlawing those who failed to appear in court, feeding
the banditry problem, which contributed to the feud and complicated the
culture of conflict resolution. At the other end of the scale was England, where
jurisdictions may have overlapped, but the polity was a unified state.
Late medieval towns across Europe were well regulated and developed a
sophisticated civil society, a term which describes the space between the state
and the family. Perhaps what distinguished the early modern period was the
spread of litigation and the juridification of disputes in the countryside. Evidence
12
D. Gentilcore, ‘“Adapt Yourself to the People’s Capabilities: Missionary Strategies,
Method and Impact in the Kingdom of Naples, 1600–1800’, The Journal of Ecclesiastical
History, 45(2) (1994): pp. 269–96.
from court activity suggests a world dominated by a notability of minor officials,

petty landowners and rich tenant farmers. The top 20 per cent of rural society
dominated the legal activity of eighteenth-century Vaucouleurs, a small world
where everyone knew both each other and the six lawyers who served at the bar
of the prévôté. Some of these notables were vexatious litigants, who not only
bullied their less powerful neighbours but whose regular recourse to the courts
was a form of social capital, a tangible sign of their local ascendancy. Recent
research suggests that, far from being a société immobile, the rural world of early
modern Europe was more dynamic than it seemed to a previous generation
of historians.13 One feature of the rural notability from the sixteenth century
was its readiness to use and confidence in using the law to stand up the local
nobility: this undoubtedly contributed to the decline of violent rural uprisings
in the following two centuries. This is further evidence that property, the law
and litigation remains fundamental to our understanding of the emergence of
civil society.14
If, as the advocates of ‘legalism’ desire, we are about to return to elucidating
the rules and establishing the norms, let us hope that this does not come at the
expense of the history of real people. Bossy’s original vision was grounded in ‘the
idea of a social history which would be a history of actual people’.15 This volume
is a testimony to the continuing vitality of this approach.
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Sperber, Jonathan, Property and Civil Society in South-Western Germany,
Wenzel, Eric, ‘La paix par la justice: les modes alternatifs de règlement des
conflits’, in Paulo Broggio and Maria Pia Paoli (eds), Stringere la pace: teorie
Viella, 2011).
Withington, P., ‘The Semantics of “Peace” in Early Modern England’,
Transactions of the Royal Historical Society, 23 (2013), 127–53.
Index
accommodation 110, 284 Civilizing Process, the 1, 3, 9, 37, 208, 284

Alexander VI, Pope (Roderic Llançol i de Clement VIII, Pope (Ippolito
Borja) 83–6, 97 Aldobrandini) 86–93
Alexander VII, Pope (Fabio Chigi) 94–6 clergy
amende honorable (ritual apology before crimes by 207–9, 212–13, 216, 218
execution in early modern France) involvement in peacemaking 4, 153–4,
184, 186 215–16, 284
amity, see friendship clientage 57, 106, 122
anger 8, 207, 211–13, 215 Coligny-Saligny, Count Jean de 108–10
arbitration 51, 56, 65, 69, 77–82, 88, community
90–91, 95, 97, 266, 282, 284 conflict 9, 69, 127, 250–51
Arendt, Hannah 155, 168 relations 140, 214, 219, 235, 246
composition 28, 69, 256, 258–9, 261–4,
banditry 67, 212, 262–5, 274–6, 283–5 268–9, 272
barons 266–71, 273 confession, see justice
Black legend, the 154–5 confessional
body co-existence 3, 127–9, 140, 143
of the criminal 189, 196–7 conflict 131–5, 144
of the witch 240–241 constitutional history 55
Bossy, John 3, 5, 7, 10, 17–19, 51–4, 129, contracts 28, 33, 181, 218, 281
283–4, 286 countryside and rural life 39–40, 59–60,
Bourbon, Louis de (Prince of Condé) 122, 208, 212, 281, 286
107–10, 114, 120–23 court culture 106–7, 122–3
crime 32, 34, 68, 184, 204, 234, 256, 263,
Calvinist church, Calvinism 86, 96, 129, 281
141–3 assault 33, 62, 111, 139, 213, 217, 221,
Cancellieri faction 59–64 222, 260
Carolina (Constitutio Criminalis Carolina, homicide and murder 3, 10, 61, 63, 69,
law code, 1532) 233, 239–40, 248 132, 154, 183, 188, 209, 211, 213,
Carroll, Stuart 5, 10, 68, 122, 133 215, 218, 220, 260–62, 272, 274
Catholic church, Catholicism 6, 82, 96–7, infanticide 236
132, 134–6, 142–3, 186, 189, 272 insult 161, 207, 222
charity 10, 54–5, 283 theft 32, 183, 188
cities and urban life 35, 39, 66, 151, 154, see also witchcraft
164, 263, 285 criminal courts 2, 27, 30, 33, 52–3, 79,
civil law 34–6, 263, 285–6 179–80, 198, 208, 230, 237, 246,
civilization 1, 37, 105, 155, 204, 208, 284 251, 257, 263
Damiens, François 179, 196, 281 women on trial for witchcraft 238, 242,
Davis, Natalie Zemon 34, 122 244, 246
diaries, see ego-documents Ginzburg, Carlo 30
drunkenness 134, 162, 183, 211, 214, 223 global history 25, 38, 285
duelling 105–6, 109–11, 116–20, 205 Griffiths, John 22
ego-documents 206 hatred 127–8, 131, 133, 139, 211–13, 229,

diaries 129, 136, 140, 194 271–2, 275–6, 283
memoirs 109, 119, 136, 283 Holy Roman Empire 128, 131, 137, 143,
Elias, Norbert 1, 37, 203; see also Civilizing 230, 283
Process, the homicide, see crime
emotions 1, 9, 154, 204, 207–8, 211, 212, honour 31–2, 107, 109, 112, 123, 137, 144,
215, 218, 234, 239–41, 246, 276; 151, 155, 184, 205, 207, 215–17,
see also individual emotions e.g. 222–3, 231, 249, 259
anger, hatred Huizinga, Johan 1, 203–4
empire and imperialism 38–9, 152–3, 155, Hungary 206, 208–9, 214, 216, 223, 283
172
enmity and enmities 4, 62–3, 106, 111, indulgence 258, 274
152, 205, 207–8, 211, 213–15, 218, infrajustice 6, 67, 261, 282
221, 223, 237, 248, 251, 258, 265, Innocent X, Pope (Giovanni Battista
270, 275, 283 Pamphilj) 96–7
envy 229 international law 80
executioners 186–9, 247
extra-judicial settlement 67, 218; see also; Jesuits 151, 160, 163, 169–72, 186, 285
arbitration; Infrajustice; mediation judges 34, 67, 77, 79, 81–8, 94, 96–8, 136,
182, 205, 209, 221–2, 231, 233,
factions and factionalism 6, 55, 58, 60–64, 240, 249, 263, 266, 281–2, 284
66–8, 123, 153, 167–9, 255, 284 judgment 65, 79, 86, 90–92, 97, 182, 184,
feud 1–2, 7, 10, 53–6, 59, 69–70, 106, 186, 188, 193, 196, 203, 240,
122, 205, 214, 283, 285; see also 269–70, 282; see also justice
vendetta justice
firearms 171, 215, 265, 272 accusation 79, 90, 219, 229–32, 234,
Florence 57, 63, 65, 67, 87–8 237–40, 242, 245–6, 248–9 (of
forgiveness 10, 106, 186, 194, 209, 258, witchcraft), 256, 258, 260–62
261–4, 267, 271–2, 276 capital punishment 9, 33, 180, 221,
Foucault, Michel 179, 196, 281 231, 251, 281–2
Freiberg 32–3, 35 confession, judicial 182, 188, 195, 233,
French Wars of Religion 180, 190 240, 243
friendship 54, 106–7, 111–13, 121, 136, litigation 5, 51, 53, 55, 65, 205, 208,
138, 166, 212, 218, 231–2, 240, 283, 285–6
246, 251 prosecution 259, 261–2, 285; see also
testimony; witnesses
gender 4
in lay-ecclesiastical disputes 212; see also kinship 10, 65, 122, 212, 220, 236–7, 240,
sexual conduct 246, 251, 260, 262, 265, 270
Index 291
lawyers 53, 209, 271, 282, 284, 286; see also Panciatichi faction 59–64
notaries Papacy 8–9, 77–8, 82–3, 93–7; see also
lay-ecclesiastical disputes 8–9, 133, 135, individual popes
153, 163, 203, 208–10, 212, 216, papal pardons, papal remissions, 206–7,
220–22 209, 211, 216
legal anthropology 1, 5, 7, 17–22, 24, 27, Papal Penitentiary 206, 215, 221
29–30, 35–7, 40, 55, 77–8, 204 pardons and pardoning 68, 180, 181, 183,
culture 26–7, 34–5, 37 189, 194–5, 206–7, 209, 211, 216,
legalism 25–6, 33, 38, 40, 283, 285–6 256, 258, 261, 272–3, 281, 284
pluralism 19, 21–2, 24–5, 29, 38–40, Paris 92, 111, 132, 179–81, 185–8,
285 190–93, 197, 281
semi-autonomous social fields 27–8, 37 peace
L’Estoile, Pierre de 181, 192–6 negotiations 77, 80, 88–90, 93–5, 97
Louis XIV, King 109–10, 121 pacts 4, 255, 257
Lutheran church, Lutheranism 96, 129, peacemaking 4–6, 8, 10, 55, 65–70,
132, 135–6, 138, 140–42, 210, 232 77–80, 83, 95, 97, 151, 155, 218,
220–21, 231, 237, 251, 255–8, 266,
Machiavelli, Niccolò 51, 68 275
Malacca 151–69, 171 rituals 5, 55, 67–8, 70, 116, 122
Mazarin, Cardinal 108, 120–21 treaties 94, 96, 256
mediation 2–3, 5, 8, 56, 66, 78, 80–81, Peace of Westphalia 94–7
88–90, 95, 107, 111, 113–14, 116, penance 161, 187, 220
122, 214–16, 250, 255, 284–5 Pistoia 7, 57–79
mediators 77–8, 80–83, 87–9, 91–7, Portuguese Empire 83–6, 151–6, 161,
106–16, 121–2, 172, 284 164–5, 167, 169
Medici, Alexander de’ (Pope Leo XI) 86–7 proof, legal (evidence) 79, 210, 233–6,
Medici, Cosimo I (Grandduke of Tuscany) 239–43, 249, 271
57–8, 61–4, 67–8 property 96, 213, 286
memoirs, see ego-documents Protestantism 82, 94, 128, 134–8, 144, 209;
microhistory 52–3, 55, 283 see also Lutheranism
military, see soldiers
municipal raccommodement (aristocratic mediation)
government 7, 58, 66, 163, 172, 259 110–15, 119, 122–3
statutes 33, 54, 58, 64–5, 67 Ravaillac, François 179, 195–6
reconciliation 3–4, 8, 83, 92, 106, 108,
Naples 10, 256–7, 259, 261–3, 265, 267, 110–14, 116–22, 161, 221, 232,
270–71, 275, 284 237, 250–51, 255–6, 261, 273, 275,
neighbourhood disputes, see community 284
nobility 8, 52, 105–6, 122–3, 155, 158, records, legal 5, 30–32, 35, 55, 66, 129–32,
259, 268, 286; see also barons 153, 181, 183, 197–8, 205–6, 209,
notaries 30, 35, 66, 221, 256, 262, 267, 270, 231, 235, 266, 269, 283; see also
282, 284 testimony
religion
oaths and oathtaking, 233, 240, 245–6 bishops 114, 153, 163–5, 167, 169–70,
outlaws, see banditry 220, 264–5
pastors 140–42, 217, 235, 247–9 Papal states 61, 91, 95, 97, 284
priests 4, 9, 129, 153–5, 157, 159, state
161–3, 172, 193, 206–22, 260, 284 formation 1–2, 6, 257
see also Catholicism; confessional institutions 22, 54, 198
denominations; Lutheranism law 23–5
religious toleration 6, 127, 130, 135, 143–4; monopoly of violence, see violence
see also confessional denominations statutes 23, 54, 58, 60n, 64–5, 67
remission of offences 67, 183, 206–7, 209,
256, 258–67, 269–76; see also papal testimony 27, 34, 153, 233, 239, 242; see
remissions also records, legal
reputation 8, 82, 90, 93, 119, 121, 205, 207, torture 182, 188, 190, 233, 249, 281, 284
215–16, 232, 235, 238n, 240n, transnational history, see global history
247n, 248–9, 259 Treaty of Tordesillas 85
Roberts, Simon 18–19, 23, 25, 27, 31, 52, Trémoille, Henri-Charles de (prince of
78–81, 85, 97, 282–3 Tarente) 115–19
trust 67, 81, 89–90
St Francis Xavier 151–4, 156–7, 159–64,
168 vendetta 105n, 259, 271–2, 274; see also
saints, see individual saints feud
Saluzzo 90–92 Vervins 86–7, 89–91, 95
self-restraint 1, 118, 207–8 violence 37, 276, 281, 285
sentencing as symptom of impotence 155
execution 9, 33, 179–98, 221–2, autotelic 139
230–232, 259, 281, 284 colonial 153, 155
fines 39, 67, 168, 220–21, 230–31, 250 communal 69
petitions 85, 157–8, 169, 205–9, 214, control or regulation of 51, 205, 274
216, 219–21, 250, 260, 274 decline of 3, 37
scribe, legal 181–3, 186–9, 197, 206 (curial Jesuit 172
proctor) legitimate 139, 219
sexual conduct 215, 217 locative 139
Smail, Daniel Lord 31, 34 noble 6, 109, 118
sociability 8, 143 premeditated 212
social religious 131–3, 144
control 2, 10, 22, 35–6 ritual 187
history 5, 10, 52, 57, 129, 286 state 1–2, 281
soldiers, see military vindicatory 196, 213
states and government 1–2, 4, 6–7, 9,
19–20, 22–5, 34, 39–40, 51–9, 65, William II, Prince of Orange 115–18
66–7, 69–70, 128, 134, 179–80, William III, Prince of Orange 80
196, 198, 204–5, 235, 255–9, witchcraft 9, 229–51, 285
275–6, 283–4 Württemberg 232–4, 243, 250

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Copyright © 2016 Stephen Cummins, Laura Kounine and the Contributors

British Library Cataloguing in Publication Data

The Library of Congress has cataloged the printed edition as follows:

ISBN 9781472411556 (hbk)

List of Figures and Tables vii

Introduction: Confronting Conflict in Early Modern Europe  1

Part I Rethinking Disputes and Settlements

1 Rethinking Disputes and Settlements: How Historians Can Use

2 At the Crossroads of Feud and Law: Settling Disputes in Early

Part II Mediation, Reconciliation, Coexistence

3 ‘Types’ of Peacemakers: Exploring the Authority and Self-

4 Mediation and Reconciliation among Seventeenth-Century

5 Containing Confessional Conflict in the Military: The Holy

6 Colonial Conflicts: Factional Disputes in Two Portuguese

Part III Law, Courts and Conflict

7 Contesting Public Executions in Paris Towards the End of the

8 Contested Coexistence: Lay–Clerical Disputes and their

9 The Witch on Trial: Narratives of Conflict and Community in

10 Forgiving Crimes in Early Modern Naples  255

1 Detail of Vassalieu dit Nicolay, Map of Paris, 1609 185

2 Detail of Figure représentant le supplice & exécution de l’arrest

1 Appeals to and death sentences confirmed by the Parlement of

Tara Alberts (PhD Cambridge) is Lecturer in Early Modern History at the

Stuart Carroll (PhD London) is Professor of Early Modern History at the

Marco Cavarzere (PhD Scuola Normale Superiore) is Alexander-von-Humboldt

Stephen Cummins (PhD Cambridge) is Post-Doctoral Fellow at the Centre for

Gabriella Erdélyi ‘(PhD Eötvös Loránd University) is Senior Research Fellow in

Tom Hamilton (DPhil Oxford) is Junior Research Fellow in History at Trinity

Christian Kühner (PhD Freiburg/EHESS) is Lecturer in Early Modern

Christian Schneider is a PhD fellow in History at the University of Durham.

This volume developed from a conference held at St John’s College, Cambridge,

Some of the most persistent and largest-scale accounts of change in European

people. Critiques of the civilizing process still have to confront evidence of

This volume opened up numerous avenues of research and has been an

connections between local disputes and transnational legal networks.24 This

Then we move to a section entitled ‘Mediation, Reconciliation, Coexistence’,

Antichi, Valerio, ‘Giustizia consuetudinaria e giustizia d’apparato nello Stato

Early Modern England (Cambridge, 2000).

——— The Civilizing Process: State Formation and Civilization (Oxford:

——— ‘Pratiche sociali di perdono nell’Italia della Controriforma’, in Francesca

Vallerani, Massimo, Medieval Public Justice (Washington, DC, 2012).

An anthropological approach to law inquires into the context of enforceable

surroundings, it also encompasses law-like activities and processes of establishing

From Bossy to Today: The Legal Anthropologist’s Perspective

ethnographic moment had been shaped by history and/or power relations.

in legal anthropological studies.11 No longer would legal anthropologists ‘isolate

instead of focusing on disputes and attempts at settlement of problems, new

Alternative Heuristic Frameworks

In Disputes and Settlements, Roberts mapped rule-centred and processual

For example in looking at a (contested) debt case, adherents of legalism would

anthropologists and historians working together is the Centre d’histoire et d’anthropologie

observable by the anthropologist. Society consists of a plethora of social fields

Where Are We Now?

Briefly stated, legal anthropology continues to investigate norms, rules and

From Bossy to Today: The Historian’s Perspective

Marseilles.83 Griet Vermeesch employed it indirectly in her work on access to

asocial individual as the subject of law is of recent provenance … The danger of

research on both sides is interdisciplinary (involving more fields than history

Sächsisches Hauptstaatsarchiv Dresden, 13749, Urfriede- und Zetergeschreibuch

Printed Primary Sources

List of Figures and Tables vii

Introduction: Confronting Conflict in Early Modern Europe 1

10 Forgiving Crimes in Early Modern Naples 255

1 Detail of Vassalieu dit Nicolay, Map of Paris, 1609 185