The Thin Border Between Justice and Revenge, Order and Disorder: Vrazda (Enmity) and Institutional Violence in Medieval Croatia

The Thin Border
Between Justice and Revenge, Order and Disorder:
Vrazda (Enmity) and Institutional Violence
in Medieval Croatia
Damir Karbic
One of the characteristics of medieval customary law which mostly
distinguishes it from the present perception of law and order is connected with
the problern of using violence and justifying it for securing justice. This feature
was expressed in many variants, all of which had in common that they were in
some way institutionalized and tenninologically defmed, so most contemporaries
had a clear image of their contents.
Fonnulations which insured achieving justice through resorting to
violence appear in the sources under different names. Sometimes it was the case
that various contents were designated by various tenns, linguistically and semantically
more or less related, but sometimes these tenns were only translations
of the same tenns in different languages. Some of these concepts have attained
vast popularity, such as the ltalian word vendetta, and most of them have come
down in colloquial speech to depict the so-called feud (Gennan: Fehde or
English: blood feud).
The use of violence to insure order and justice is neither a medieval
phcnomenon nor limited to only one civilisation, yet it is one of the basic
mechanisms expressed more or less in a !arge number of societies; its use is
primatily motivated by the need to secure protection for the members of certain
social communities in relation to the outside world. Such an approach thus lies
at the very root of legislation, especially in the case of the applying the talion
principle, present in the oldest known statutes, such as Hamurabi’s and others,
by which it is allowed, in order to achieve justice, to inflict adequate harm on
the person who had violently hurt a victim.1 Still, in the course of historical
development the customs by which an individual insured justice by independently
resorting to force and violence have mostly been replaced by other forrns of
social pressure. The use of force has mostly been taken away from individuals
1 On the principle of talion and its connecrion to the principle of self-help and their ethical
implications, see Emest V an Den Haag, „The Lex Talionis before and after Criminal Law,“
Criminal Justice Ethics II (1 992) 1 : 2-3.
9
and given to the community (in the legal system and its institutions), and such
customs have an aura of illegitimacy and violence in modem perceptions.
One of the main reasons why this development went in such a direction
lies in the manner in which traditional legal history perceived and, for the most
part, still perceives, legal development – as a general constant progress towards
accepting „higher“ principles whose full expression is experienced in modem
society and its law; those principles that are stipulated differently are mostly
perceived as barbaric and primitive.
As in many other aspects of historical research, especially those from the
medieval field, the encounter with other human and social sciences and their
methodologies played an important role in formulating a different attitude from
the one mentioned above, first of all the encounter with anthropology, which
soon led to questioning the belief in the overrated idea of development as progress?
The fust important break-through into a substantially different understanding
of the regulation of violence in the Middle Ages was made by the
Austrian historian Otto Brunner (1898-1982) in his Land und Herrschaft.
Grundfragen der territorialen Verfassungsgeschichte Österreichs im Mittelalter.
3 The book immediately became influential in Austrian and German historiography,
4 but it was unfortunately published just shortly before the beginning of
the Second World War, when Brunner flirted with azism (as did many other
Austrians who were thrilled about the Anschluss). This slowed down the book’s
reception in the historiography of other countries, although the criticism of
BlUnner’s ideology was not related to the book itself, in any case not to the part
relevant to our story.5 The English version came to life only in 1984, by which
time the debate on Brunner’s results had been more or less transferred to (or
better, opened) in the Anglophone historiography.
2 On the importance of anthropology for the transformation of the historical sciences du ring
the twentieth century, see Mirjana Gross, Hisrorijska znanost. Razvoj, oblik, smjerovi (Historical
science: development, shape, directions) (Zagreb: Sveucili􀇇te u Zagrebu, Zavod za
hrvatsku povijest, 1980), 328-3 1 .
3 Otto Brunner, Land und Herrschaft. Grundfragen der territorialen Verfassungsgeschichte
Österreichs im Mittelalter (Vienna: Wissenschaftliche Buchgesellschaft, 1939). I used the
English translation based on the fifth revised Gennan edition from 1965: Otto Brunner,
Land and Lordship. Structures of Governance in Medieval Austria, trans. Howard Kaminsky
and James van Horn Metton (Philadelphia: University ofPennsylvania Press, 1 984).
4 The book received in 1941 a Verdun reward of the Academy of Seiences in Berlin, and had
two more editions during World War II ( 1 942 and I 943). See more in: Brunner, Land and
Lordship, xiii.
5 On tbe topic see more in the preface of the English edition: Brunner, Land and Lordship,
xiv-xvii. Lately, Brunner’s work once again came under the strike of criticism, mostly within
the historiography of the Gennan-speaking area. For further infonnation, sec Peter K.
Miller, „Nazis and Neo-Stoics: Otto Brunner and Gerhard Gestreich before and after the
Second World War.“ Past ancl Presen/176 (2002): 144-186.
10
Concerning the blood feud and similar legal and social institutions,
Brunner emphasized the „legality“ of these forms of „legal“ actions, but also the
fundamental difference in the perception of war and peace in the Middle Ages,
contrary to our contemporary understanding, when war is perceived as something
the opposite of peace and strictly under state regulation. Using the
example of Austria, Bmnner showed that the medieval state did not insist on this
matter and that, besides the conditions ofwar and peace, there was also a certain
condition of „non-peace.“ The terms themselves for some forms of blood feud,
especially the more explicit ones, are identical to the tem1s for war (for instance,
guerra); such conflicts could occur within a state’s borders, even against the
ruler himself, without formally infringing on the fact that the state was at peace.
Brunner also pointed out that there was a clear difference between blood feud
and regular violence, conflicts or disorder. Institutionalised forms of violence
had to be played out according to certain rules and within certain boundaries;
they had to be formally proclaimed, different legal and physical persons had the
right to various forms of conflict in accordance with their legal positions, there
were various ways to tenninate enmity at a certain moment (arbitration, reconciliation),
mostly followed by good documentation (in the Austrian case by charters
called Urfehde), and so on. Persons involved in such conflicts were fonnally
and legally not perceived as criminals, although the opposite side in the conflict
frequently did not admit this fact and used this element as propaganda against
the adversary. That happened especia!ly when a blood feud was directed agairrst
the ruler and he was in a position to suppress it quickly. The basic goal of these
conflicts was not revenge per se, but achieving some kind of justice. The
argurnent against the adversary could also be, if necessary, that his goal was not
just or not correctly formulated. Yet, these conflicts were not only a legal phenomenon
but also a social one, closely connected with the perception of honour
and a sense of duty.6
Brunner’s analysis was continued in a somewhat altered f01m by his
translator, Howard Kaminski. who applied it to research on the existence of
blood feud amongst the French and English nobility, and noticeable silence
among historians relating to it. He explained the non-interest of historians with
the animosity which ‚“statist historians“7 showed towards all phenomena and
institutions that they perceived as a result of state weakness or social disorder. l n
the same context, he stressed the importance of violence and the right t o use i t as
a distinctive mark of Western European nobility.8 The relationship of territorial
authority and right to use violence was also discussed for the most famous form
6 Bruoner, Land and Lordship, 1 -94.
7 While stating that they thought of historians whose research interests were primarily
oriented to the history of the state and its central institutions, wbicb was the main characteristic
of nineteenth- until mid-twenrieth-century historiography.
8 Howard Kaminsky, „The Noble Feud in tbe Later Middle Ages,“ Past and Present 1 77
(2002): 55-83.
11
of medieval blood feud, the Italian vendetta,9 and similar phenomena in the
Occitan cities. 1° For all the aforementioned cases it is evident that these forms of
violently insuring justice were also sanctioned by the society, but there was also
a ce1tain tendency of the community (or state authority) to limit feuding and put
it under direct control.11
* * *
Croatian medieval sources show that the social situation in the late
medieval Croatian Iands was not significantly different from the one depicted by
Bmnner for late medieval Austria or by other authors for England, France and
Italy. In the same manner, Croatian historiography did not give more attention to
the problem, mostly for the reasons mentioned above connected with the impostation
of legal histOiy as a history of continuous legal development. Thus, the
blood feud and other similar phenomena were treated as relics of ancient social
regulations. It is worth mentioning that, to my knowledge, the first „modern“
attempt to interpret the phenomenon was published in Croatian legal and
historical writings as early as 1869 in an article entitled: „On Revenge, Reconciliation
and Vraida according to the Old Serbo-Croatian Legal Custom,“ by
Bozidar Petranovic. 12 But despite this, until the present day the phenomenon has
not resulted in a significant monograph interpreting the historical and legal historical
picture. Cettainly, sorne regulations frorn Croatian legal sources that
touch on this problern are incorporated into Croatian legal historical writings,
such as the synthesis of certain legal branches by Lujo Margetic, 13 but even
there the problern is not specifically researched, rnost of all because of its
incompatibility with today’s general classification of law. A worthwhile rnove to
9 A particularly interesting contribution, with a detailed account of the whole problem, is an
article by the English historian Trevor Dean, „Marriage and Mutilation: Vendetta in Late
Medieval Italy,“ Past and Present 157 (1997): 3-36. On the social roJe of the vendetta in
late medieval ltalian society see also Lauro Martines (ed.), Violence and Civil Disorder in
!talian Cities, 1200-1500 (Berkeley: University of Califomia Press, 1972).
1° For more details see Daniel Lord Smail, „Hatred as a Social Institution in Late Medieval
Society,“ Specu/um 76 (200 1 ) : 90-126. On thc phenomenon of the so-called „capital enmity“
(inimicitia capita/is) see also Robert Bartlett, „Monat Enmities“: The Legal Aspect
o[Hostility in the Midd/e Ages (Aberystwyth: University ofWales Aberystwyth, 1998).
11 Somewhat greater attention was gi ven to research into violence in the early modem period.
As a good overview of Anglo-Saxon historiography (with extensive bibliography) see Guy
Halsall, „Violence and Society in the Early Medieval West: An Introductory Essay,“ in
Guy Halsall (ed.), Violence and Society in the Early Medieval West (Rochester and New
York: Boydeli Press 1998), 1-45.
12 Bozidar Petranovic, „0 osveti, mirenju i vrazdi po negda!lnjemu srbsko-hrvatskome
pravnom obicaju,“ Rad Jugoslavenske akademije znanosti i umjetnosti 6 (1869): 1-19.
13 Vraida or homagium as paying a retribution for murder or other misdeeds is thus
mentioned there. See Lujo Margetic, Srednjovjekovno hrvarsko pravo. Obvezno pravo
(Croatian medieval law. The law of obligations) (Zagreb and Rijeka: HAZU, 1997), 131,
164, 251, 3 15, 328, 363-364, 367.
1 2
a. comprehensive interpretation of legal principles, including the issue of revenge
as one of the mechanisms of reacting to a crime outside of court, is especially
visible in the recent research of Nella Lonza, 14 and somc attention has bcen
given to it in certain works from the field of social history. 15
The institutions in question are mentioned in the sources from the
Croatian area under various terms. The most frequent term that one comes
across is vraida (in the meaning „enmity,“ Latin: inirnicitia or inimicitia
capita/is), but other Latin terms, such as guerra (as mentioned above), are also
used.16 Despite that, various (but actually quite similar) forms of these conflicts
are recorded in all Croatian areas regardless of their medieval territorial affiliation
(in medieval Slavonia as weil as in Croatia and Dalmatia), the type of
society (communal city societies and non-urban areas), and class (from nobility
to peasantry). Regulations of those conflicts appear in normative records (city
statutes, such as those of Split, Dubrovnik, Sibenik and so on, 17 and statutory or
customaty law codes of other regions, such as the law of Poljica 18), but also in
descriptive sources. In the latter, the most frequent records are those of a private
legal nature, in which reconciliation is noted and from which it is possible to reconstmct
in more or less greater detail the whole course of events that led to it
Such examples are offered in the documents conceming the reconciliation
amongst the Subici in 1247,19 the arbitration between the Kacici of Nadin and
14 Nella Lonza, „Tuzba, osveta, nagodba: modeli reagiranj a na zlocin u srednjovjekovnom
Dubrovniku“ (Suing, revenge, settlemcnt: models of reaction to crime in medieval Dubrovnik),
Anali Zavoda za povijesne znanosti HAZU u Dubrovniku 40 (2002): 57-104.
15 On the institution of vraida and the relations between territorial and kindred solidarity, see
Damir Karbic, „Hrvatski plemicki rod i obicajno pravo’· (Croatian noble kindred and customary
law), Zbornik Odsjeka za povijesne znanosti Zavoda za povij“esne i drustvene
znanosti HAZU (hencefonh: Zbornik OPZ) 16 (1998): 84-88.
16 A worthy collection of keywords and interesting ideas on the problem (as weil as on all
other terrninological problems of legal and historical cbaracter) may be found in Vladimir
Mafuranic, Prinosi za hrvatski pravno-povij“esni rjecnik (Contributions to a Croatian legal
and bistorical dictionary) (Zagreb: JAZU, 1908-1922; reprint: 1975). See, for instance,
„vraida“ ( 1 602-1604), „inimicitia“ (437), „blood“ (546-53), „homagium“ (553), „revenge“
(857-59), „to kill“ ( 1 482-1483), „peace“ (657-60), and so on.
17 See bclow. It is wonh mentioning that the first historian who wrote on vraida (perceived as
money compensation for murder) was John Lucic-Lucius, who Started his discussion on
this special Croatian and generally Slavic legal institute with the analysis of chapter 76 of
the sixth book of Dubrovnik’s statute law from 1308. See Joho Lucic-Lucius, Memorie
istoriche di Tragurio ora detto Trau (Yeoicc: Cuni, 1673-74), 514-15; idem, Povijesna
svjedocanstva o Trogiru (Historical testimonies on Trogir), trans. Jakov Stipi§ic, vol. 1-2
(Split: Cakavski sabor, 1979), I 084-87.
18 For more details, see Karbic, „Hrvatski plemicki rod,“ 86.
19 For more details, see idem, „Politi􀎔ka moc i rodovska kohezija. Primjer Subica Bribirskih
(12.-15. st.)“ [Political power and kindred’s cohesion. The example of the Subici of Bribir
(from the twelfth to the fifteenth ceotury)), in Suzana Miljan aod Marko Jerkovic (eds.),
lzabrane teme iz hrvatske povij“esti (Selected themes from Croatian history), Biblioteka
Dies historiae, vol. 3 (Zagreb: Hrvatski studiji, 2007), I 07-08.
1 3
nobles who had a clash with them in the 1270s/0 the reconciliation between the
kindreds of the Karinjani and the Tiskovci-Strmicani in front of the Chapter of
Zadar i n 1394/1 that ofthe nobles of Cetina and the city-commune of Split from
1403,22 of the commune of Brac and the Bogavcici counts from 1 397,23 of
nobles of Kamesnica and Raven in Krizevci County from 1384,24 and so on). A
certain nun1ber of documents exist in which some individuals are authorised by
the city to obtain justice (retaliation) for themselves by violent acts against other
cities or a district population after having exhausted other possible means. These
are, for instance, documents in which the city authorities of Trogir authorise
their citizens to act agairrst those of Split,25 but also verdicts and measures
against those who carried out blood feuding without such authorisation, as it is
seen in the records from Trogir from the end of the thirteenth century on the
dispute between the sons of Lampredio and Jacob Peci.26 Nan·ative sources are
also informative on such practices, such as the The History of the Bishops of
Salona and Split by Thomas the Archdeacon, who retells in great detai1 various
cases that happened inside and outside of Split;27 or the Historia ofMiha, son of
Madio, for whom it is noticeable that he was weil acquainted with the practice
from the teimino1ogy he uses whi1e telling about various events?8 Similar
references can easily be found in other sources as weiL
20 Tadija Smi􀎕iklas et al., Codex diplomaticus Regni Croatiae, Dalmatiae et S/avoniae
(henceforth: CD), vol. 6 (Zagreb: JAZU, 1909), 1 1 1-12 (doc. 99), 128 (doc. 115), 159 (doc.
145). 21 For more details, see Karbic, „Hrvatsk.i plemicki rod,“ 85; lvao Majnaric, „Rod Karinjana
krajem XIV. i tijekom prve polovice XV. stoljeca“ (The Karinjani kindred at the end of the
fourteenth and during the first half of the fifteenth Century), Zbornik OPZ 25 (2007): 42- 43. 22 Lucic-Lucius, Memorie, 516-19; idem, Povijesna svjedocanstva, 1 088-94. 23 24 CD 18, 241 -44 (d oc. 167). CD 16, 489-90 (doc. 369).
25 CD 6, 422-23 (doc. 358). On the problern of how retaliation was determined by the statutes
ofSplit, see below. 26 For more details see Lucic-Lucius, Memorie, 1 27-29; idem, Povijesna svjedocanstva, 322-
27 26. The most famous example of such a case in the city is the contlict of Dujam, son of Draz,
and the sons of Vitalis from the late 1230s, which led to the brief establishment ofthe socalled
„Latin govemment“ (regimen Latinorum) in Split. In the same chapter, Thomas also
refers to the conflict of Count Gregory of Bribir and Count Domald, defining it by the term
of inimicitia capitalis ( 1 84-85). See Toma Arhidakon, Historia Salonitanorum atque
Spalatinorum pontificum, ed. Olga Peric and Mirjana Matijevic Soko! (Split: Knjizevni
krug, 2003), 184-89 (eh. 32); Thomae archidiaconi Spalatinensis I Archdeacon Thomas of
Split, Historia Salonitanorum atque Spalatinorum pontificum I History of the Bishops of
Salona and Split, ed., trans. and annot. by Damir Karbic, Mirjana Matijevic Soko! and
James Ross Sweeney (Budapest: Centrat European University Press, 2006), 2 1 0- 1 5 (eh.
32). 28 Hence, for instance, Yliha, referring to the rebellion of Sibenik and Trogir against Ban
Mladen’s authority in 1322, states that the citybad an alliance conn·a banum Mladenum et
suos fratres guerram promoventes, thus depicting that conflict as a blood feud of the cities
14
In the following 1 will address several cases from which one can observe
the manner in which various forms of blood feud were socially acceptable as a
patt of the customary and legal system as weil as in late medieval legal theory.
A good example where this can be traced is recorded in the statute of Split. The
statute of Split was compiled under the redaction of the actual potestas of Split,
Perceval of Fümo, a lawyer professionally trained in canon and civil Jaw. Thus,
his redaction is distinguished by order and the great influence of Roman Jaw?9
For that reason, institutions like the blood feud are not directly regulated in the
statute, but the existence of the concept (and thus not only its practical but also
its theoretical acceptance) is confirmed by mentioning it in many chapters that
concem other issues. The legal institution of blood enmity is mentioned in
several places in the statute. Thus, for instance, it is stated as the third reason
why parents could disinherit children: „if the son publicly associates and fraternizes
with mortal enemies of his father or his ancestors“ (si jilius frequenter et
publice utitur et conuersatur cum inimicibus capitalibus patris sui, uel suorum
ascendentium).30 The existence of mortal enmity among some persons is also
given as a reason why someone could not be accepted as a witness against
another person (Et in testes non recipiantur . .. inimici capitales contra aliquem)
31 When the regular cowt procedure was dismissed because of the
importance of the case and the authority of the judge was given to the potestas,
as was done, for example, in cases cotmected with managing grain, the
testimony of mortal enemies could not be accepted as a reason for conviction
(dum tarnen per capitales inimicos testes aliquis non debeat condemnari).32 lt is
against the Subici, but not as war (be/lum). See „Incipit historia edita per Micam Madii de
Barbazanis de Spaleto de gestis Rarnanorum imperatorum et summorum pontificum pars
secundae partis de anno Domini MCCXC,“ Vitaliano Bruuelli (cd.), Programma de/!’1. R.
Ginnasio superiore di prima classe in Zara a/la flne dell’anno scolastico 22, 1877-78
( 1878): 4 1 ; Miha Madijev dc Barbazanis, „Historija“ (1-Iistory), Vladimir Rismondo (ed.),
in Vedran Gligo and Hrvoje Morovic (eds.), Legende i kronike (Legends and chronicles)
(Split: Cakavski sabor, 1977), 173.
29 The foundation of the statute of Split in Roman law is explicitly stated by Percival hirnsei f
in the prefaee of the statute. See Statut grada Sp/ita. Srednjovjekovno pravo Sp/ita (The
statute of Split. The medicval law of Split), ed. Antun Cvitanic, 2″d ed. (Split: Knjizevni
krug, 1987), 2; Sratuta et Ieges civitatis Spalati, ed. Jaromir J. Hanel (Zagreb: JAZU, 1 978),
I. The eoooection with Roman law is also acknowledged by modern seholarship. See, for
instanee, the introduetory study of Antun Cvitanic in Sratut grada Splita, xxxix.
30 Book 3, eh. 19; Statut grada Splira, 95; Statuta et Ieges, 76. Althougb that chapter was
under direct intlucnee of the Novella I 15 of Emperor Justinian from 542, it is wonh mentioning
that the possibility of the existence of blood enmity between citizens was not part of
Roman law i n generat and of that Nove//a in particular; thus one deals with a later interpolation.
lt is interesting that in the law code of Poljica, although the tradition of Roman
law is less present there, the Nove//a is repeated almost literally, but without this interpolation.
See: Lujo Margetic, Hrvatsko srednjovjekovno obiteljsko i nasljedno pravo (The
Croatian medieval family and inheritanee law) (Zagreb: Narodne novine, 1 996), 269- 7 1 .
31 Book 3 , eh. 8; Statut grada Splita, 86; Statuta et Ieges, 69.
32 Book 5, eh. 35; Statut grada Sp/ita, 263; Statuta et Ieges, 203.
1 5
interesting that one could also not be a representative in suits agairrst bis mortal
enemies (Nec compellatur facere aduocationem contra inimicos suos capitales)
nor in cases against individuals close to him/3 when it was admitted that such
animosity clouded objective judgement. With these cases of the specific legal
and customary treatment of blood enmity in the statutory law of Split, the sole
definition of mortal enmity written in the regulation on witnesses is particularly
interesting and worth citing in full:
It is considered that mortal enemies are those who were wounded in clashes
among the witnesses themselves or those agairrst whom they would testify, or
if that happened among their fathers, mothers, brothers, sisters or also
cousins or relatives or sons-in-law, and later, reconciliation was not made
among them. Also in other cases of mortal enmities, which are marked as
such by the potestas and his court, this kind of witness can be Jegally declined.
(Inimici autem capitales intelligantur ex percussionibus, factis et commissis
inter ipsos testes et illos, contra quos testimonium proferunt, uel inter eorum
patres, matres, uel fratres, uel sorores carnales, uel etiam consobrinos, uel
cognatos carnales, uel generos, inter quos postea reconciliatio amiciti? non
interuenerit, aut si ali? inimiciti? capitales uid?antur potestati et SU? curi?
esse legitime ad ipsos festes repellendos)?4
It is evident that mortal enmity is considered personal, but also, if not even more
so, as a family affair (in which relatives by marriage are included), and that the
statute insisted on the fact that such animosity bad to be terminated by formal
reconciliation.
Peace and reconciliation among the denizens of Split were basic
characteristics of desirable social organisation that run through the statute. The
importance attributed to them is visible from the paragraph used to define the
duties of a potestas. Exactly the maintenance of „blessed peace and tranquillity“
(bona pax et tranquilitas) is stated there as a reason why during a trial one bad
to hold to the ptinciple of justice (equitas) and law (ius)/5 by which it was
implicitly acknowledged that the breaking of justice automatically led to discord
and revenge. The importance of peace (this time as a collective value important
for the whole community) is even more emphasised bl the fact that a whole
paragraph is dcdicated to the duty of the city rectm} who is to keep peace
(tenere et obseruare pacem):
33 Book 3, eh. 1 0 1 ; Statut grada Sp lira, 144; Statuta et leges, 1 1 3 .
3 4 Book 3 , eh. 8 ; Statut grada Splita, 86; Statuta er Ieges, 69-70.
35 Book 2, eh. 16; Statut grada Splira, 35; Statuta et Ieges, 28.
36 Tbe ehapter does not deal exelusively witb the duty of the potesras, but with the rector in
general. The latter term, with tbat ofp otestas, in the period of the formation of tbe starute of
Split also ineluded individuals who ruled the eity under the title of eaptain (witb a somewhat
emphasized military rote), but it could also have been applied to any other fonn of
eity authority (from eommunal rector to the eity comes). From this notion the importance
16
. . . with all people and persons, cities and communes with which the city of
Split Jives in peace. And if he (the rector) discovers that the city of Split is in
dispute with anyone, he is responsible to do everything to reconcile the commune
and people of Split with them, at the same time preserving the honour
of the city, and with thc consent of the nobles and general council of the city
( … eum omnibus et singulis hominibus et personis, eiuitatibus et eommunitatibus,
eum quibus eiuitas Spalati pacem habet; et si inuenerit, quod
eiuitas Spalati haberet diseordiam cum aliquibus, teneatur pro posse
paeificare eommune cum eis et commune et homines eiuitatis Spalati; cum
honore tarnen dict􀃌 ciuitatis et cum eonsilio nobilium ciuitatis pr􀃌dict􀃌 et
eum consilio generali ipsius ciuitatis).37
This regulation has a counterpart in the chapter which prescribes how the
commune can start a conflict with another party. There the point in question is
not a declaration of war, since it was not possible for Split as a commune to do
that, but actually a variant of blood revenge, this time of a commune against its
enemies, which is apparent from the tetm itself used for that conflict (guerra).
This chapter insists that in the council the question cannot even be raised if there
are fewer than I 00 councillors present, explaining this with a rule that „on
difficult issues a mature and useful decision has to be made“ (arduis factis debet
maturum et salubre consilium exhiberi). The additional importance to the rule is
awarded by the clause that it should not be altered in the futurc, and the
understanding that any discord and contlict are in principle wrang is expressed
also by the apotropeic exclamation cited in the vcry title („About engaging a
feud, not to be“ – De noua guerra, quod absit).38
The imp01tance of city authorities in establishing and maintaining peace
among the city-dwellers is visible even in the fact that the statute comes back to
this question. Thus, in chapter 47 of the fourth book, it is emphasized that „the
potestas, rector, and offleials of the commune of Split“ are required to „do
cverything possible to make those who are quarreHing to reconcile and
harrnonize“ (potestas et reetor et offitiales communis Spaleti teneantur … per
omne bonum offitium, quod eommode fieri polest, eompel/ere discordan/es huius
ciuitatis ad paeem et concordiam faciendam). While doing this, even oathtaking
(vineulo saeramenti) and giving material guarantees can be used as a
means of coercion. If peace could not be achieved without persuasion because of
the depth of discord amongst the parties, the city potestas was given the right to
confine the peace-breakers „in particular places in and outside the city“ (Et si
discordia esset talis, quod non possent partes ad eoneordiam perduei, tune
rector diete eiuitatis faciat diseordantes stare in certis locis infra ciuitatem uel
extra ad suum arbitrium, donee ad eoncordiam peruenerint). In the case of
avoiding submitting warranty, he had the right to ban the trouble-makers from
of this regulation is also visible because the legislators wanted thereby to eosure a Ionger
duration (regardless ofthe possible changes in the system of govemment).
37 Book 2, eh. 1 7 ; Statut grada Splita, 36-37; Statuta er Ieges, 29.
38 Book 2, eh. 34; Statut grada Splita, 44-45; Statuta et Ieges, 36-37.
1 7
the city and its district as a punishment, with an additional fine. The warranties
that the chapter prescribes were substantially higher in the cases which led to
permanent enmity among city families („as a murder of a father, son, brother,
nephew, cousin or an uncle; de homicidio inter eos commisso ut puta de patre,
filio aut fratre carnali, aut nepote carna/i, uel fratre consobrino, uel patruo, uel
auuncufo carnafi) than in those proposed for personal conflicts among nonrelated
individuals. Thus, the guarantee that there would not be violence as revenge
for a murder was I 000 pounds, and that for personal injuries from 25 to
200 pounds.39 Even though the seriousness of the crime is relevantly different,
the discrepancies in the amounts ofthe guarantees still seem significant.
Despite the expressed desire for peace, the statute of Split still
ack:nowledged the necessity of using violence to ensure justice, but in these
cases it emphasized the importance of the procedure and a previous attempt to
resolve the dispute peacefully. One way to achieve justice in this way is based,
in the case of damages inflicted by extemal factors, on the already-mentioned
retaliations about which thc statute of Perceval speaks in great detail in two
chapters of the sixth book. Stating the reasons to sta1t retaliation, the statute
emphasizes robbe1y or existence of unpaid debt i n some other community. The
process begins with a Ietter which the comrnune of Split was to send to the
authority of the area where the accused originated. The Ietter was to be included
in the Book of Reforrnations, to be sealed and sent back to the sender by special
messenger; a report about the delivery also had to be written down in the Book
of Reformations. The Ietter was to demm1d the recipient to do whatever was
necessary so that justice could be served. After delivering the Ietter it was necessary
to wait 15 days for a reply, after which, if there was no reply, a new Ietter
was to be sent, also by messenger, and one was again supposed to wait 1 5 days
for a response. After that deadline had passed, the court of Split, within its
abilities, was to start a procedure and determine the facts (the tmthfulness of the
plaintiffs Statements and the value of the damages) and then report their decision
to the great council, at which at least 60 councillors should be present.
Based on this report, the councillors, in a secret vote with ballotte, were to make
a decision to conduct retaliation and the means of doing it (on property or on the
person and his property).40 The person who caiTied out retaliation was obliged to
bring the things confiscated, within two days after the confiscation, before the
communal authority, who were to assess them and record this estimate in the
Book of Reformations. Only then could the plaintiff be paid from them and, if
he broke this regulation, he was then fined 25 pounds and was to be forced to
surrender the belongings in question to the communal authorities.41 Besides this
description of the procedure, the statute deals with retaliation when it affected
the rights of foreigners, stating that they should be treated fairly so that the
39 Book 4, eh. 47; Statut grada Splita, 200-02; Statuta et Ieges, 156-57.
40 Book 6, eh. 6; Statut grada Splita, 275-76; StahJta et Ieges, 2 1 1-12.
41 Book 6, eh. 7; Statut grada Splita, 277; Statuta et Ieges, 212-13.
18
commune and cttlzens of Split would not suffer damages from retaliation.42
Similar conditions for starting retaliation are prescribed by other statutes as weil,
as, for instance, the statute of neighbouring Trogir from 1322,43 and extant
documentation confim1s that they were canied out in practice as well.44 In any
case, to retaliate was a long and legally regulated procedure, first of all intended
to insure the administration of justice, and was not perceived as arbitrary personal
violence.
In contrast to this practice directed to the outside world, the general
artitude of later scholars has been that revenge and self-aid inside comrnune
were forbidden. This is based firstly on the understanding of chapter 1 5 of the
fourth book of the statute of Split, which forbids that an injustice done to a
person or relative (to the third generation) may be revenged through any other
crime.45 That this is not a conect interpretation is seen from the fact that in some
places the statute mentions revenge as a mitigating circumstance or even as ful l
justification for violent acts. The best example o f this case can be seen in the
statutory definition of a professional assassirr (assessinus), who is to be punished
more severely, the same as the person who hired him for the crime, than those
killing for revenge. The statute explicitly states that:
One who murdered someone catmot be considered a professional assassirr
if the victim had earlier murdered his fathcr, mother, son, brother, sister or
grandchild, or an uncle or relative or cousin; because, when speaking of
murders ofthis kind there is no room to use the word assassin (for the one
who is retaliating). The (only) one who is considered an assassirr is a foreigner
who is paid with money to commit the crime.
(Nec intelligatur assessinus ille, qui percusserit aliquem, qui percussus
prius percusserit patrem, matrem, filium, fratrem, sororem carna/em, uel
nepotem carnalem, aut patruum, aut auuncu/um carna/em, ue/ cognatum
carnalem, auf fratrem consobrinum dicti offendentis, quia assessinus in
talibus coniunctis personis non uendicat sibi /ocum. Et ille inte//igatur
assessinus, qui forensis fuerit et per pecuniam conductus ad maleficium
committendum).46
42 Book 3, eh. 48; Statut grada Splita, 1 12-13; Statuta et Ieges, 90.
43 Book 3, eh. 58; Statut grada Trogira (The statute of the eity of Trogir), ed. Antun Cvitanic
(Split: KnjiZevni krug, 1 988), 153; Srarutum et reformariones civiratis Tragurii, ed. Ivan
Strohal, Monumenta historieo-juridiea Slavorum Meridionaliutn 10 (Zagreb: JAZU, 1 9 1 5),
1 23-24.
44 See, for instanee, note 25 above.
45 Book 4, eh. 1 5 ; Statut grada Splita, 1 8 1 ; Statuta er Ieges, 142. Jnunediate self-defcnee was,
of eourse, perfectly allowed. See: Book 4, eh. 45; Statut grada Splita, 199; Statuta er Ieges,
155.
46 Book 4, eh. 48; Statut grada Splita, 202; Statura et Ieges, 157-58. It is worth mentioning
that the law eode of Poljiea severely punished a eontraeted murder (eh. 37a): Ako Ii bi ubio
tko koga zakonom asasinjskim (If anybody killed someone aeeording to the tradition of
assassins). See Poljicki Statut (The law-eode of Poljica), cd. Miroslav Pera and Zvonimir
Junkovic (Split: Knjizevni krug, 1 988), 436-37.
1 9
That, of course, does not mean that murder was allowed even in the case of
revenge, but it is clear that it was at least a mitigating circumstance and was
understood as socially acceptable behaviour. This attitude is more clearly expressed
in some other statutes. Thus, in the statute of S ibenik, implicitly stated is
an obligation to retaliate for unjustly murdered close relatives, because, for the
most serious insults, as the rather common: „Your wife is a whore,“ it is also
noted that: „lf your father or brother or son died a shameful death or he was
hanged, go and retaliate.“47 Thus, in the case of Sibenik, exercising revenge was
not socially unacceptable, but ignoring it was; and because of the fact that it was
included in the statute in this marmer it may even be considered to have been
legalized by the law.
The fact that, either in Split, revenge was not considered a crime in certain
cases as it is testified to in a regulation in chapter 32 of the fourth book of the
statute, which specifically allows the use of adequate violence (including injuries
with or without weapons) on a foreigner who had hurt some citizen of
Split. The right to retaliate not only applied directly to the victim, but was
extended to his blood relatives (consanguinei), by which the regulation entered
the domain of the classical perception of the blood feud. It was still important to
emphasize that the avengers had to follow a prescribed procedure and to prove
in front of the poleslas that the foreigner stmck fust.48 In any case, this example
shows that the commune was primarily interested in following legal procedure
and controlling arbitrary violence to be sure that violence was committed exclusively
within the framework of its control.
* * *
The aim of this small contribution is to show the need for scholarly
evaluation of the use of institutional (even ritualized) violence as a means to
achieve justice and social balance in the Middle Ages, and also that studying
these phenomena has escaped the epistemological schemes developed by traditional
historiography to a great extent (especially those dealing with the history
of law). The approach of modern historiography addresses the problem from a
much broader interdisciplinary perspective, using frameworks set up by the
social sciences, first of all anthropology. Croatian historiography should also
follow this example. As I have tried to show, sources allow research into these
problems on the Ievel of depicting particular events as weil as through normative
sources (primarily city and other statutes) so that one can hope that they will
soon attract the substantial attention of more researchers.
(Translated by Suzana Miljan)
41 Book 6, eh. 3; Knjiga statuta, zakona i reformacij“a grada Sibenika (The book of the
Statutes, laws and reformations of the city of Sibenik), ed. Zlatko Herkov (Sibenik: Muzej
grada Sibenika, 1982), 175; Volumen statutontm, legum et reformationum civitatis Sibenici
(Venice: Moretti, 1608), fol . 7 5 ‚ .
48 Book 4 , eh. 3 2 ; Statut grada Splita, 1 9 1 ; Sratuta er Ieges, 149.
20
AT THEEDGE OFTHE LAW
MEDIUM AEVUM QUOTIDIANUM
SONDERBAND XXVIII
At the Edge of the Law:
Socially Unacceptable and Illegal Behaviour
in the Middle Ages and the Early Modern Period
Edited by
Suzana Miljan
and
Gerhard Jaritz
Krems 2012
MIT UNTERSTÜTZUNG
DER ABTEILUNG KULTUR UND WISSENSCHAFT DES AMTES DER
NIEDERÖSTERREICHISCHEN LANDESREGIERUNG
KULTUR 1!\ NIEDERÖSTERREICH ‚W
Copy editor: Judith Rassan
Cover illustration:
Justitia: St Michael and the Virgin Mary
Pembroke College, Cambridge
(Photo: Mirko Sardelic)
Alle Rechte vorbehalten
-ISBN 978-3-901 094-30-X
Herausgeber: Medium Aevum Quotidianum. Gesellschaft zur Erforschung der materiellen
Kultur des Mittelalters, Körnennarkt 13, 3500 Krems, Österreich. Für den Inhalt verantwortlich
zeichnen die Autoren, ohne deren ausdrückliche Zustimmungjeglicher Nachdruck,
auch in Auszügen, nicht gestattet ist.
Druck: KOPJTU Ges. m. b. H., Wiedner Hauptstraße 8-10, 1050 Wien.
Table of Contents
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Damir Km·bic, The Thin Border Between Justice and Revenge,
Order and Disorder: Vraida (Enmity) and Institutional Violence
in Medieval Croatia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Marija Karbic, Women on the Wrong Side ofthe Law.
Some Examples from Medieval Urban Settlements
of the Sava and Drava Interomnium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1
Sabine Florence Fabijanec, Ludus zardorum:
Moral and Legal Frameworks of Gambling
along the Adriatics in the Middle Ages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I
Gerhard Jaritz, Outer Appearance,
Late Medieval Public Space, and the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Zoran Ladic, C1iminal Behaviour by Pilgrims
in the Middle Ag es and Early Modern Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Paul Freedman, Atrocities and Executions
of the Peasant Rebe! Leaders
in Late Medieval and Early Modem Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Lovorka Coralic, Unacceptable Social Behaviour or False Accusations:
Croats in the lnvestigations of the Venetian Inquisition . . . . . . . . . . . . . . . . . . . 82
Slaven Bertosa, Robbers, Murderers, and Condemned Men in lstria
(from the Sixteenth to the Eighteenth Century) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
List of Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Preface
This publication contains selected papers from a conference held in
Zagreb (Centre for Croatian Studies, University of Zagreb) in 2009, dealing with
the medieval and early modem period, and translated into English for this
purpose. • The main goal was to gather papers on a topic that has not been
researched enough amongst Croatian historians, that is, the socially unacceptable
and illegal behaviour of individuals who were „walking at the edge of the
law.“ The general idea was also to present various research questions at the
intersection of social and legal history, from the problern of feuding in medieval
society to the various types of delinquency by pilgrims. The emphasis was put
on the Croatian territory in the Middle Ages (from Slavonia to lstria and Dalmatia)
and set in a broader (East) Centrat European context. The articles follow
a chronological sequence, starting from the High Middle Ages, with a particular
focus on the late medieval and early modern period.
The first paper is by Damir Karbic, who dcals with the use of violencc as
a means of obtaining justice and re-establishing order, which was one of the
peculiarities of the medieval legal system when compared with Roman law.
After presenting different cases of feuds in Croatian sources, he discusses, how
medieval communal legislation treated feuds as a separate legal institute, using
the example of the city statutes of Split.
Marija Karbic concentrates on the ways in which women from the
medieval urban settlements of the Sava and Drava interamnium came into
conflict with the law by various criminal actions, from insults or brawls to
abo11ion and murder. She connects those problems with the economic situation
of these women, basing the analysis mainly on theft and prostitution cases. The
women were sometimes punished severely, but sometimes pardoned or punished
minimally.
The problern of gambling along the eastem Adriatic coast is the research
subject of Sabine Florence Fabijanec. She analyses the urban statutory regulations
Stretching from the thirteenth to the sixteenth centUJy. She deals with the
adoption of legal provisions against gambling and shows the diversity of approach
to gambling from city to city.
Gerhard Jaritz analyses the interdependence between Jate medieval
material culture, human behaviour, religious discourse, and legal culture using
the example of actions connected with superbio that played a role in public
• The Croation version of the conference proceedings is publisbed as Suzana Miljan (ed.), Na
rubu zakona: dru§tveno i pravno neprihvatljiva pona§anja kroz povijest, Biblioteka Dies
historiae, vol. 3 (Zagrcb: Hrvatski studiji, 2009).
7
urban arguments. The secular authorities emphasized moral, national, and religious
components, highlighting the necessity of averting God’s wrath.
The perception of the behaviour of pilgrims is the topic of Zoran LadiC’s
contribution. He shows, in cantrast to the idealized vision of pilgrimages and
pilgrims, that pilgrimages made by average medieval or early modem believers
were also considered superstition and that the pilgtims often engaged in fights,
robberies, prostitution, and other forrns of delinquent behaviour.
Paul Freedman offers an ariicle on late medieval and early modem public
acts of torture and execution, which were carefully choreographed events whose
solemnity and meticulous preparation made the infliction of mutilation and
death horrifyingly impressive. He also concentrates on the various topoi of peasant
rebellion as described by literate contemporaries, such as rape, murder,
cannibalism, the roasting of victims, and so on.
Lovorka Coralic deals with Croats accused in the records of the Venetian
Inquisition. Four types of accusation can be recognized: conversion to Islam,
Protestantism, the use ofmagic, and conduct considered improper for clergymen
(priests and other mcmbers of religious orders).
The last article is by Slaven Bertosa, dealing with poor social conditions
in Istria in the early modem period that led to hunger, poverty, depopulation,
and generat insecurity, which in rum provoked dangeraus behaviour, robbery,
and murder. Capital crimes were under the jurisdiction of the Potesta and
Captain of Koper or, respcctively, the Captain of Raspor with his seat in Buzet.
The village communities were also starting to organize themselves by introducing
patrols, although in a modest way.
The collection of articles tries to popularise the topics for one plain
purpose, that is, to erase the border between history and legal studies, since until
now one carmot actually speak of „interdisciplinarity,“ but only of looking at
many research problems from various reference points. Hopefully, this volume
will be useful not only for historians dealing with this poorly researched topic of
(Croatian) historiography, but also for a wider public generally interested in the
functioning of the legal and social system in the past.
Finally, my special gratitude goes to Judith Rassou for copy editing the
volume and to Gerhard Jaritz for offering the opportunity to publish it as a
special issue of Medium Aevum Quotidianum, thus promoting this research on
an intemational level.
Suzana Miljan
8