[SUMMARY]
INNLEDNING
KILDER
DEL A APPELLORDNINGEN
I PÅTALEMYNDIGHETEN
IV BERGEN LAGTING
VI MANNDRAP
A. Lovundersøkelsen og saksutdrag med kommentarXI SODOMI
APPENDIX
FORKORTNINGSLISTE
STRAFFEUTMÅLING OG BENÅDNING I DE ENKELTE SAKER
KILDEHENVISNINGER TIL SORENSKRIVER- OG LAGTINGSARKIV
FIGUROVERSIKT
TABELLOVERSIKT
LOVER
LITTERATUR
SUMMARY
Recent work on the subject of law and order in the late seventeenth
and early eighteenth centuries has done much to highlight the possibilities
of using the assize records of proceedings for detecting and analysing
popular crime. The variety of sentences the subordinate tribunals sought
to control, was both large, and of contemporary interest, embracing such
matters as nonconformity, defamations, withholding of spiritual dues, theft,
witchcraft, murder - and by no no means least - sexual immorality.
From the mass of sentences the court of appeal absorbed the more important
cases, mostly those of death, perhaps with a view among others, to imposing
standards of religious uniformity, leaving the subordinate tribunals with
a hard-core of petty offenders who could be persecuted quickly with a minimum
of bother.
The initial action against those specific types of crime lay with the
people themselves, probably backed up by their prominent and articulate
representatives - the clergy - who would ensure that an offender duly carried
out his penance. The diciplinary role of the court of appeal can not be
denied, but in addition to its diciplinary and criminal tasks, it provided
an important focus for litigation as well, which included a cognizance
of udal property rights, real estate conveyances and other encumbrances.
The author has focused his attention upon one of the courts of appeal
in the 18th century - Bergen lagting - which covered the rural district
of western Norway approximately between latitudes 59 and 62. The judicial
district of the court of appeal represented a natural unit of administration.
Its boundaries were of long standing and underwent no alteration in the
period considered. Sessions were held throughout the year and cases were
taken up from the different jurisdictions, which embraced eight greater
district magistrates (sorenskriverier) and 70 smaller units (tinglag).
The Lagting's district was sparsely populated with roughly 100.000
individuals, approximately one fifth of the total norwegian population.
The numbers hardly changed throughout the period. The demographic development
is characterized by high and stable birthrates and moderate illegitimate
births between three and five percent, while death rates are relatively
high and unstable. The mortality crises like the one in 1718 (repeated
in the 1740s and 1770s) are intense with death rates sometimes close up
to 50%%.
Much of the material which has been examined is derived from the opening
decades of the eighteenth century (1702-1737), when economic and social
conditions were least promising for the majority of the populace. Within
this period war years 1709-1720, years of crisis like 1718 with epidemic
disease and years with harvest failure increased the daily needs and sufferings.
Chapter 2 discusses the legislation which shows the somewhat crooked
and toilsome path towards a more humane and secure procedure attempting
to abandon such excrescences like the lack of resources to obtain appeal
and the absence of public defendants in the court-room. A higher degree
of exploiting the appeal system made it more convenient to control the
subordinate tribunals and their eventually unfounded convictions. From
the start in 1702 when only sentences of death regarding manslaughter and
witchcraft were a matter of public appeal in the Norwegian law of 1687,
the authorities focused upon bringing all sentences of death under control
through the system of appeal. The breakthrough came in 1719 when all sentences
of death regarding crimes such as criminal abortion, incest, sodomy and
adultery were included and no longer dependant on the economic possibilities
of the convicted person.
In the subsequent years the authorities displayed a hectic, lasting
and persisting activity in order to enlarge the public system of appeal
and in 1735, the same year officially appointed defendants entered into
the court-rooms, they also included less serious sentences, such as those
which were punished by years of labour in workhouses or hard labour in
military prisons.
In the same period the institution of reprieve, dependant on royal
grace expanded in order to cope with or overtake the rules of appeal. According
to a royal decree in 1688 all dubious convictions were to be dependant
on royal decision before execution. In 1735 the authorities linked the
rules of reprieve to those of appeal in "the great jump forward". But already
in the following year the royal control was limited to sentences of death,
while the rules of appeal continued to cover sentences of death as well
as less serious crime. Theft was, however, an increasing problem and in
the royal decree of 1747 daylight robbery was kept outside the system of
public appeal and sentences of death made independent of royal decision
before execution.
To avoid situations, where the victim of crime had not the finances
to persue prosecution in privat cases regarding less serious crimes like
theft, force, robbery, vandalism etc. at the subordinate tribunals, or
privat appeal to higher courts, the authorities tried to lighten their
economic burdens by assessing the costs on the whole judicial area. Also
the history of the criminal costs is characterized by progress and setbacks.
The steps forward corresponded with royal decrees in 1712, 1723 and 1732
and the setbacks likewise in 1741 and 1747.
It was a long and troublesome path for the tribunals to follow, but
there was a go-ahead spirit and willingness by the authorities to secure
the legal procedure against the criminals, help the offenders and control
the tribunals through the system of appeal.
In chapter 6-12 we are deeply absorbed in the assize records of proceedings.
After having registered every criminal case the court handled throughout
the period we are left with seven groups of serious crimes: manslaughter,
grand larceny, criminal abortion, incest, sodomy, adultery, men involved
in their third paternal suit and one group of less serious crimes mostly
offences subjected to fines. Every group is treated seperately and introduced
by a decription of the existing delicts 1702-1737 - where the author often
has to go far back in history in order to trace their origin - followed
by an extract of the different cases. Each sections ends with a summary
and conclusions.
Not all persons cited duly appear and submit themselves to the tribunals
censure. Some of them prove cotumacious and escape from their imprisonment.
Others are soldiers and subject to military law. However these are few
in numbers. The author considers criminal abortion, incest, sodomy, adultery
and the paternal cases as prosecutions for immoral behaviour, well aware
of the risk he runs by including criminal abortion. This crime however
has always a background in pregnancy outside marriage, which was a serious
crime of the flesh and subjected to penalities as well as loss of honour.
Besides "the immoral behaviour group", we operate with a secular group
of crimes including manslaughter and grand larceny and finally a group
of misdemeanours or offences.
All serious crime, had to be dealt with by the judge as well as the
jurymen, while offences, except those including an element of honour, were
handled by the judge himself. Most of the offences could therefore, because
of the brevity or superficiality of their treatment, be easily disposed
of at the first appearance. In other words, a distinction is drawn between
those matters which absorbed the whole tribunals attention and those incidents
which were dealt with in a more summary fashion.
The author had some difficulties in finding any motive in the manslaughter-cases.
Half of this group reacted on impulse. They had become excited and were
highly inebriated when they stabbed their victim to death. In other cases
it was not any longer voluntary manslaughter but murder, where the victim
could be their own wife or their mistress. Murder for profit and accidents
when children were killed complete this category of crime.
After having carefully examined the sentences for criminal abortion
we are left with four minor groups of accused: Women previously sentenced
because of illicit relationships. Women related to the father of the illegitimate
offspring. Women exposed to extreme environmental pressures for killing
the foetus and women with various motives.
Incest has been divided into two main groups. Firstly the most serious
crimes - the illicit relationships between (step)father and daughter, brother
and sister, with father and son - where the law ordered cremation after
execution and where a death sentence was far more the rule than the exception,
and secondly an affinity relationship- group where the death sentence almost
always was followed by a petition for mercy.
The apportioning of sentences by the court of appeal varys greatly
from those passed by the subordinate tribunals. Out of 138 death sentences
appealed to "the lagting" only 96 were dismissed. Again 39 of those which
were dismissed were followed by a petition for mercy to the king and most
of them were granted. So we believe that about one or two persons were
executed every year between 1702-1737.
There are however large variations in the sentences measured out within
the different categories of crimes. Women sentenced for criminal abortion
had small chances of escaping the death sentence. Only 5 out of 23 (22%)
were granted either a petition for mercy attached to the sentence or a
change to labour in houses of correction whilst 14 out of 25 men (56 %)
in the category of manslaughter and grand larceny and 16 of 27 men 59 %)
in the category of incest were granted mercy or a charge to labour.
Manslaughter expressed as a percentage per 100.000 individuals was
0,6. Not specially high compared with our own time for example 0,6 1960
and 1,2 1983, while criminal abortion was extremely high in the period
examined compared with our own century.
Sexual crimes were spread all over the area and had their centre of
gravity in the nothern and southern parts while the middle and inner parts
of the region almost were spared for the tragedies. Demographic reasons
as well as different attitudes in different districts might be part of
the explanation.
The following shows the changing pattern in sentences 1702-1737:
|
1702-7 |
1708-13 |
1714-19 |
1720-25 |
1726-31 |
1732-37 |
Sum |
|
|
Sexual crimes |
9 |
15 |
16 |
15 |
25 |
31 |
111 |
|
Secular crimes |
8 |
3 |
2 |
4 |
2 |
8 |
27 |
|
Sub total |
17 |
18 |
18 |
19 |
27 |
39 |
138 |
|
Offences |
13 |
3 |
2 |
6 |
24 |
||
|
Total |
30 |
21 |
20 |
19 |
27 |
45 |
162 |
Maybe the sentences were few in numbers but most of them were no doubt
timeconsuming and highly serious.
Taking the passage of time into account the chief point of interest
is the courts different approach towards criminality. It is quite evident
that the 1726-1737 period forms the peak of a considerable judicial activity
against criminals. As an approximate measure the figures supplied for the
1708-1713, 1714-1719 and 1720-1725 period each needs to be increased more
than twice from those cited for the 1732-1737 period. This initial contrasting
picture is reinforced by an examination of the prosecutions for immoral
behaviour. This was the dominating category of crimes and half of this
group were sentenced in the last decade. Thus much of the expansion in
the diciplinary workload of the court of appeal can be attributed to an
increase in the prosecutions of crimes involving immorality. The court
of appeal was therefore a spiritual as well as a secular tribunal.
According to the figures the 1702-1707 period lies close up to the
1730-1737 period (30 versus 45 sentences) and seems to represent a break
with a pattern of increasing criminality. A more detailed study of the
sentences 1702-1707 however reveals that most of them are offences and
of minor seriousness, mostly resulting in fines while the numbers of manslaughter
and grand larceny (8) are comparable with the last years 1732-1737 (8).
On the other hand the sexual crimes 1702-1707 are at its lowest ebb. Thus
criminality where death sentences were deeply involved did not play any
prominent part between 1702-1707. From that point of view the period was
among the least serious. Consequently two features are readily apparent.
Firstly: the graph movements are largely determined by prosecutions
for immoral behaviour. It is quite steady between 1708-1725 but increases
rather rapidly in the last decade.
Secondly: the number of offences is highest in the start period 1702-1707
and continues at a lower scale being confined to cases including an element
of honour.
Thus we have apparently related or at least complementary phenomena
to explain: The rise in court business subject to immoral behaviour in
the last decade and an almost opposite development where offences are concerned.
Certainly the court of appeal was not able to determine the flow and
range of cases which it handled each year except maybe with regard to offences.
The death sentences therefore tend to reflect the serious topics which
were of particular concern to the tribunals at that time. Until the end
of the 17th century an important part in the correctional strategies was
directed towards those found guilty of witchcraft. From then on the tribunal
concentrated its activity on religious and secular matters and used its
leisure hours on minor crimes like offences. To meet the expansion in the
religious field the court gradually had to follow a restrictive policy
towards offences almost to a minimum.
Such a development is to some extent predictable with a background
of pietistic advance and with the Great Northern war of 1709-1720 as a
disturbing and for some time lasting element. It illustrates the gravity
with which social delicts were regarded by the tribunals and demonstrates
a stricter view almost entirely confined to crimes of the flesh. At the
same time the demographers point out a generally low incidence of illegitimacy
throughout the period from 3 to 5% indicating that relatively few were
brought before the lower courts charged with moral offences.
This leads us to the conclusion that it was a gradual sharpening of
the legal requirements regarding immorality during the last decade which
resulted in a flow of harsh sentences from the subordinate tribunals to
the court of appeal.
However what brought the number of accused before the court of appeal
to such a peak in the 1730s? We know that the clergy raised its forefinger
against the nonconformers already in 1714 and demanded the church dicipline
strengthened. Two years later we observe the first wave of death sentences
in the court of appeal against 8 people committed of incest. But from then
on the courts activity against the immoral behaviour group as a whole is
at a minimum until the 1730s. The following, among other factors, should
be taken into consideration. Sentences of death, except within the areas
of witchcraft and manslaughter, were not subject to public appeal until
1719. Poor people standing before the subordinate tribunals involved in
their third paternal suit or accused of grand larceny, incest, adultery
and sodomy had no possibility of appealing against their death sentences.
Secondly the war years 1709-1720 with heavy military losses and soldiers
staying away for long periods from their domiciles, reduced the presence
of young men in their most reproductive years all over the judicial area.
At the same time the ties between the authorities in Copenhagen and the
local authorities weakened and the subordinate tribunals might have sought
simple solutions and tried to avoid death sentences.
Consequently sentences of death might have been executed before 1719
without appeal and the influence of war and its repercussions might have
reduced the number of sinners standing before the court of appeal. The
full effect of pietistic advance might therefore not be visible at the
court of appeal until the 1730s when the criminal arm of ecclesiastical
justice was increasingly called upon to provide a regulatory and policing
service all over the judicial area.
The chief aim of this investigation has been to draw attentation to
the value of the assize records of proceedings, analyse crime and its background
and suggest alternative reasons why movements in the shape and composition
of a court's activity might occur. Obviously the material has provided
extreme and unique possibilities to test hypotheses, observe the business
of judicial administration and the development towards a more secure trial.
Historians should use the sources, which are referred to, reflect upon
the characteristic or contradictory features in the sentences and eagerly
study the development of criminality as an exciting way into history.
Dissertation Database - Bergen University Library