Denmark

Homicide in Past and Present Project

Jeppe Büchert Netterstrøm (Uppsala, February 2019)

The early modern cases from Denmark were all taken from the verdict books of the High Court of

Northern Jutland, 1608-1622. All homicides mentioned in the verdict books within this time frame

were included in the investigation (if they met the HHM inclusion criteria). The verdict books from

the high court of Northern Jutland are the earliest extant high court verdict books from the kingdom

of Denmark. Similar verdict books for Sjælland are not extant before the end of the 17 th century

(and for Skåne/Scania they are entirely lost). Thus, the verdict books from Jutland were not chosen

for the HHM analysis because of any particular interest in the Jutlandic area, but because they

represent the best possibility of investigating longer (and representative1) series of homicides in the

Danish realm before the end of the 17th century.

Verdict books from Northern Jutland are extant, with large lacunae, from 1569. The year 1608 was

chosen as starting point for the present investigation because the verdict books before that are very

scattered (only three books, from 1569, 1581 and 1591, survive). From 1608 the material is much

more coherent, although it still has considerable lacunae. Furthermore, homicide cases from 17th

century Denmark were expected to be more comparable to the Finnish and Swedish cases in the

collective project than 16th century cases would have been. The investigation was begun with the

year 1608 and continued chronologically until 200 cases were reached in the year 1622 (which

means that the investigation only covers the first part of the year 1622). Reading through all the

verdicts would have been impossible within the given time frame,2 and homicide cases were

therefore found using multiple entries3 assuring that all homicides mentioned in the verdict books

were included in the investigation.

1 Verdict books of the supreme court of Denmark are extant from 1537. They include a large number of homicide cases but only such cases that were appealed from the lower courts, whereas the Northern Jutland verdicts contain, in principle, all homicide cases from Northern Jutland, yielding a more full and representative picture. (During the investigation of the Jutlandic material it became clear, however, that this only pertains to rural homicide cases, see below).2 The verdict books 1608-26 contain a total of 5.144 verdicts, see Henningsen, Johansen and Tamm.3 Nørgaard-Pedersen (regest in word format allowing word searches); Hofman-Bangs regest (hand-written regest from 1927-30), notes extracted from Hofman-Bangs regest from the project 16.000 jyske domme (see Henningsen, Johansen and Tamm); Poul Rasmussen.

Extant verdict books from the high court of Northern Jutland, 1608-1622

The high court district was divided into three subdistricts each with its own verdict book (A-C).

X = Verdict book extant, used in this investigation

x = Verdict book extant, not used in this investigation

Blank: Verdict book not extant

A B C

1608 X

1612 X

1616 X X X

1617 X X X

1618 X X X

1619 X X

1620 X

1621 X

1622 X x x

The high court (landsting) of Northern Jutland was a court of appeals in the middle of the judicial

hierarchy between local courts (hundred courts, town courts, manor courts (herredsting,

byting/rådstueret, birketing)) and the supreme court (kongens retterting). Geographically, the high

court district of Northern Jutland (Nørrejylland) encompassed the area north of the river Kongeåen

as well as a few small royal enclaves in the Duchy of Schleswig (i.e. Sønderjylland) south of

Kongeåen.

According to the medieval Law of Jutland (1241), which was in effect until 1683, each homicide

case was to be investigated by a permanent local jury, the so-called sandemænd (men of truth-

seeking), who should travel to the high court, which was located in Viborg town, to give their

verdict under oath. This arrangement was still in function in the investigated period. The

investigated verdict books, which in principle record all verdicts passed at the high court, were

therefore expected to contain all verdicts in homicide cases of Northern Jutland. However, the

investigation of the 200 homicide cases showed that this only pertained to homicide cases from

rural districts (hundred court and manor court districts). Homicide cases from urban jurisdictions

were concluded at the local courts (town court, municipal court) and only brought before the high

court if they were appealed. Only 21 of the 200 analyzed homicides were committed in urban areas

although 15-20% of the population lived in towns and homicide rates were probably higher in

towns than in the countryside.4 An unknown number of homicides must have been committed

within urban jurisdictions without reaching the high court. The verdict books of the high court of

Northern Jutland therefore have a good coverage of rural homicides, less so when it comes to urban

homicides. Of the 21 homicides committed in urban areas (and treated by urban courts), some were

committed by peasants (not townsmen), which means that the vast majority of the 200 homicides

were committed by peasants. None of the 200 homicides were committed by members of the

aristocracy, since noble killers were to be prosecuted at the supreme court, not the high court.

Map of Northern Jutland with the three high court districts: A, B, C (from Henningsen et al.)

The legal procedure at the high court was in principle accusatorian which means that the homicide

case was initiated and prosecuted by a representative of the injured part (i.e. the kinsmen of the

deceased represented by a chosen relative, usually father, brother or son) of the homicide victim,

and not by the state. In addition, however, royal stewards and noble lords of both perpetrators and

victims were (since 1537) obliged to assist in the prosecution of homicides, and therefore authority

figures and members of the elite were involved (as accusers or defenders) in many of the 4 Cf. Österberg et al.: People Meet the Law, 70-71. Eisner 2014.

investigated cases (and without doubt lurked in the background in some of the cases that were

prosecuted by the peasants themselves). This involvement of authority members can be seen as an

intermediary stage in a long shift from accusatorian to inquisitorial legal procedures that was not

completed before the end of the 18th century.

In the beginning of the 17th century, the judicial procedure itself was still accusatorian even in

homicide cases where royal officers or noblemen prosecuted, which means that the homicide cases

were prosecuted in a similar fashion regardless of whether the prosecutor was a kinsman of the

victim or an authority person. Most of the high court trials followed a procedure where the

prosecutor summoned the local jury to the high court to give verdict in the homicide case; at the

high court, the prosecutor then presented evidence of the perpetrator’s guilt; thereafter, if a

representative of the suspected perpetrator met at the high court, he presented evidence to the

contrary; and in the end, the local jury gave its verdict.

The appeal cases were slightly different, but still followed an accusatorian procedure. The appealing

side summoned the jury which had given the original verdict as well as the opposing side in the

homicide case itself; it then presented evidence that the first verdict had been wrong; the jury and/or

the opposing side then presented evidence to the contrary; and in the end, the high court judges (not

a jury) gave its verdict. The appeal cases were either verdicts from local urban courts or earlier high

court verdicts.

The evidence presented at the high court mainly consisted of written testimonies of the local court,

where the parties had obtained evidence during the preliminary stages of the homicide trial.

Typically, this evidence consisted of eyewitnesses (to the homicide or surrounding events) and

inspections (performed by small ad hoc commissions) of the victim (or the perpetrator if self

defense was claimed). In some cases, open letters from e.g. the barber surgeon who had treated the

victim (or the perpetrator claiming self defense), or the parish priest who had attended to the victim

on his deathbed, were included. In some cases, “rumor witnesses” were presented (giving testimony

that the rumor of the parish said this and that). In other cases, the so-called “law of the bier” (where

the suspect laid his hand on the dead body and called on God to give a sign if he was guilty) was

used as “circumstantial evidence”. But eyewitnesses and body inspections were given clear priority

in the jury’s evaluation of the evidence. If the accused had fled before the trial and did not send

representatives to defend him/herself the high court, it was seen as a strong indication of guilt.

At the high court, the written evidence could be backed up by eyewitnesses who were summoned to

the high court to confirm or deny the testimony they had given at the local court. In some cases,

such eyewitnesses were further interrogated at the high court, but this was not the normal

procedure.

According to the Law of Jutland (1241), the jury could reach one of the following conclusions:

They could convict the accused of voluntary homicide and outlaw him; or they could decide that the

homicide was committed in self defense or out of accident and (in both cases) convict him to pay

compensation (wergeld, mandebod) to the victim’s family. They could also acquit the accused

entirely. This procedure was still followed in the 17th century.

Since 1537, voluntary homicides committed by non-nobles were sanctioned by the death penalty.

Together with the rules from the Law of Jutland, this meant that an outlawry verdict was the same

as a death penalty. If an accused person was arrested and then outlawed, he would be executed. If

an accused person was not apprehended at the time of the trial, he would be outlawed in absentia. If

he was arrested later, he would (in principle) be executed. In the vast majority of the 200

investigated cases, the accused party was at large at the time of the trial. It is unknown how many of

the killers who were outlawed in absentia were arrested and executed later.

The medieval Law of Jutland still applied regarding the sanctions (:compensation) for killing in self

defense or by accident.

An important context for analyzing the homicide cases from 1608-1622 is that they occurred in the

middle of ongoing processes of criminalization and pacification. King and church had since the

middle ages gradually criminalized varying forms of homicide, and this process of criminalization

was accelerated during the 16th and 17th centuries, associated with early modern state building

(caused by military, economic and religious changes). State repression was most probably a main

factor in the simultaneous process of pacification of the broader population which can first and

foremost be deduced from falling homicide levels. Exact homicide rates have not yet been produced

for early modern Denmark, but evidence suggests that Denmark followed the European mainstream

in this regard. Like in other countries, a major drop in homicides seems to have occurred from

around 1630/40. As far as we know, the 200 cases from 1608-1622 therefore occur in a period

where the state tried to criminalize violence and homicide levels were falling, but before the

greatest drop in homicides.

[Note to the table: The high court verdicts from Northern Jutland have been used to

show the drop in homicides in 17th century Denmark by Næss 1994. The homicide

numbers in the table are from Næss’ publication. My recent investigation shows that

the numbers are far from correct, but the main trend still stands]

Criminalization was met by passive and clandestine resistance not just from the broader population,

but also, in certain situations, members of the elite. People’s attitudes to homicide “lagged behind”

from the state’s (intentional killing was tolerated in certain circumstances), and many preferred to

solve homicide cases by settlement and compensation instead of punishment. Such more or less

private settlements (in which the noble lords of the parties sometimes participated) were illegalized

by the state. One way of evading this, it seems, was to redefine voluntary homicides to avoid the

death penalty, for instance by proving that it was committed in self defense, in which case a

compensation could be settled legally. If both parties of the homicide case (as well as their lords and

perhaps the surrounding local community) agreed on this strategy, it was very difficult to do

anything about it; actually, very few actors on the local level wanted to do anything about it.5

The analysis of the 200 cases from Northern Jutland seems to confirm this hypothesis: In a number

of cases, the accuser demanded outlawry of the killer for volutary homicide but then presented

evidence of self defense, in order to achieve a settlement and pecuniary compensation. The reason

5 Netterstrøm 2017.

for the initial demand for outlawry was probably a wish to raise the stakes in the subsequent

compensation negotiations, and perhaps to appear law-abiding in the eyes of the authorities. Of

course, some of these homicides may indeed have been committed in self defense, but in the given

context this was probably not so in all the instances.

Another potential strategy was to redefine voluntary homicide to killing by accident (which was

likewise sanctioned by compensation). The 200 cases contain a handful of killings by accident.

They have been included according to the HHM inclusion principles because there were suspicions

or claims of voluntary homicide. In some of these cases, the modern observer may indeed suspect

that they resulted from voluntary violence, for instance the case where Jep Christensen was killed

by accident by “a knife his mother Mette Nielsdatter held in her hand”, or the case where Las Smed

killed Anders Knudsen by accident after a wedding when he allegedly wanted to throw out the last

guests and tried to push a door closed with a sword which he thought was sheathed because it was

dark.

The mentioned contextual factors lead to the following methodological observations and

reservations concerning the 200 cases from the high court of Northern Jutland:

-they are mostly about peasants and rural society, not as much about townsmen and urban society;

they are not at all about aristocrats as perpetrators or victims of homicide (since such cases were

treated by the supreme court).

-the fact that the law demanded that all (rural) homicide cases should be treated by the high court

makes the verdict books a relatively good source in terms of coverage/representativity; it can be

expected that a large proportion of the (rural) homicides committed in Northern Jutland in the time

period(s) covered are actually treated in the verdict book (a cross check with local court books

should, however, be made in the future).

-however, the accusatorian procedure and the absence of an investigative police force means that

concealed homicides must be under-represented. This seems to be corroborated by the fact that

there was a suspected killer in almost all of the 200 cases, and that there were eyewitnesses to the

homicide in a majority of the 200 cases (that is my impression at least). In many cases of concealed

homicide, it must have been impossible to find out who did it, and to prove it even if there was a

suspect. If there was no suspect, or if there was no proof against a suspect, the case was never

brought before the high court as a homicide case. (However, the high court did treat a number of

cases where the cause of death was unknown or suspicious; such cases were often initiated by the

royal officer, probably to establish if it was a concealed homicide (or to be able to prove that he had

done something about the case if it should later turn into a homicide case); some of these suspicious

deaths may in fact have been concealed homicides, but they are not included among the 200 cases

because the suspicion of homicide was never explicit).

-especially infanticides must be under-represented: They were even harder to discover and prove

than other concealed homicides (hidden pregnancy, victim not missed in local community, easier to

hide dead body, difficult to link it to the mother if found, harder to prove violence because easier to

kill), there were no kinsmen to initiate a prosecution under the accusatorian procedure, and there

was also a certain social tolerance of doing away with unwanted infants. Here, the timing (1608-

1622) of the 200 Danish cases becomes important. The state had been trying to criminalize

infanticide for some time before 1608, but the great leap forward in this respect seems to have come

after 1622 (especially after an ordinance in 1635 which toughened the sanctions). A sample of 200

cases from, for instance, the 1640-50s would probably have a larger proportion of infanticides, not

because more infants were killed, but because the authorities investigated, discovered and

prosecuted infanticides more rigorously. This is, of course, just a guess, but different timing of the

samples may explain differences in this respect between Denmark and Finland-Sweden where the

investigated court records date from a later period with a perhaps more intensive prosecution of

infanticides (given that these processes were synchrone in Denmark, Finland and Sweden).

-the accusatorian procedure combined with fragmented authority structures and a relatively weak

state aggravates the bias which must be expected in all court proceedings used to analyse historical

homicides. There is nothing unusual about eyewitnesses diverging, but it is more difficult for the

historian to know who to “believe” when dealing with pre-modern trials, because the evidence was

presented by very subjective parties (because of the accusatorian procedure), eyewitnesses were

probably more influenced by social and economic pressures, and the jury’s verdict was probably

much less trustworthy than the verdict of a modern law court; power relations probably mattered a

great deal not least when noble lords were involved. (The jury’s verdicts are so brief that they are of

little use in themselves anyway). In many cases, this proves to be a challenge for the coder; the

present coder has solved the problem by trying to combine the claims of both prosecution and

defense with a slight leaning toward the final verdict and also his own evaluation of some of the

evidence when deemed responsible.

-the bias of the sources are far from equally significant in coding the different HHM variables.

Some information is probably quite reliable, especially when the parties have little or no reason to

lie. The main problems arise when it comes to the elements of the homicide narratives that have to

do with the assignment of guilt. This particularly affects variables on motives, premeditation and

victim violence. In many of the cases, the embattled issue was whether or not the homicide was

committed in self defense. This made the huge difference between outlawry (and possibly

execution) and compensation as the outcome of the trial. Here it becomes important, again, to

remember the timing of the Danish sample: It comes from a period characterized by state repression

but still high levels of violence and probably a widespread use of strategies to evade punishment

where many used self defense to cover up voluntary homicides. There may be cases where the

opposite was true: cases where a killing in self defense ended in outlawry for voluntary homicide.

But in light of the context, we may assume that homicides in self defense (affecting VICVIOL,

PREMED, MOTTHR) are over-represented in the 200 Danish cases.

-a general problem is, of course, that some of the verdicts are so brief that they lack information on

a lot of the circumstances of the homicide. The Danish material has general weaknesses regarding

age, occupation, family and precise social status of offender and victim. The Danish cases also often

lack information on motive. In many cases, eyewitnesses to the homicidal event itself (who hit first?

who used a weapon?) were enough to determine whether or not the culprit should be outlawed, pay

compensation or be acquitted, and there was no reason to investigate events leading up to the event

– but it is from such narratives we can often deduce the motive. In many cases, the prosecutor

probably even ignored preceding conflicts and motives deliberately in order to make the homicide

look more “meaningless”. In addition, eyewitness accounts of the verbal quarrel which led to

violence are often hard to comprehend for the modern observer. This means that preceding conflicts

between offender and victim are frequently hard to ascertain. This coder believes that homicides

were often motivated by long-standing conflicts and therefore less spontaneous than they may

appear. A majority of the cases happened between people living close to each other for many years,

and sometimes the place of the incident or the quarrel leading to violence hints at some conflict

whose precise content we can never know. In the opposite direction, many of the homicides were

committed by people who were under the influence of alcohol. However, alcohol may often have

been a catalyst more than the cause of violence. Such discussions are of course relevant to the larger

discussion of whether pre-modern homicides were caused by lack of self-control (Norbert Elias).