LAW AND POWER ON THE ESTATE
By PhD Dorte Kook Lyngholm, The Danish Research Centre for Manorial Studies
Until the 19th century, the Danish manor houses were fundamental social institutions, which were responsible for administrative and legal tasks on behalf of the state. Estate owners had a duty to prosecute breaches of the law on their properties within the confines of the law, but also enjoyed independent scope when it came to determining penalties. The estate owners were also charged with a number of key, local administrative tasks: for example, tax collection, recruitment of soldiers and education.
Today we take for granted the fact that the state has at its disposal a sophisticated local administrative and legal system. However, if we look back at the long period from the late Middle Ages to the first half of the 19th century, the situation was somewhat different. During this period, the Crown had only limited access to officials below the level of lensmand/county governor and was instead directed to cooperation with the existing local authorities.
In this context, the estates played a crucial role. In return for executing a number of local tasks on behalf of the state, the owners enjoyed extensive immunity on their properties. An estate, consisting of a manor house, copyholds and buildings, was considered as a unit and served as a community institution, which carried out legal and administrative tasks on behalf of the state. This setup reached its peak in the 18th century under absolute monarchy, when about half of the population of Denmark lived on estates, and were therefore subject to the local administration of estate owners.
The landowners’ independent decision-making powers in central legal and administrative affairs allowed for abuse of power vis-à-vis the local population, and today we often view the administrative and legal relationship between landowners and peasants in that way. However, it is important to note that the local authority of the estate owners was not by definition a result of arbitrary personal impulses, which challenged, for example, the independent function of the legal system, but more of a central, integral element of that very system.
Estate owners as protectors and prosecutors
In the local judiciary, one of the functions traditionally carried out by estate owners was to act as a prosecutor for their farmers at local courts: a task, which in practice was often carried out by bailiffs (estate managers). Even in the late Middle Ages, copyhold farmers had the right to bring their own cases before the courts, but if they were subject to an offence, which they failed to bring to trial, it was their estate owner’s duty to act as a protector (guardian) and bring the case to the courts.
When, in the first half of the 16th century, the noble estate owners acquired hals- og håndsret over their farmers, this led to an expansion and change of their responsibility for bringing cases to the courts. They were thus responsible for bringing an action: not only if one of their peasants had been the victim of a crime, but also if they had committed one. In the Danish Code of 1683, the absolute monarchy endorsed hals-og-håndsret and the responsibility of the noble estate owners to indict any breaches of criminal law on their estates. During the era of absolutism, as a kind of precursor of today’s public prosecutor’s office, the nobility were charged with the obligation, not simply the right, to take care of this essential element of local law enforcement.
It was not only at the start of the trials, but also at their conclusion, that the estate owners of the nobility were placed in a key position in the local judiciary. Hals-og-håndret meant that, to a certain extent, estate owners were also responsible for the administration of corporal punishment, to which a criminal was sentenced in the courts. For example, they had the right, independently, to administer milder corporal punishment: for example, a ‘ride on the wooden horse’ or a spell in the hole . In this context, it must be understood that estate owners also had the right to punish their subordinates, and consequently the right, like other heads of households, to beat both servants and the estate’s tenant farmers without the courts’ involvement.
Collection of fines
The collection of fines imposed by law was, to a great extent, also one of the noble estate owners’ duties. Since the 13th century, the Crown had delegated its right to impose fines to the likes of the estate owners: the so-called sagefaldsret. This right reached its peak in the 16th century, when the nobility were given the right to collect all fines for legal offences committed by the estate’s residents.
In absolute law, this was explicitly linked to the act of bringing lawsuits: the revenue was regarded as remuneration for the estate owners’ efforts in the local court. Estate owners were given substantial independent leverage in the administration of fines. On one hand, they were authorised to collect them without a judgement. On the other hand they had the right to reduce the legislative rates of fines: in effect, the actual right to reverse the judgements delivered by the courts of the absolute monarchy.
Whereas hals-og-håndsret and sagefaldsret were legal privileges for the whole nobility, the so-called birkeret was only granted to a particularly privileged band of noble estate owners. Birkeret meant that the estate was part of a special jurisdiction, in which the residents were not subject to the ordinary court, but to the court of the estate, the birkeret, for which the estate owner selected and appointed the judge. The birkeret operated according to the same legislation as the ordinary court, and in neither of the courts did the estate owners at any time have actual judicial authority.
The influence of estate owners in the local judiciary
However, by virtue of hals-og håndsret and sagefaldsret, the estate owners’ real opportunities to influence the outcome of criminal proceedings in both an ordinary court and a birkeret were significant. Many court cases did not end with a pronouncement of sentence, but with a settlement between the parties involved. In the negotiations that preceded such a settlement, as the accusing party, the estate owner was in a key position: naturally, any mitigation of a penalty laid down by law could only take place with his consent. Similarly, the actual outcome of cases involving fines, also determined by the estate owners by virtue of the above-mentioned authority, led to a reduction of fines imposed by law.
This independent leverage in the context of sentencing in the local criminal justice system did not include the option of increasing, but only of mitigating, the penalties dictated by law. In other words, the system gave estate owners the right to show mercy to their subordinates. To be shown mercy was often associated with a public negotiation between the offender and the lord of the manor, in which a central element was the fact that the offender was subject to the lord of the manor’s authority. Such negotiations sent a powerful signal to the residents of rural areas: their lords of the manors had the right to show mercy to their subjects, and the Crown authorised them to put this mercy into practice. Consequently, the local court practice served both to legitimise and demonstrate the power and authority of estate owners as a natural and integral part of the ruling world order.
Collection of royal taxes
It was not only in legal matters that the estate owners’ administrative apparatus was used to carry out key tasks on behalf of the Crown. Within the tax system, which had previously been the responsibility of the royal vassals, in the first half of the 17th century the noble estate owners had the right to calculate and collect taxes from the residents of their estates.
With the advent of absolute monarchy this voluntary arrangement ceased, and in 1662 all estate owners (not only the nobility) were obliged to carry out all duties related to the collection of royal taxes from the residents on their estates. As compensation for these new administrative burdens, the land, which was directly cultivated under the aegis of their main farms, was largely exempt from tax. In this context, estate owners were charged not only with administrative, but also economic responsibility for their subordinates’ taxes. If a tenant farmer was unable to pay his tax, his estate owner was personally liable for the amount to be paid to the treasury.
The estate owners were free to deal with any tax arrears and, if they had the necessary funds, they had the option of giving a hand-out to a tenant in distress, who had fallen behind with his payments. On the other hand, even the smallest amount of arrears constituted sufficient legal basis for a landlord to evict a tenant from his farm. So a tax debt could be the beginning of the end for a tenant farmer who had fallen from grace with his estate owner.
Recruitment of soldiers
In 1701, when absolute monarchy established a national militia with soldiers conscripted from rural areas, it was also the estate owners who had to manage the practicalities on the local level. The estates were divided into so-called lægdand, for every 20 tønder hartkorn of copyhold [a certain amount of production], one soldier had to be provided. The estate owners were free to appoint the soldiers, and if the chosen men met the physical requirements, no objections were made to the estate owners’ choice at the county sessions. Military service was basically 6 years. It was unpaid and meant that the conscripted farmhand had to turn up for drill after church every (sometimes every second) Sunday.
In order to facilitate the estate owners’ management of the conscription of soldiers, in 1733 nationwide “adscription”, a type of serfdom, was introduced, which forbade any men between the ages of 14 and 36 to leave the estates, on which they had been born. In the course of the century, the age limit for adscription was expanded and the duty of registration for the male population was made stricter. A farmhand could, however, be exempted from military service, if he was going to take over a copyhold. So, with the threat of removal of the detested military service, estate owners were equipped with an effective means of pressure to force a resistant farmhand to take over a copyhold on the estate.
Churches and schools on the estates
Following the Reformation, the Crown transferred and sold the ownership of a number of churches to private estate owners: a development that really took off in the 1690s under absolute monarchy. The churches were attractive to the landlords. For one thing, by virtue of a share of the church tithes, they represented a source of income. However, this ownership also entailed responsibility for the maintenance of the church buildings. Further, ownership of the parish churches generally meant that the estate owners acquired patronage: the right to appoint the priest and, after 1660, also the parish clerk for the parish in question.
One of the key tasks of the parish clerk was to teach the children of the rural population: a task, which until the early 18th century was mainly about equipping them with the necessary skills to read Luther’s Small Catechism. When it was decided at central level to intensify education efforts in rural areas, the estate owners, as local authorities, became crucial in terms of implementing a number of new initiatives.
1739 saw the launch of a brand new school scheme. This meant that children were required to attend school, and should learn to read, write and do arithmetics. This called for new school buildings in the parishes, and those new buildings had to be financed by the owners of patronage and the parish’s largest estate owners. These regulations were met with extensive protests, and the subsequent legislation maintained the financial responsibility of estate owners, but gave them greater freedom in deciding where the schools should be located. The right to appoint schoolteachers was also entrusted to the estate owners, and from 1740 they were also given the responsibility of determining a teacher’s salary.
The phasing-out of the estates’ legal and administrative functions
The dominant role of estate owners in local government and the administration of justice reached a peak in the 18th century. When the dissolution of the traditional manorial system began with the major agrarian reforms at the end of the century (for example, the sale of copyhold land for freehold), part of the structural basis of this system disappeared. During this period, the majority of the estate owners’ powers were first restricted and then abolished by law. For example, in 1809 the birkeret and the right of patronage were limited to a right of proposal, which granted estate owners the right to nominate three candidates for a position at the court, after which the central administration made the final appointment.
In 1849, the Constitution abolished any rights attached to nobility, title and rank. That signalled the disappearance of the final remnants of the system, in which local administration and the administration of justice had been a mixture of public and private authorities, and which for centuries had been a natural part of existence for the residents of estates in Denmark.