Scholars‘ dispute over the talisman in court (Historical Montenegrin Criminal Law I)

A Montenegrin or mountain dweller who appears in court because of an accusation against him with a stone around his neck, will be physically punished regardless of whether he is innocent or guilty.

Due to the harsh living conditions there, which were characterised by a constant military threat, but also poverty, the historical criminal law of Montenegro has some peculiarities that many might consider strange.

These include the above-quoted Art. 65 of the Code of Montenegrin Prince Danilo I Petrović Njegoš, enacted in 1855.

What is punished? And how?

The „stones around the neck“ meant visibly worn talismans. And the corporal punishment consisted of at least twenty blows, administered on a market day in the market square , i.e. in front of a large audience.

So the whole thing was no chicken-feed!

And why?

But why did Prince Danilo forbid to wear a talisman? And why was this only forbidden in court?

Legal historians have thought about this, but without coming to a consistent conclusion. On the contrary, the question is not only highly controversial, but the scholarly dispute is also very fiercely fought.

Talisman as submission and appeasement of the court?

Ilija Jelić puts forward the theses, that wearing a talisman during a court hearing would have been a specific Montenegrin custom that does not occur among any other Slavic people. Furthermore he claims, that it would ahve been a sign of protest against a great injustice done to one.

At the same time, according to Jelić, it should express that the wearer nevertheless submits to the punishment that the court will pronounce for him. Thus, in the event that the death penalty were to be imposed, there would be no cause for retaliation against the judges by blood revenge. Moreover, once again according to Jelić, Prince Danilo had enacted this law to protect the dignity and independence of the courts.

The starting point of this thesis is the assumption that there were no regular permanent courts in Montenegro until the reign of Prince Danilo. Therefore, a separate court would have been convened for each individual case, especially when the death penalty was threatened (which was often the case).

If the death penalty was then actually imposed, this triggered retaliation through blood revenge also against the members of the court. (This in turn was countered by having the executions carried out by several people. This was presumably to ensure that it remained unclear who exactly had killed the delinquent.)

The counterthesis of Svetislav Marinović

Svetislav Marinović strongly and clearly contradicts this: Jelić`s conclusions are unfounded and without basis in legal history, as they do not stand up to serious and fact-based criticism“.

He goes on to say that the wearing of a talisman in court was not a common custom at all, as only ten cases were known in the course of 100 years. Moreover, this would not have been a specifically Montenegrin matter, as such cases are also known from Serbia and the Herzegovina.

Marinović attacks particularly hard the thesis that the wearer of the talisman wanted to express that he would also submit to a death sentence. In this regard, he states that it „lacks any elementary logic“ because the known cases of talisman wearing had all occurred in proceedings for lighter offences where no death penalty was threatened (theft and fraud).

Likewise, at the time of the enactment of this provision, there were already permanent courts in Montenegro.

Even harsher is his criticism of the thesis that Montenegrin judges lived in fear that they would find themselves the object of retribution through blood revenge because of death sentences, since there would have been hundreds and hundreds of death sentences and there had hardly been any cases of blood revenge. Moreover, the judges had accepted this as an occupational risk in the exercise of their office.

Therefore, Svetislav Marinović sees the reason for this penal provision in the fact that Prince Danilo, as a „typical Montenegrin“, forbade his countrymen „humiliating and rather loose behaviour“ with this „unnecessary incrimination“.

The section „Historical Montenegrin Criminal Law“ will be continued. As soon as the next contribution is translated into English, we will put a link here.

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