Common violence: vengeance and inquisition in fourteenth-century Marseille.
Medieval violence has a bad reputation. In the words of a student essayist, "Mideval [sic] people were violent. Murder during this period was nothing. Everybody killed someone".(1) Yet however much we might object to this sweeping generalization, the sentiment is not anachronistic. Violence was condemned as harshly in the Middle Ages it is today. Consider the diatribe of the early eleventh-century bishop Burchard of Worms:
Homicides take place almost daily among the family of St. Peter, as if
they were wild beasts. The members of the family rage against each other
as if they were insane and kill each other for nothing . . . In the course
of one year thirty-five serfs of St. Peter belonging to the church of Worms
have been murdered without provocation.(2)
This is violence without reason or justification, comprehensible only if viewed as insanity.
Burchard's characterization of violence as a crime without reason was a little disingenuous, however. Violence was often linked to vengeance in the Middle Ages, and vengeance was something that all could understand, even men of the church. Whatever Abelard's sentiments about the loss of his manhood, he was surely not surprised when the kinfolk of the woman he had seduced and abducted came to the defence of her honour--and their own, for that matter.(3) The need for vengeance was as ancient as the lex talionis; in theology and Christology, the theme of God's vengeance had only recently, in the tenth and eleventh centuries, given way to that of his mercy and suffering.(4) Men of the church were perfectly aware of the social pressures that fostered vengeance in the secular world. The mendicant orders could not have emerged as Europe's foremost peacemakers without this understanding.(5)
This being so, we should understand the rhetoric for what it was and see vengeance as medieval observers would have done, as a practice worthy of condemnation that none the less had deep roots in society and served specific ends. For vengeance does make sense: order arises from predictability of behaviour, and vengeance carries an aura of inevitability. This, at any rate, is what modern anthropologists have been arguing for some time. As students of the stateless societies of north Africa and the circum-Mediterranean region began to observe in the 1940s and 1450s, the feud and its attendant institutions of peacemaking comprised a legal system that offered a basis for political order.(6) Medieval historians, of course, had long been interested in both feuding and peacemaking,(7) and the arguments of E. E. Evans-Pritchard and others concerning the feud were not slow to cross from anthrapology to history. A major conduit was an article published by Max Gluckman in Past and Present in 1955 called "The Peace in the Feud", which developed Evans-Pritchard's argument that the feud, as it expanded through the grades of kinship, inevitably compromised people with a foot in both camps; these people were then activated to quell the discord.(8) J. M. Wallace-Hadrill cited Gluckman approvingly in his own work on the blood-feud in the Merovingian period.(9) The historical literature on this and related subjects has grown apace since the 1960s, offering a way to study order not from the top down, but from the bottom up.(10)
To describe vengeance and peacemaking as components of a logical and rational system, however, is to suggest that the practices can be isolated from other legal and judicial currents in medieval society. This is a very dubious proposition. In recent years, for example, legal anthropologists have argued that there was a good deal of cross-fertilization between native or local legal systems in Africa and Latin America and those imported by European colonists.(11) Much the same holds true for Europe itself, where centralized systems of law emerged at a more leisurely pace. This being so, the most compelling history of vengeance and peacemaking lies not just in describing these practices as elements of an independent and rational system, but also in seeing how, over the centuries, they interacted with (or were circumscribed by) the developing legal systems of kingdoms and nation-states.(12)
The complex legal culture of the city of Marseille in the later Middle Ages offers profound insights into these processes of legal exchange and amalgamation. Italianate in its commercial and legal culture, French in its family structures and destiny, Mediterranean in the breadth of its trade, the great Provencal port provides numerous grounds for comparisons. Blessed with one of the earliest and richest runs of notarial documentation of any French locale, blessed equally with rich judicial archives, the city offers splendid resources to the historian. Marseille's legal culture, moreover, is made all the more compelling by the city's unusual political circumstances. A fiercely independent commune for much of the first half of the thirteenth century, it had fallen in 1252 to Charles of Anjou, king and founder of the expansionist Angevin dynasty of Naples and count of Provence by virtue of a strategic marriage.(13) Yet in Charles's own lifetime, the Angevin dynasty -- hobbled by the revolt of Sicily in 1282 and undermined by the general decay of Mediterranean trade that followed upon the heels of the Muslim reconquest of the Levant -- was falling swiftly from the heights to which it had once aspired. Preoccupied with its own intrigues, he crown had little energy to spare for the governing of Marseille. By the fourteenth century the city had begun to drift out of the orbit of Naples, quietly seizing the independence it had tasted a century before, and thus following a trajectory at odds with the processes of centralization more common in the later Middle Ages.(14)
One result of this trend is that by the mid-fourteenth century, the city's courts, all of them staffed by judges and functionaries nominated by the Angevin crown, lacked the power to back their authority. Noble factions emerged, at least one of which was considered by an observer to be more powerful than the crown itself.(15) Given these circumstances, the Angevin-run court of inquisition, primarily responsible for criminal matters, was (or became) reluctant to prosecute murder and very serious acts of violence. Instead, judges built existing habits of settlement and peacemaking into their own legal edifice, allowing some measure of authority over homicides to devolve on to kinfolk and friends of the murderer and of the victim. They did not invariably do so; evidence reveals that only those assailants with access to powerful social networks or kin groups could expect to benefit from the immunity from prosecution conferred by the threat of the feud or of factional retaliation. The prosecution of violence short of murder reveals a noteworthy battle for rhetorical control that pitted defendants eager to display their social connections against judges interested in counting blows and not much else. All these circumstances reveal the constant dialogue that existed between two seemingly distinct ways of handling violence, and suggest some of the complexities that underlay the legal transformations of late medieval Europe.
The court of inquisition was relatively new in mid-fourteenth-century Marseille. In the early years of the commune, the judicial structure of the city had been rudimentary, and authority over affairs of violence, including feuding and peacemaking, lay with political leaders and peacemakers, not with courts. Marseille's statute on homicide, for example, reveals that the authority to pursue and punish murderers was assigned to the rector and councillors of the commune;(16) this authority may, however, have been supervisory rather than judicial, the aim being to produce a peace settlement rather than to punish.(17)
No court of inquisition, in fact, is mentioned in the constitution of 1252, called the Statutes of the Peace, which emerged as part of the peace-treaty between Charles of Anjou and the conauered city. (18) The document describes the operations of five civil courts, all staffed by Angevin appointees whose terms in office lasted no more than a year. Two lesser courts handled civil pleas; the judges assigned to each, at least in the fourteenth century, were drawn from a pool of local jurists. A third, called the palace court, was the major court of first instance, and behind it lay the courts of first and second appeals. The latter three courts were staffed by jurists brought in from outside.(19) By the mid-fourteenth century, in concert with transformations in Romancanon proceedings and the law of proof then sweeping over the Mediterranean region,(20) Marseille had developed what the sources call a curia inquisitionis. This "court of inquisition" was headed by the palace judge, assisted by an official known as the "vicar" or viguier (vicarius), the chief Angevin representative in the city. The viguier himself, or someone acting in his name, announced the sentences in public parlements, held five or six times a year in a square at the centre of the city. The inquisitorial mode allowed for a more active court, one more willing to view lawbreaking as a crime against the state, than had hitherto been the case.(21) The essence of the inquisitorial method was that once a potential crime had come to its attention, the court was able, on its own authority, to initiate an accusation and assemble witnesses. If the two witnesses necessary for a conviction in Roman-canon law were lacking, the court could use torture to extract a confession from the suspect.
Most of the sentences passed down by the court of inquisition in Marseille were fines, even if we must acknowledge that other forms of punishment usually do not show up in records devoted almost exclusively to pecuniary concerns. This much is indicated by a single register of fines paid by criminal defendants that has survived from December 1330 to the end of November 1331.(22) (Table.) Each of the entries gives a brief description in five or ten lines of the main features of the sentence. Given here in full is a typical sentence, from 22 February 1331: "On the same day: concerning Guilhem Alexi, condemned to pay a fine of 20 shillings by the said lord viguier on the year and day above, since, with malice and furious at heart, he threw Raymon de Tholosa to the ground on a public street".(23)
TABLE PROFILE OF CRIMINAL PROSECUTIONS IN MARSEILLE 1310-1331(*) Type of Incident No. % Violence or threats with weapons 289 58.7 Insults 108 22.0 Verbal threats and other confrontations 24 4.9 Theft 22 4.5 Civil infractions 20 4.1 Bearing illegal arms 17 3.5 Unidentifiable 12 2.4 Total 492 100.1 *Source: Archives Departementales des Bouches-du-Rhone, Marseille, B 1940, fos. [76.sup.r]-[139.sup.r]. The figures in the third column have been rounded up to the next percent.
The register contains 492 entries; of these, 289 were for crimes of violence or the threat of violence of one sort or another (including two rapes). Most of these involved relatively minor wounds, or even nothing more than the drawing of a knife; fines were levied averaging a little more than 30 shillings, equivalent to eight days' wages for an agricultural labourer. Many of the remaining fines were imposed for acts of a similarly confrontational nature, such as bearing illegal arms (17) and making threats (15). Fines for insults were especially numerous, totalling 108. In sum, confrontations of various kinds account for 438 of the 492 entries. The remaining entries concern non-confrontational criminal acts, including 22 thefts and 20 civil infractions, such as selling flour illegally or going out at night without a lantern.(24) Sexual delicts and blasphemy are utterly absent from the list.
This profile, thin in the secret crimes of the household and in the sphere of morals, is at odds with the criminal profiles of other late medieval cities drawn from similar sources. In nearby Avignon, as in Paris, courts levied numerous fines for blasphemy, sexual delicts and thefts.25 The same holds true for Florence in the fourteenth and fifteenth centuries.(26) Marseille's inquisition, by comparison, was far more interested in prosecuting public confrontations.
Logically, this kind of profile would emerge if the inquisition prosecuted only those cases in which malefactors had been captured in flagrante delicto. To capture malefactors, the court of inquisition had developed a rudimentary police force led by the sub-viguier and sometimes by the viguier himself.(27) Transcripts of judicial inquisitions found in appeals court registers reveal that in cases involving violence, the sub-viguier and his familia often arrived while a fight was still under way, usually called to the scene by the neighbours. As a result, an official of the court was able to seize the malefactors while the blood was still fresh on the knife or the insult still lingering in the ears of the witnesses. The justice that resulted from this was summary: defendants in the cases I have read were never allowed to present a defence. The defence -- this seems unique to Marseille -- was reserved for the appeal.
In no inquisition transcript from Marseille is there any indication that the court proceeded against criminal defendants merely on the basis of a report or a rumour, as courts of inquisition often did in other cities. Several victims of theft, vandalism and threatening language were forced to initiate their own accusations and assemble their own proofs.(28) This preference for cases where the malefactors were captured in flagrante reveals an inquisition unwilling to commit time and resources to the prosecution of crime, unwilling to pursue cases involving secretive behaviour or states of mind. This, in other words, was an inquisition that dealt in open-and-shut cases, where the facts were obvious to all; appeals may have been limited in number precisely because the weight of incriminating evidence was so great. This reluctance to tackle more difficult cases is one indication of the court's lack of power.
What is missing from the profile of fines assessed by Marseille's inquisition, therefore, is just as informative as what is present. This is especially true when we consider another class of criminal behaviour that is conspicuous by its absence, namely serious woundings. In the 289 acts involving violence or the threat of it, we find only 17 where blood was shed. There are no truly debilitating wounds such as amputations. Most surprising, the list includes no fines paid for homicides. In the entire register only one reference to a homicide can be found: during a street battle between Johanet Guis and Durant de Batuto, Durant was grievously wounded; he died a short while later. A terse account of the incident was given to explain why a 6-pound fine(29) had been assessed against eleven-year-old Guilhem Guis, the younger brother of the assailant. The lad had emerged from his father's house towards the end of the battle; knife drawn, he had chased the wounded man down the street.(30) His brother, the actual assailant, does not appear in the record.
Why this silence regarding homicide? Jacques Chiffoleau, observing a similar phenomenon in papal Avignon in the fourteenth century, has argued that murderers were punished corporally; and corporal punishments do not find their way into financial records. But Chiffoleau also observes that murderers usually fled the city before they could be captured;(31) moreover, the Avignon court did not always proceed against murderers and other violent offenders where proof of a settlement was offered.(32) Historians and anthropologists of law considering similar forms of judicial restraint have argued that a judicial decision is an artificial ending that does not necessarily resolve the tensions in a dispute.(33) Murder is the offence most likely to generate bad blood between rival families or groups. In the uncertain political climate of midfourteenth-century Marseille, the court of inquisition was more interested in establishing peace than in trying to stamp its tenuous authority on a potentially belligerent and independent-minded population.
As it happens, it is not entirely correct to say that the court of inquisition did not prosecute homicides. Records reveal that the court could pursue various lesser charges should it choose to move against murderers. The possibilities included infractions like bearing illegal arms, congregating in large groups, and going about the city by night. To take an example, fines of up to 100 shillings were assessed against several agricultural labourers and caulkers who had participated in a murder on 20 May 1342.(34) In addition, murderers who fled the city could be accused of the crime and then, if they failed to respond to a series of summonses, be charged for contumacy. In one particularly well-documented case involving a member of the nobility, the squire Amiel Bonafos had participated in the murder of his bitter enemy, Peire de Jerusalem, in May 1356.(35) Following the murder, Amiel hid in the house of his infirm father; several nights later, he fled the city on horseback with a companion, seeking refuge in the countryside.(36) A trial was initiated by the dead man's uncle,(37) and when Amiel failed to answer the summons, he was sentenced to pay a staggering fine of 2,000 pounds simply for contumacy.(38) His allies, the Martin brothers, fared worse: each was fined 4,000 pounds, and the prime instigator, Peire Martin, was fined an additional 3,000.(39) To collect such fines, the court could and sometimes did seize the exiled man's property.(40) Technically speaking, the line was levied for a violation of procedure (contumacy), not for murder.
Peacebreaking was a third category under which violent offenders could be prosecuted. It was clearly understood by all concerned that peacebreaking was a heinous crime-more serious, in fact, than the catalysing offence.(41) From the transcript.s of an inquisition into a small war between two elite factions that took place on or about 22 July 1351, we learn that fines of up to 200 pounds were levied against the participants for breaking an existing peace.(42) As Thomas Kuehn has argued with regard to acts of arbitration more generally, this strategy of prosecution worked because instruments of peace were civil contracts: peacebreaking could be prosecuted not as murder, but as breach of contract.(43)
Yet these were indirect ways of prosecuting acts of grievous violence. Instead of forceful resolution, we find a discretion consistent with the inquisition's reluctance to prosecute criminals not arrested in flagrante. It was a discretion that does not seem in keeping with its age, to judge by the violent retributions described in the statute-books of some thirteenth- and fourteenth-century Italian and Provencal communes. Men who murder shall be decapitated, declared a Veronese statute, and women burnt to death.(44) The Italian commune of Apricale, more imaginatively, buried its murderers alive.(45) "If he can be seized, he shall die", observe the statutes of Cuneo simply.(46)
Yet the violent language of these statutes obscures mitigating circumstances,here as elsewhere in Europe.(47) Several statutes list self-defence as a reasonable excuse, but the law could be mitigated in another way. In the civic world of Mediterranean Europe, the authority of any given commune extended only so far, and the legal geography of the region consisted of an untidy patchwork of uncoordinated jurisdictions. Each rommune's jurisdiction was activated only when officers of the peace were able to seize the murderer. Beyond the borders of the commune lay the shadowy world of exile and banishment.(48) Whether the police force could seize offenders before they reached this world depended on its efficiency and, for that matter, on the eagerness of the commune to get involved. We may assume that communes were eager to exercise jurisdiction -- the threats directed at murderers give every indication that homicide was perceived as a crime against the whole commune, not just the family of the victim-but was this really the case? In Marseille, as we shall see, it was not. Murderers were frequently allowed to escape; even when they were caught, their subsequent incarceration, remarkably, was sometimes treated as if it were the equivalent of exile or sanctuary.
To understand why, it is important to realize that exile and sanctuary, in Italy as in southern France, did not mean the end of some sort of legal jurisdiction over the case. Instead, jurisdiction over the absent malefactor was in theory transferred from the commune to the kin of the victim.(49) If a murderer could not be seized within the jurisdiction of Cuneo, for example, 100 pounds was to believed from his estate and he was to be outlawed -- at least, until peace was made with the kin of the victim.(50) The same principle also held for cases other than murder:
It is declared that if anyone from Cuneo or its jurisdiction has sought
exile or has been exiled
for any crime, he will not be allowed to return, nor should he do
so -- even if he has paid the
fine for the offence -- unless he first makes an agreement-with his victim
or his heirs.(51)
A similar passage is found in the statutes of Acqui,(52) and Apricale's state more tersely that the murderer will be perpetually exiled unless the heirs of the victim permit his return.(53) The statutes of both Verona and Nice indicate that exile was a common option and that a peace with the kin was a part of the ensuing judicial process.(54) With any luck, an exiled man could be back in town within a few years of a murder, restored in both reputation and wealth -- and sometimes even more. Five years after his involvement in the murder of Peire de Jerusalem, not only had Amiel Bonafos returned to his native city, he had also been appointed to one of the highest council offices in Marseille, that of syndic.
In a very curious way, the judicial competencies of court and kin in Italy and southern France hinged not on abstract legal principles but rather on the location of the murderer. This was a product of a complex set of circumstances involving the nature of the police force, the quality of the murderer's networks of support outside the city and the nature of the crime. The harshness of statutory law, therefore, could be mitigated whenever the murderer escaped or was allowed to escape. In such cases, the authority of the commune derogated in favour of kin. Without clear evidence that executions were practiced systematically in specific medieval communes, we cannot assume a priori that the law was always carried out with the promised harshness.
Marseille's law concerning homicide and exile mirrors those of the Italian communes. Redacted in the early thirteenth century, during the city's drive for communal independence, Marseille's statute-book was based on a twelfth-century model borrowed from Pisa. The peace-treaty of 1252, in turn, absorbed the book of statutes virtually intact. Because the council of Marseille had only limited legislative powers after 1252, and because the Angevins themselves were too preoccupied to attempt judicial reforms, the statutes underwent no changes in the century that followed; compared with the statutes of other fourteenth-century communes, which periodically underwent revision and concordance, those of mid-fourteenth-century Marseille were manifestly out of date.
The statute that governed homicides and other assaults resulting in death, Qualiter homizidia puniri debeant ("How Homicides Should Be Punished"), ran as follows:
Since it is a matter of great importance to the common good that crimes,
especially illicit homicides, should not go unpunished, by the authority of
this statute we ordain . . . that if anyone shall have assaulted, or
mortally injured another person in Marseille or its territory . . . [and]
man who did such things should have fled from Marseille . . . the criminal
will never, under any circumstances, be allowed or permitted to return to
Marseille or its suburbs (suburbia) at any future time unless he will have
made composition for the crime with four or five of the closest relatives of
the murdered or dead man, and unless, at the same time, he, or another in his
place, will have first paid the fine levied against him for the act or
the rector or councillors or the commune of Marseille . . .
. . . similarly, if the murderer shall be found or san be found anywhere
within Marseille or its territory, he will be taken by the rector or the
councillors of Marseille, or by others acting for them, by force if necessary,
and the rector and councillors will then do with him what they think ought
to be done (que eis videbuntur facienda) . . .(55)
The text speaks of a public concern ([c]um rei publice intersit plurimum . . .), but the early origins of the statute are revealed in the failure to define precisely what the commune could do to the person of the captured murderer. The commune was evidently allowed to levy a fine -- a right, to judge by the register of fines paid, that does not seem to have been used often. The text of the statute, however, is dominated not by this matter, but rather by how the rector and councillors should proceed once a murderer has exiled himself. The statute, moreover, is careful to spell out the nature of composition and the grounds on which the exile will be allowed to return, officially delegating a degree of power over the criminal's fate to the four or five closest relatives mentioned in the statute.
Once the murderer had gone into exile, the system of peacemaking and arbitration came into play. There is plenty of indirect evidence for this system in existing court cases from fourteenth-century Marseille. In July 1339, for example, a dispute between two cutlers climaxed with some regrettable words regarding the paternity of the eventual plaintiff, Johan Suziol. Johan's suit for defamation, asking for 100 pounds in damages, was withdrawn when he subsequently submitted evidence that an agreement had been reached: to continue the suit would have been to disrupt the fragile peace.(56) Cases that ended in arbitration are common enough in the records: many (or even most) accuserinitiated trials ended shortly after the reading of the accusation, and only 18 per cent of 564 palace-court trials over the period between 1337 and 1362 included the testimony of even one witness.(57)
As it happens, we have more authoritative evidence for peace settlements from the notarial archives between 1337 and 1362: five notarized settlements for homicides and three further settlements for grievous wounds short of homicide. These legal drafts,(58) variously entitled instrumentum pacis, compositio, concordia and faciendum pacts, can be found in some of the seventy notarial casebooks(59) extant in Marseille from the middle quarter of the fourteenth century, alongside dotal acts, testaments, loans, indentures to apprenticeship and dozens of other contracts offered by the Roman legal system of Mediterranean Europe. All eight peace acts involve men and women of middling or low status: labourers, carpenters, butchers, bakers, furriers; notarial casebooks were probably consideredion vulgar for the peace acts of the nobility. As with all notarized acts, peace acts follow standard legal formulas that name the parties involved and define their subsequent legal responsibilities.(60) Since the extant casebooks represent only a fifteenth of the original total, it is clear that such settlements were more common than these numbers suggest: had all such casebooks survived from the years 1337 to 1362 -- there should have been around a thousand -- they would probably have recorded as many as seventy-five settlements arising from murders over the entire period.(61) The existence of the eight surviving cases shows that peace settlements for some or most homicides and for a few grave injuries played a role of no small significance in the legal system of mid-fourteenth-century Marseille.
The typical peace formula, significantly, included a clause declaring that all court actions on behalf of the victim would be dropped. In one case, Isnart Bayle, whose kinsman had been murdered, made the following contract with the murderer, Guilhem Bascul:
Isnart Bayle, in the names of those above and for himself and his heirs and
successors and friends whoever they may be, with solemn guarantees
(stipulationibus intervenientibus) promised that he would not proceed
further with the indictments made on these occasions by himself or by
others. Nor would he draw up others anew, nor consent that any be drawn up,
nor will any of those on his side even attempt to bring [a suit] against
Guilhem Bascul by any court,
judge, or chief, by the inquisition or in any other way (62)
The inclusion of this clause in the peace formula is probably the major reason why no remits for homicide appear in the register of receipts from the year 1331.(63)
The peace acts range in length from half a page to three or four pages. The unabbreviated cases all begin with a preamble that speaks of the Christian desire for peace and of the agency of the Devil in spawning hatred. In one of these acts, for example, we find that Adalacia Rogiera, the wife of the baker Jacme Rogier, was brought by the Devil's instigation to offer many insults and contumacious words against Antoni Bort. Antoni was so moved by wrath that he drew his sword and struck her on the head, killing her.(64) The effect of this argument was to treat her death as the result of Antoni's disabling and blinding rage--regrettable, but not homicidal.(65) Following a very brief statement of who had murdered or wounded whom, the formula proceeds to a description of the bad blood existing between the murderer (and sometimes his kinfolk) and the kin of the victim, between two and four of whom are named. When Guilhem Garrigas killed Uguo Clalpin, he and his uncle Andrieu made peace with Uguo's two cousins, Johan Bernis and Johan Bonaut, with Johan's son Peire, and with two of the victim's maternal aunts (amicae), Huga Romea and Resens Berengiera.(66) Similarly, the carpenter Guilhem Bascul, who had killed Guilhem Turel, made peace with the butcher Isnart Bayle, Laurens Gartin, and the rest of his victim's friends, relatives and affines.(67) A peace is made and the kin of the victim are then sternly charged with the duty of keeping it; the force of these acts is generally directed against the victim's kin and not the murderer. Arbiters, where named, were typically noblemen or other members of the patriciate. For example, the two noblemen Montoliu de Montoliu and Aragon de Rabastenc, assisted by two men of common status, helped arrange a peace between the labourer Guilhem Johan and his kinsmen on the one hand, and the victim Peire Tallarone (whom Guilhem had wounded on the arm) and Peire's kinsmen on the other.(68) In some cases, other noblemen, mendicant friars, or jurists made their presence felt as witnesses to the peace. The role of mendicants and other religious is especially noticeable in the five peace acts arising from murders: all were redacted in the house of a religious order. The three woundings, by contrast, were settled in the notary's house or in houses belonging to one of the parties involved.
Rarely were the results of arbitration given in these acts, although we must assume that some form of arbitration had been undertaken prior to the making of any given act. Sometimes an exchange of the kiss of peace was noted. No money composition was ever expressly mentioned, although we can assume that a payment often took place. The labourer Pons Gasin, killer of Alasacia Borgona, concluded a peace with her brother and two sons; in a separate act made on the same day, the murderer gave the daughter of his cousin in marriage to one of the victim's sons, adding a vineyard to the girl's dowry. The dotal act expressly stated that the marriage was made to seal the peace and avoid future danger (pro pacem habenda et futurum periculum evitanda), and the vineyard was clearly part of the settlement.(69)
An exiled murderer, of course, could not be present when a settlement was being arranged--he only returned to approve the pact--and it was up to relatives and friends to arrange a peace. Notarized peace settlements do not describe this process, and we must turn to court records to see how it worked. Early in the year 1353, for example, Lois Orlet had cut off the left hand of Johan Robert during a fight.(70) On 2 September 1353, Johan brought Lois to court--not to accuse him of the amputation, but instead to complain about has failure to fulfil certain conditions of the peace accord that had terminated the dispute: the peace had included a requirement that Lois pay for the medical care of his victim.(71) The testimony reveals that Lois had sought sanctuary in the monastery of St Victor immediately following the fight; the peace had been arranged by two city councillors, Guilhem Blanc and the nobleman Johan de Sant Jacme. Lois's unnamed wife was also involved in making peace; she had sent medicine to the wounded man, and offered him 100 pounds by way of settlement.
Two cases of capital importance show that even when the court seized the murderer before he could seek sanctuary or make his escape from the city, it treated incarceration as exile. One case from the year 1362 reveals that the butcher Anhellon Fabre, a man of some standing and good connections in the community, had been imprisoned immediately after he murdered his wife, Dulciana.(72) Those working on his behalf successfully made a peace with the agnates and cognates of his late wife, however, and Anhellon was released from prison. In November, he had the audacity to come before the court to complain that his late wife's relatives were now harassing him, despite the peace. In a similar case, from February 1353, the cutler Nicolau Gamier was imprisoned for the murder of a goldsmith, Antoni Jardin.(73) His relatives went to some lengths to search out the three known kinsmen of his victim, Guilhem Gauderie, Bernat Bonaut and Jacme Bonaut, and made peace with them. None the less, the court refused to release the murderer as he expected, because no peace had been made with the victim's widow, Johaneta--and it was Johaneta's resistance that was keeping the man in prison.(74)
In both these cases, the courts treated incarceration as exile or sanctuary. The practice may have been more common than the number of cases suggests: we hear of these two only because difficulties arose during or after the process of arbitration. The very existence of the practice, of the equivalency drawn between incarceration and exile, reveals the degree to which the court of inquisition was willing to forgo its jurisdiction over violent crime in favour of the catharsis of the peace settlement. To judge by this practice, the ability of a murderer to escape the jurisdiction of the court, in Marseille or anywhere, should not be taken as evidence for the inadequacies of a medieval city's police force. Instead, exile was part and parcel of an untidy but reasonably effective system for prosecuting and punishing homicide and other cases of violent crime, cobbled together from Roman-canon law and from local legal traditions and habits of peacemaking.
This system, it seems, had become so widely accepted in mid-fourteenth-century Marseille that actual revenge killing, at least among people of common status, was relatively rare. There are, in any event, no clear and unambiguous examples in the few surviving court records involving homicide between commoners, although several cases hint at the possibility,(75) and the case of Julian Marquet, discussed below, involves an assault motivated by a desire for revenge. The feuding nobility was another matter entirely; mid-fourteenth-century records reveal a series of revenge killings involving two noble factions that stretches back at least to 1309, and noble defendants, when prosecuted, conspicuously used the logic of vengeance in defending their actions.(76) Yet although common folk victimized by violence were more likely to pursue a peace settlement than were nobles, it was the threat of hatred and retaliation that gave the assailant an incentive to arbitrate. The evident potency of this threat shows that the practice of revenge killing was not quite moribund among commoners.
Delicate handling by the court may not have been everyone's prerogative. And certainly genuine exile was not available to all. It took resources to escape the city for the countryside: friends or kin in the city willing to undertake legal battles to preserve the abandoned estate and initiate a peace, others in the countryside willing to aid the miscreant. Exile, therefore, was self-selected: only well-off criminals could actually hope to benefit from it.
In considering what to do with those left behind, the inquisition did not necessarily incarcerate murderers and wait for a peace settlement. It moved more vigorously in those cases where assailants were kinless and friendless--that is to say, without power. The evidence, almost by definition, is poor: it took resources to put up a fight that could be documented. Yet hints found in the documents support the conclusion. On 15 December 1357, Guilhem Robaut came before the judge of first appeals to retract a confession of homicide.(77) He declared that he had been coerced into confessing to the murder of a court crier, Guilhem Telhet, through fear of torture. Pleading for an adjournment so that he could prepare his case, the defendant explained that he had been unable to meet the original deadline "because of his poverty and his lack of kinfolk". One month later, on 15 January 1358, he was declared innocent of murder--a tribute to his legal acumen.
In a second case, a wealthy cobbler and city councillor, Jacme Johan, had angrily denounced the city judges and the viguier for having hanged a man named Boryaca or Buryata, while at the same time allowing a notorious Catalan pirate, Peire Maura, to go free. For the insult, Jacme had been fined 10 pounds, and he appealed against the sentence in September 1357.(78) The charge against Boryaca was not given, but the name is not Marseillais in origin (hence the notary's difficulty in transcribing it), indicating that he was a foreigner. This is the only known hanging for the entire period between 1337 and 1362; the man's status as a foreigner almost certainly helped determine his fate.
In a third, the inquisition apparently misjudged their man.(79) Late in 1351, Uguo Jaume, originally from the fishing village of La Ciotat but then residing in Marseille, was brought before the palace judge and charged with the murder of Martin Jordan, a citizen of Marseille. The alleged murder took place in Calabria. Uguo, who denied the accusation, was led to a room in the basement of the royal palace and thence to an eculeum, the wooden horse used for torture; there, in the presence of three judges and a notary, his hands were bound behind his back and then raised until he hung above the ground. As he hung there he called out to the notary, "I ask, I ask and require you, Uguo Berengier the notary, to make a public instrument for me!"(80) Immediately the judges ordered him to be brought down from the horse; an act was made; and the prisoner was released. As in the first case, powerlessness was compensated for by legal acumen. Tellingly, we know of this case only because while Uguo was lying crippled in bed, his wife came into court to lodge a complaint against the judges. Uguo was not wholly bereft of support.
These are cases in which the inquisition made free use of execution and torture (or the threat thereof). In others, we find that prisoners who did not dispute the charges laid against them were imprisoned, and then released following a peace settlement. The disparity shows that the court of inquisition could adopt judicial postures that varied according to the status of the murderer; the kinless, the foreigner, the immigrant were treated with greater severity than the well connected or the native. That assessment of status was negotiable, and both family and friends of defendants crowded into the court during trials to assist the defence. The press of bodies proved so burdensome that the council issued a proclamation on 18 February 1351 restricting those attending the defence of a case to lawyers and the male kinfolk of the defendant--fathers, brothers, uncles, nephews and cousins.(81) But in the outdoor booths where the courts of medieval Marseille sat in justice, the ability of the council to keep friends and more distant kin at bay was surely limited. An impressive show of solidarity could have had a considerable influence on the court.
Such may have been some of the circumstances surrounding the peace of Guilhem Bascul, the carpenter, killer of Guilhem Turel.(82) There had been a melee, a rix. Turel had been wounded and "killed outright" (totaliter interfectus). Bascul had been arrested for the murder, banished, and then condemned for contumacy ("delatus tune de dicto homicidio et propter eo banitus fun' et pro contumacia per curia Massilie condempnatus")--a procedure that introduced a new twist to the legal custom of treating imprisonment as exile, yet another imaginative way of fining murderers for something other than murder. Bascul made his act of contrition on Good Friday, in the Dominicans' church, before a great congregation, under the watchful eye of the man who mediated the peace, brother Guilhem of Marseille, prior of the Dominican convent. Bascul was on his knees. Humbly and tearfully, he requested pardon. He offered the kiss of peace and was embraced by his victim's kinsmen: the butcher Isnart Bayle, Laurens Gartin, and unnamed others. He seems to have been utterly alone and kinless.
So why was he treated with a measure of respect by the court? Why wasn't he imprisoned and tortured, like Guilhem Robaut or Uguo Jaume, or summarily executed, like Boryaca? Like all notarial acts, this one terminated with a list of witnesses, in this case seven in number. Two were Dominicans. The other five-- Uguo Esteve, Jacme Gili, Antoni Bonfilh, Peire Bonfilh and Bernat de Soluiers--are identified only by name. Yet in searching through Marseille's archives I have found that all these men, like Bascul, were carpenters; what is more, they all lived on the same street as Bascul, the Carpenters' Street. The kin group assembled on behalf of Turel was more than matched by Bascul's friends and neighbours, and their willingness to make a public stand in his defence may have saved him from inquisitorial excesses, allowing him to be banished and subsequently restored to his community.
Having kith and kin was a sign of respectability, which in turn was rewarded by more lenient treatment, by the inquisition's delegation of authority to the victim's kin and to the peacemaking process. The scarcity of trials for homicide makes it impossible to see the process at work in other cases. Yet other trials involving less serious violence, such as the first of the two discussed below, illustrate how defendants sought to impress the court by the extent of their social networks. In such cases, the defence consisted as much in establishing one's reputation before the uninformed judge as in challenging the inquisition's sequence of events.
To judge by the surviving documents, exile was used exclusively by those guilty of murder or of very serious woundings. The more trivial the wound, the more likely it was that the assailant would remain in town and risk arrest by the inquisition. In a very curious and counterintuitive way, the judicial system of fourteenth-century Marseille was primarily responsible for acts of common and petty violence, leaving more serious cases to the system of arbitration and peacemaking.
Yet what was common, and what was serious? It was difficult for foreign judges to grasp the relations of enmity that sometimes lay behind acts of violence. It was difficult to predict whether an assault might prickle the honour of the victim and give rise to a lasting hatred. In practice, the court avoided the issue entirely. To judge by the few inquisitions that have survived in the appellate court records, the court preferred to proceed with a mechanical kind of justice in cases of violence. It counted the blows given, but never inquired into motive, and rarely bothered to establish the chronology of the events leading up to the encounter. This indifference to motive tended to trivialize violence; the trivialization of violence created grievances; and many defendants chose to pursue those grievances by means of an appeal. In these appeals, we find defendants struggling to restore some dignity to their behaviour by establishing a chronology that helped explain their motives, sometimes using witnesses whose own probity enhanced the value of their testimony. Two cases illustrate the process particularly well.
The first is an appeal made by the master shoemaker Tomas Dorlos against a 10-pound fine levied for a severe beating he had given to a journeyman shoemaker, Jacme de la Barre, a native of France.(83) The fight took place in the late summer or early autumn of 1342 in a part of the city called the Agudaria, in the vicinity of the Scaria, a square alongside the port where many shoemakers formed a community. The inquisition was held immediately after the fight, and Tomas lodged an appeal a month or two later, on 29 October 1342. At the inquisition,(84) all the witnesses claimed to have seen Jacme, severely wounded, first defending himself against Tomas and then lying prostrate on the ground. The first witness, Peire de Moustiers, reported that he had heard an uproar (rumorem) from inside the house of the shoemaker Peire Chamonet. Rushing out, he saw the victim bleeding in the street, and Tomas striking him again with his sword. Asked who else was present, the witness said many others whose names he did not know.(85) This ignorance of names suggests that Peire was not a resident of the quarter; other documents in fact suggest he was a goldsmith or a labourer who lived some distance away. The next witness, the brassworker Johan Raynier, reported that he had heard the uproar from his workshop on an adjoining street; coming to the scene, he saw the accused striking the victim several times with a sword.(86) This witness saw the fight in its earliest stage, did not mention that the victim had fallen to the ground, and explained that he had returned to his workshop almost immediately. He, too, knew none of the names of the other bystanders. Both of the next two witnesses, Salvaire Clemens, a resident of the quarter, and Bernat Spitalier, probably another brassworker, gave similar testimony: Salvaire seems to have arrived on the scene just after the fight had broken out, while Bernat witnessed events after the victim had fallen to the ground.(87)
The testimony given by the witnesses at the inquisition was thin. None of them appears to have been among those who raised the alarm. All of them had missed the beginning of the fight; all reported only part of the events, in a curiously disjointed fashion. The sequence of events is confused. It is not entirely clear, for example, whether the wounds were inflicted before or after the victim fell. With the possible exception of Salvaire Clemens, none of the inquisition witnesses was a shoemaker, and although this may reflect the unwillingness of the shoemakers to become involved in an intraprofessional dispute it is more likely that they were prevented from testifying by the inquisition. When Tomas himself gave evidence, all he was allowed to say was that Jacme had once worked in his workshop and had struck him first.
This flattening of chronology, and this studied ignorance of the context of the dispute, were typical of the inquisition's style in other cases that came to be heard on appeal. As a rule of thumb, the inquisition had no interest in probing into the sequence of events that had led to the dispute. Judges were not interested in finding out whether defendants were in any way justified in being angry; nor, as a rule, did they make any inquiry into the social context of the dispute or the reputations of the parties involved. We cannot tell whether this inquisitorial habit was intentional or not -- it may simply have been an incidental result of the custom of prosecuting only those caught in flagrante. Whatever the circumstances in this case, Tomas was offended, and in his appeal he tried to present the violence within the context of a larger dispute, including the social context. He was not above name-calling: at the inquisition, Jacme was called a shoemaker, but at the appellate hearing Tomas described his victim as a vagabond (homo vagabundus) and referred to him by the diminuitive form of his name, Jacomin. But Tomas's primary concern was to show how his actions were justified by the real chronology of events, revealed by the list of titles (tenor titulorum), or legal arguments, that he presented to the judge and called witnesses to prove:
(1) Jacme owed his ex-master some money. One day Jacme came to Tomas and asked to be paid his wages; Tomas responded "Pay me what you owe me", whereupon Jacme suddenly raised his hand and gave Tomas a great slap (magnam alapam) on the face.
(2) Jacme then took his cane and further wounded Tomas.
(3) Jacme, assaulting Tomas with one hand, seized him by the hair with the other and pulled him about. Seeing that he could not evade the blows, Tomas drew his sword in self defence and wounded Jacme; Jacme then let go.
(4) Jacme was strong, robust, and large-limbed (habens extremitates corporeal magnas), and was more capable of hurting Tomas with a small knife than Tomas was of hurting him with a large one.
(5) Tomas was a peaceful man.(88)
The story seems realistic enough and includes several points, such as the debt and the initial aggression by Jacme, that were not mentioned by the witnesses called by the inquisition. To confirm this story, moreover, Tomas was able to recruit two other shoemakers, a currier, a next-door neighbour, and a close friend, the squire Tomas de Portu. These men exemplified Tomas's respectable social network. At least three of these witnesses had known him for some time and could thus confirm that he was a peaceful man.(89) All claimed to have witnessed the fight from beginning to end, and for the most part the testimony they offered corroborated Tomas's story well. The transcript ends with the declaration that "[t]he case was dropped by higher authority".(90) Yet it is doubtful that this out come was in any way guaranteed. Moreover, Tomas may well have spent more than 10 pounds on his appeal, and there is nothing to suggest that the crown was asked to pay his costs. Obviously, Tomas was motivated by the conviction of a miscarriage of justice as much as anything else; and since appeals were heard in booths in the city's central square, it is quite possible that this highly public depiction of Tomas as a reasonable man would have restored his credit whatever the eventual verdict. The public nature of justice in Marseille, although it may have helped the inquisition to trivialize violence and to shame defendants, also enabled wealthy defendants to restore their damaged reputations.
A second case is that of Julian Marquet and Jacme Guilhem.(91) On a cloudy day in January 1342, Julian, a fishmonger from Catalonia, and Jacme, a fisherman, had a running fight along the quay of the port, which led to blows being exchanged and blood spilt. Witnesses testified that Julian had been walking along the quay away from the church of St John when he was accosted by Jacme, who (according to one witness) said to him "Leave this place!" ("Avas es loc!"). Knives were drawn; Julian turned and fled back up the street and into Nicola Bonifilia's tavern, followed by Jacme. Both men were yelling "Now is the time!" ("Ar es ore! Ar es ora!"), and Nicola screamed "St Mary, help!" ("Sancta Maria acorres!"). As the neighbours gathered, they saw Julian deal Jacme a blow on the right arm, returned with interest by Jacme, who struck Julian twice on the head and once on the right hand. One or two neighbours intervened at this point, placing a wooden bar between the combatants. Several witnesses for Julian claimed that as Jacme re-emerged from the tavern, his brother, Peire Guilhem, challenged him in some way, saying (roughly), "Go back and strike him again because you didn't finish the job" ("Torna lo ferir car tu non las teen fern'").
Medical evidence given at the original inquisition suggested that both men were wounded to more or less the same degree; both were up and about a day or so after the fight. Yet although Julian received three blows and managed to deal only one, and had not precipitated the fight, he was none the less fined 20 pounds by the inquisition, whereas Jacme got away with only 15.
During the inquisition, the court made no effort to put the fight into any kind of context, confining itself to the time it took Julian to walk from the church of St John to the place where Jacme was waiting and the few minutes of the fight itself. The evidence from witnesses was fragmentary. No inquiry was made about the defendants' kinfolk, not even about the suggestion that Jacme's brother Peire was involved in the fight. No inquiry was made into whether Jacme had planned the encounter. No inquiry was made into whether Julian, as a fishmonger and a collector of taxes on fish sales, was involved in any professional dispute with the fisherman Jacme. Some of these points, it is true, emerged when the two men themselves were allowed to testify at the end of the original inquiry, but no effort was made to pursue these points through the testimony of corroborating witnesses. In short, the court concentrated on a short span of time and on a very limited set of motives: very limited indeed, for the court explained Julian's act of violence only by saying that he had been "moved by the agency of the Devil" to strike Jacme the blow which had caused blood to flow.(92) On this showing, Julian was most probably given the larger fine because he had been the first to draw blood, thus escalating the conflict from one involving insults to one involving weapons and bloodshed.
As in Tomas's case, Julian's appeal partly consisted in his establishing a chronology that highlighted his opponent's role in starting the fight and cast his own behaviour as self-defence. But the logic of his argument was informed in part by the logic of vengeance. He sought to prove that he lived in the fishmongers' quarter, some way from the scene of the fight, and was not originally from Marseille but from Catalonia. His enemy, by contrast, was from Marseille and lived in front of the church of St John, as did some of Jacme's own relatives, namely his brother and "many other agnates and cognates, affines and neighbours, and friends".(93) Last, he was alone on the day of the battle. In this version, Julian was deep in enemy territory, stripped of the protective shield of kin. As it turned out, however, this hostile array of relatives and friends dissolved, upon inspection, into the solitary figure of his enemy's brother, Peire Guilhem. Furthermore, we find that his enemy Jacme lived nowhere near where the violence took place; all the witnesses agreed that he lived in the Praepositura, an area of the city far to the north. None the less, by heightening the sense of danger it made a good story and served to confirm the reasonableness of Julian's act of self-defence.
Notably absent from his story, however, was a rationale for Jacme's aggressive behaviour. In a remarkable revelation in the original dossier, Jacme himself explained to the judge of the inquisition that he had been wounded by an unnamed brother-in-law of Julian's some time during the previous year. The implication is clear: his was a legitimate act of vengeance against the kinsman of an earlier aggressor. No effort was made during the original inquisition to inquire into this history, however, and Julian did not mention it on appeal. Julian's silence regarding the vendetta is significant, for it shows that many ordinary folk, unlike Marseille's nobility, were reluctant to tell the inquisition to stay out of their feuds (though Jacme obviously felt no embarrassment about doing so). One did better to employ the language of self-defence, perhaps hinting at bad blood, and leave the thinking to the judge.
Tomas de Portu in the first case and the two antagonists in the second were faced with very different situations. Tomas could not offer an argument based on hatred or the prospect of vengeance, because his victim was friendless. He was forced to play the card of good reputation and self-defence -- strategies that were common enough in other criminal and civil cases. In the second case, by contrast, Julian evoked the threat posed by his antagonist's kin; Jacme, in turn, argued for justifiable vengeance. Arguments based on the existence of mutual hatreds were common in cases involving violence between nobles; if less common in those involving commoners, they can be found in this appeal and in others. Hatred was thought to be the prerogative of the powerful, of those with kin, friends and allies. Whether intentionally or not, court rhetoric removed acts of violence from the context of anger or hatred, and in doing so tended to make common violence exactly that: common and petty, explicable as the product of insanity or diabolical influence, rather than of rational thought processes. In contrast, by evoking hatred in their appeals, criminal defendants were able to make their petty acts of violence seem more heroic.
As with exile, the appellate process favoured those with resources. The least expensive appeal found in these records cost 6 pounds, already more than all but a few of the fines assessed, and the most expensive cost 42 florins (equivalent to about 67 pounds), the price of a modest house or of a decent-sized vineyard, well beyond the reach of all but the wealthiest citizens.(94) As a result, appeals were not common. In the twenty-one registers of Marseille's court of first appeals surviving between 1337 and 1362, only thirty cases are recorded involving violent confrontations. The negotiable qualities of the system clearly favoured those with money. Others had to suffer in silence. If legitimate violence and the pursuit of vengeance came to be restricted to members of the European elite, this was not necessarily because common folk were not honourable: they may simply have lost the chance to tell us so.
To judge by the example of Marseille, justice did not emerge in medieval Europe fully formed, like Botticelli's Venus on the waves of a turbulent past. Nor was peace something that figures of authority imposed on a lawless and violent population, although the legacy of Hobbes encourages us to interpret the Christian discourse of peace in this way. Habits of peacemaking were ingrained in medieval society, along with those habits of vengeance that gave the spur to peacemaking. Some lawcourts recognized the utility of peace. Peace is fulfilling. It satisfies. And in certain circumstances, the royal court of Angevin Marseille was willing to allow the peace process to have its way, delegating its authority over homicide and other crimes of violence to ensure that the process would not be vitiated by a hasty judgement. Both the power vacuum and the continuing reality of group vengeance encouraged this caution.
But a peace was effective only when the assailant and the victim alike were part of a network of kin and friends, where both parties possessed a certain social standing. This was a matter for negotiation, not an object of common knowledge, especially to judges who were foreign to the city, to its families, its neighbourhoods and its problems. So we see justice practiced in a discretionary, delicate way. We see people anxious to discover groups that would legitimate their claims to preferential treatment; and we find many, like Guilhem Bascul and Tomas de Portu, calling upon their friends when kin were in short supply. We see subtle rhetorical battles taking place in court, as inquisition and defendant alike sought to define the context in which acts of violence took place. In these practices for handling violence, there was room for negotiation and flexibility, judicial abuse and popular resistance. It was a system without clear rules. It was a system that the judges and the judged made up as they went along. This was not a legal system that knew where it was going, that developed according to an internal logic regardless of the ends that it served, of the people who used it. It was a hybridizing system, one in which the act of vengeance would eventually merge into the art of litigation, learning a taste of revenge in the writs and pleas that supplanted the swords and knives of an earlier era.(95)
(*) I owe thanks to many friends and colleagues for reading and discussing drafts of this paper, including Thomas A. Green, Raymond Grew, Sarah Harrison, Diane Owen Hughes, Ellen Poteet, Kathleen M. M. Smail and Raymond Van Dam. (1) Taken from a collection of quotes compiled from student essays by a professor of history: Anders Henriksson, "A History of the Past: `Life Reeked with Joy' ", Wilson Quart., vii (1983), p. 168. (2) Burchard of Worms, "Lex familiae Wormatiensis ecclesiae", par. 30, ed. Ludwig Wieland (Monumenta Germaniae Historica, Leges in Quart., i, Hanover, 1893), p. 643, trans. Oliver J. Thatcher and Edgar Holmes McNeal, A Source Book for Mediaeval History (New York, 1905), p. 559. The passage goes on to prescribe the punishment for homicide (whipping, shaving of the head and branding) and continues with lengthy provisions intended to hinder the spread of a dispute between the kin of the murderer and of the victim. (3) Burchard himself acknowledged that in certain circumstances members of "the family of St. Peter" (that is to say, the residents of his diocese) were free to pursue vengeance against any foreigner who had murdered one of their number. For a similar argument regarding Gregory of Tours's equivocal stance on the blood-feud in Frankish society, see J. M. Wallace-Hadrill, The Long-Haired Kings and Other Studies in Frankish History (New York, 1962), p. 128. (4) The theme of God's vengeance in the early Middle Ages is one that goes well beyond this paper, but in so far as it relates to blood vengeance, see Stephen D. White, "Feuding and Peace-Making in the Touraine around the Year 1100", Traditio, xiii (1986), p. 201; Jon N. Sutherland, "The Idea of Revenge in Lombard Society in the Eighth and Tenth Centuries: The Cases of Paul the Deacon and Liudprand of Cremona", Speculum, 1 (1975), pp. 391-410. Also very pertinent are R. W. Southern, The Making of the Middle Ages (New Haven, 1953); Marie-Madeleine Davy, "Le theme de la vengeance au Moyen Age", in La vengeance: etudes d'ethnologie, d'histoire, et de philosophic, 4 vols. (Paris, 1981-6), iv, Gerard Courtois (ed.), La vengeance dans la pensee occidentale; Lester K. Little, Benedictine Maledictions: Liturgical Cursing in Romanesque France (Ithaca, 1993). (5) Two enormously valuable studies of violence and peacemaking in thirteenth-century Italy have emerged in the last few years: Augustine Thompson, Revival Preachers and Politics in Thirteenth-Century Italy: The Great Devotion of 1233 (Oxford, 1992); James M. Powell, Albertanus of Brescia: The Pursuit of Happiness in the Early Thirteenth Century (Philadelphia, 1992). (6) The classic account is E. E. Evans-Pritchard, The Nuer: A Description of the Modes of Livelihood and Political Institutions of a Nilotic People (Oxford, 1947). Evans-Pritchard's theories on the feud and its constraints were subsequently challenged by Jacob Black-Michaud, Cohesive Force: Feud in the Mediterranean and the Middle East (Oxford, 1975). See also Philip S. Khoury and Joseph Kostiner (eds.), Tribes and State Formation in the Middle East (Berkeley, 1990). In recent decades, anthropologists have turned away from the study of the feud, with the exception of Christopher Boehm, Blood Revenge: The Anthropology of Feuding in Montenegro and other Tribal Societies (Lawrence, 1984). The study of banditry and raiding, both of which can be acts of revenge, has been more vigorous, inspired in part by E. J. Hobsbawm, Social Bandits and Primitive Rebels: Studies in Archaic Forms of Social Movement in the 19th and 20th Centuries (Glencoe, III., 1959): see, for example, Michael Herzfeld, "Pride and Perjury: Time and the Oath in the Mountain Villages of Crete", Man, new ser., xxv (1990), pp. 305-22; Paul Sant Cassia, "Banditry, Myth and Terror in Cyprus and other Mediterranean Societies", Comp. Studies in Society and Hist., xxxv (1993), pp. 773-95. (7) Earlier studies include Heinrich Brunner, Deutsche Rechtsgeschichte (Leipzig, 1906); Frederick Pollock and F. W. Maitland, The History of English Law before the Time of Edward I (Cambridge, 1896); F. W. Maitland, "The Laws of Wales.--The Kindred and the Blood Feud", in The Collected Papers of Frederic William Maitland, ed. H. A. L. Fisher, 3 vols. (Cambridge, 1911), i, pp. 202-29. See also Charles Petit-Dutaillis, Documents nouveaux sur les moeurs populaires et le droit de vengeance dans les Pays-Bas au XV siecle (Paris, 1908), which includes commentary and a brief introduction to the large contemporary bibliography (pp. 39-40); Bertha Surtees Phillpotts, Kindred and Clan in the Middle Ages and After: A Study in the Sociology of the Teutonic Races (New York, 1974; first pubd Cambridge, 1913); Gabriel Maugain, Moeurs italiennes de la Renaissance: la vengeance (Paris, 1935); Julius Goebel, Felony and Misdemeanor: A Study in the History of Criminal Law (Philadelphia, 1976; first pubd New York, 1937); Otto Brunner, "Land" and Lordship: Structures of Governance in Medieval Austria, trans. Howard Kaminsky and James Van Horn Melton (Philadelphia, 1992, first pubd Baden bei Wien, 1939). (8) Max Gluckman, "The Peace in the Feud", Past and Present, no. 8 (Nov. 1955), pp. 1-14. (9) Wallace-Hadrill, Long-Haired Kings. For some account of the influence of Gluckman's article on subsequent social history, see White, "Feuding and Peace-Making in the Touraine", p. 258 n. 252. (10) White, "Feuding and Peacemaking in the Touraine", includes a thorough, up-to-date bibliographical survey of recent work; the most recent studies of feuding and vengeance in the Middle Ages and the sixteenth century include William Ian Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland (Chicago, 1990); Edward Muir, Mad Blood Stirring: Vendetta and Factions in Friuli during the Renaissance (Baltimore, 1993). For a more general discussion of conflict, together with a bibliography and a programmatic statement regarding conflict as order rather than anarchy, see Patrick J. Geary, "Vivre en conflit dans une France sans etat: typologie des mecanismes de reglement des conflits (1050-1200)", Annales E.S.C., xli (1986), pp. 1107-33; see also Barbara A. Hanawalt, "Community Conflict and Social Control: Crime and Justice in the Ramsey Abbey Villages", Mediaeval Studies, xxxix (1977), pp. 402-23; John Bossy (ed.), Disputes and Settlements: Law and Human Relations in the West (Cambridge, 1983); Wendy Davies and Paul Fouracre (eds.), The Settlement of Disputes in Early Medieval Europe (Cambridge, 1986). (11) Sally Falk Moore, Social Facts and Fabrications: "Customary" Law on Kilimanjaro, 1880-1980 (Cambridge, Mass., 1986); S. F. Moore, "Treating Law as Knowledge: Telling Colonial Officers What to Say to Africans about Running `Their Own' Native Courts", Law and Society Rev., xxvi (1992), pp. 11-46; Laura Nader, Harmony Ideology: Justice and Control in a Zapotec Mountain Village (Stanford, 1990); June Starr and Jane F. Collier (eds.), History and Power in the Study of Law: New Directions in Legal Anthropology (Ithaca, 1989); Peter Just, "History, Power, Ideology and Culture: Current Directions in the Anthropology of Law", Law and Society Rev., xxvi (1992), pp. 373-411. (12) See Osvaldo Raggio, Faide e parentele: lo stato genovese visto dalla Fontanabuona (Turin, 1990); Stephen Wilson, Feuding, Conflict and Banditry in Nineteenth-Century Corsica (Cambridge, 1988). (13) For the political history of the commune of Marseille up to the advent of Angevin rule in 1264, see V.-L. Bourrilly, Essai sur l'histoire politique de Marseille des origines a 1264 (Aix-en-Provence, 1925). (14) On this, see Edouard Baratier, Histoire de Marseille (Toulouse, 1973); Georges Lesage, Marseille angevine (Paris, 1950). (15) See Archives Departementales des Bouches-du-Rhone, Marseille (hereafter A.D.B.R.), IIIB 820, fo. [161.sup.v], 12 July 1356. This and subsequent citations of court cases give the date on which the case was opened. (16) Les statuts municipaux de Marseille, ed. and trans. Regine Pernoud (Monaco, 1949), bk v, ch. 25, p. 178. (17) See Thompson, Revival Preachers and Politics in Thirteenth-Century Italy pp. 138-9, 200-4. More generally, see Stephen D. White, "Pactum . . . legem vincit et amor judicium: The Settlement of Disputes by Compromise in Eleventh-Century Western France", Amer. Jl Legal Hist., xxii (1978), pp. 281-308; Thomas Kuehn Law, Family, and Women: Toward a Legal Anthropology of Renaissance Italy (Chicago, 1991), p. 21. (18) One might have expected to find mention of a court of inquisition in the first book of the municipal statutes, where city administration is discussed, but does not. See, for example, "De officio judicis Palacii", Statuts municipaux de Marseille, ed. and trans. Pernoud, bk i, ch. 3, pp. 12-13. (19) Some discussion of the judiciary in medieval Marseille can be found in Raoul Busquet, "L'organisation de la justice a Marseille au Moyen-Age", Provincia, ii (1922), pp. 1-15; Raymond Teisserre, Histoire des juridictions et des palais de justice de Marseille depuis leur origine jusqu'a nos jours (Paris, 1934). (20) John A. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Regime (Chicago, 1977). (21) On criminal procedure in Roman law, see A. Esmein, Histoire de la procedure criminelle en France, et specialement de la procedure inquisitoire, depuis le [XIII.sup.e] siecle jusqu'a nos jours (Paris, 1882); John Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, Mass., 1974); Sarah Rubin Blanshei, "Crime and Law Enforcement in Medieval Bologna", Jl Social Hist., xvi (1982), pp. 121-38; Jacques Chiffoleau, Les justices du pape: delinquance et criminalite dans la region d'Avignon au quatorzieme siecle (Paris, 1984); Laura Ikins Stern, The Criminal Law System of Medieval and Renaissance Florence (Baltimore, 1994); John K. Brackett, Criminal Justice and Crime in Late Renaissance Florence, 1537-1609 (Cambridge, 1992). (22) A.D.B.R., B 1940, fos. [74.sup.r]-[139.sup.v]. The list was itself part of a yearly compilation of royal revenues and financial activity in the city made by the clavaire, the royal officer in charge of the city's finances. Only two other such registers, A.D.B.R., B 1941 and 1942, have survived for the mid-fourteenth century; regrettably, in neither of them did the clavaire include receipts from criminal sentences. The acts of violence recorded in the register do not all belong to a single year, since the register includes receipts for fines levied in past years (some defendants had to defer payment on account of poverty). We can reasonably assume that the extra receipts for such fines were babuced by those levied m 1331 that themselves remained unpaid. (23) A.D.B.R., B 1940, fo [87.sup.r], 22 Feb. 1331. (24) The crime in the remaining twelve cases cannot be identified. (25) Chiffoleau, Justices du pape; Bronislaw Geremek, The Margins of Society in Late Medieval Paris, trans. Jean Birrell (Cambridge, 1987). (26) See the discussion in Stern, Criminal Law System of Medieval and Renaissance Florence, p. 214. (27) Records show that these two men were aided by groups of men called familiae, private servants belonging to their households. The role of the sub-viguier in apprehending malefactors is evident everywhere in the appeals against criminal sentences found in the appellate court transcripts, A.D.B.R., IIIB 800 onwards. These two officials were also empowered to enlist ordinary citizens as deputies in moments of crisis; see, for example, A.D.B.R., IIIB 819, fo. [4.sup.r], June 1355 (?: month illegible), testimony of Guilhem de Serviers. This entire register is devoted to several appellate hearings in the cases of men accused of involvement in a street fight. One of their counter-arguments was that the city's viguier had in effect authorized the men to follow him with any arms they could find in an attempt to apprehend a murderer and prevent his death at the hands of his enemies. On inquisitorial procedures, see Brackett, Criminal Justice and Crime in Late Renaissance Florence, pp. 57-68. (28) For several examples, see A.D.B.R., IIIB 41, fos. [224.sup.r]-[234.sup.r], 25 Aug. 1340 (vandalism of a vineyard); ibid., fos. [150.sup.v]-[151.sup.r], 2 Aug. 1340, and IIIB 66, fos. [14.sup.r]-[28.sup.r], 24 Mar. 1362 (theft); IIIB 62, fos. [183.sup.r]-[184.sup.r],27 May 1360, and Archives Municipales de la Ville de Marseille (hereafter A.M.), FF 519, fo. [61.sup.r-v], 9 Aug. 1341 (threats). (29) In what follows, I have translated the Latin words libri and solidi as "pounds" and "shillings" respectively. On Marseille's currency,see H. Rolland, Monnaie des comtes de Provence, [XII.sup.e]-[XV.sup.e] siecles (Paris, 1956). (30) A.D.B.R., B 1940, fo. [76.sup.r-v], 6 Dec. 1330. If his brother Johanet was fined for the homicide, either the frne was still unpaid or an appeal had been made to a higher court. (31) Chiffoleau, Justices du pape, p. 148. (32) Ibid., pp. 222-3; see also Stern, Criminal Law System of Medieval and Renaissance Florence, pp. 27-8. (33) Marvin B. Becker, "Changing Patterns of Violence and Justice in Fourteent-hand Fifteenth-Century Florence", Comp. Studies in Society and Hist., xviii (1976), p. 282. See also the useful interdisciplinary discussion in Kuehn, Law, Family, and Women, pp. 19-21. (34) A.D.B.R., IIIB 808, fos. [123.sup.r]-[159.sup.r], 23 July 1342, and see fo. [137.sup.r], for a description of the statutes and proclamations (preconisationes) that the men offended against. The accusation goes on to relate that the men had gathered at a friend's house intending to murder Uguo Robert, but the murder itself was ancillary to the specific charges. According to testimony given on behalf of the defendants, the same group of labourers and caulkers had been involved in the murder of a butcher named Antoni Raynaut, brother of a close friend of the victim in this case: ibid, fos. [127.sup.r]-[131.sup.v]. This series of murdes been some of the characteristics of a feud (although one group seems to be doing all the killing), but the judge had little interest in the subject and never probed into the case's antecedents, leaving us in the dark. (35) A.D.B.R., IIIB 820, fos. [8.sup.r]-[103.sup.v]. The appeal itself opened on 7 July 1356. (36) From the way the case develops, it is clear that the Jerusalem militia was a far greater threat to Amiel than the crown's police force was. (37) A.D.B.R., IIIB 820, fo. [8.sup.v] (38) Ibid., fo. [8.sup.r]. (39) Ibid, fos. [1.sup.r]-[6.sup.v]. (40) That is, if the exiled man had any property. This was a delicate point. In the case of Arniel Bonafos, the procurer declared that Arniel was in patria potestas: his father was his legal administrator (ibid, fo. [8.sup.v]). Technically, then, Amiel possessed no property in his own name. A Marseille statuts (De parentibus pro filis, et e converso, non multandis) makes it clear that a father could be held liable for his son's crimes -- but only after the father's own death or entry into a monastery: Statuts municipaux de Marseille, ed. and trans. Pernoud, bk v, ch. 28, p. 179. I think it unlikely that Marseille's court had the institutional memory to carry out this threat, assuming the father lived for at least several years after the event. (41) The Italian communes also condemned peacebreaking in harsh terms: Thompson, Revival Preachers and Politics in Thirteenth-Century Italy, p. 176 and ch. 7. (42) See A.D.B.R., IIIB 811, fos. [15.sup.r]-[101.sup.v], appeal heard 12 Dec. 1351. Although the record of this particular case is fragmentary and does not explain the reason for the fine, we know from another case that a peace had been set up between the rival parties on 24 March 1350, and the fines probably arose as a result of this peace having been broken. Extant peace acts usually stipulate a 100-pound fine in the event of a transgression. The small war of 1351 was itself followed immediately by another peace dated 26 July 1351. Copies of both acts of peace are included in the appeal arising from the murder of Peire de Jerusalem; for the transcript (Tenor instrumentorum productorum super pace), see A.D.B.R., IIIB 820, fos. [16.sup.r]-[18.sup.v], 7 July 1356. (43) Kuehn, Law, Family, and Women, p. 69. (44) Gli statuti Veronesi del 1276, ed. Gino Sandri (Venice, 1940), p. 410. (45) Gli antichi statuti di Apricale (1267-1430), ed. Girolamo Rossi (Bordighera, 1986), p. 21. (46) Corpus statutorum comunis Cunei, 1380, ed. Piero Camilla (Cuneo, ), p. 220. (47) Thomas A. Green, Verdict according to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (Chicago, 1985); Douglas Hay et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (New York, 1975). (48) On exile, see Randolph Starn, Contrary Commonwealth: The Theme of Exile in Medieval and Renaissance Italy (Berkeley, 1982); on banditry, see Raggio, Faide e parentele, esp. ch. 8. (49) See, for example, Thompson, Revival Preachers and Politics in Thirteenth-Century Italy, pp. 143-5; he bases his arguments on statutory law. (50) Corpus statutorum comunis Cunei, 1380, ed. Camilla, p. 221. (51) Ibid. (52) Statuti vetera civitatis Aquis, ed. Giuseppe Fornarese (Alessandria, 1905), p. 25. (53) Antichi statuti de Apricale (1267-1340), ed. Rossi, p. 21. (54) Statuti Veronesi del 1276, ed. Sandri, pp. 410-15; for the statutes of Nice, see "Statute et privilegia civitatis Niciae", ed. Karl Albert (Monumenta Historiae Patriae, Leges Municipales, i, Turin, 1838), colt 61. (55) Statuts municipaux de Marseille, ed. and trans. Pernoud, bk v, ch. 25, p. 178. (56) A.D.B.R., IIIB 37, fos. [280.sub.r]-[282.sub.v], 14 July 1339. (57) The trials for these years are found in A.D.B.R., IIIB 33-66. (58) By the thirteenth century, Roman lawcourts in Marseille (and elsewhere) had come to recognize these drafts as legally binding in most circumstances: see the discussion in Business Contracts of Medieval Provence: Selected "Notulae" from the Cartulary of Giraud Amalric of Marseilles, 1248, ed. John Pryor (Toronto, 1981). (59) Bound registers containing dozens or hundreds of such acts. (60) A lengthy discussion of peace acts can be found in Kuehn, Law, Family, and Women. See also Petit-Dutaillis, Documents nouveaux sur les moeurs populaires, esp. pp. 54-88; Becker, "Changing Patterns of Violence and Justice in Fourteenth- and Fifteenth-Century Florence", esp. pp. 282-5; Wilson, Feuding, Conflict and Banditry in Nineteenth-Century Corsica, ch. 9, "Conciliation and Peacemaking"; Thompson, Revival Preachers and Politics in Thirteenth-Century Italy, pp. 136-78. (61) For an overview of the problem of survival, see Louis Stouff, "Les registres de notaires d'Arles (debut [XIV.sup.e] siecle - 1460): quelques problemes poses par l'utilisation des archives notariales", Provence historique, xxv (1975), pp. 307-10. The figure of one in fifteen is based on my own calculations for Marseille: the average year between 1337 and 1362 was covered by slightly more than two notarial casebooks, and a surviving document reveals that thirty or more notaries were licensed to practice in any given year: A.M., FF 166, fos. [6.sup.v]-[11.sup.v], Autumn 1350. (62) A.M., II 42, fo. [60.sup.v.], 10 Apr. 1349. (63) This did not, I think, automatically prevent the inquisition from proceeding with other charges, such as bearing arms. (64) A.D.B.R., 381E 79, fos. [46.sup.v]-[47.sup.r], 9 June 1353. (65) For a discussion of arguments such as this, see Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and their Tellers in Sixteenth-Century France (Stanford, 1987). (66) A.D.B.R., 381E 384, fos. [19.sup.v]-[21.sup.r], 25 Apr. 1337. (67) A.M., 1 II 44, fos. [60.sup.r]-[61.sup.v], 10 Apr. 1349. (68) A.D.B.R., 381E 79, fo. [125.sup.v], 8 Dec. 1353. (69) A.D.B.R., 355E 290, fos. [20.sup.r]-[21.sup.r], 4 Apr. 1355. (70) A.D.B.R., IIIB 52, fos. [12.sup.r]-[20.sup.v], 2 Sept. 1353. (71) Johan's complaint was not uncommon; we find similar accusations lodged in two other cases: A.M., FF 518, fos. [106.sup.r]-[107.sup.v], 14 Nov. 1340; A.M., FF 520, fos. [88.sup.r]-[102.sup.v], 11 July 1342. (72) A.D.B.R., IIIB 64, fo. [73.sup.r], 27 Nov. 1362. (73) A.D.B.R., IIIB 50, fos. [196.sup.r]-[203.sup.v], 12 Feb. 1353. (74) The involvement of wives in feuding, either indirectly through goading their male relatives to take revenge, or directly in vengeance itself, is common in societies that practice the feud: see, for example, Boehm, Blood Revenge, pp. 55-6; Miller, Bloodtaking and Peacemaking, pp. 212-14; Wilson, Feuding, Conflict and Banditry in Nineteenth-Century Corsica, pp. 220-1. (75) Notably the case of the murder of Uguo Robert; see n. 34 above. (76) For violence among the nobility, see Daniel Lord Smail, "Telling Tales in Angevin Courts", French Hist. Studies, xx (1997-8, forthcoming). (77) A.D.B.R., IIIB 822, fos. [84.sup.r]-[85.sup.r], 15 Dec. 1357. (78) Ibid., fos. [25.sup.r]-[35.sup.v] 18 Sept. 1357. (79) A.D.B.R., IIIB 811, fos. [3.sup.r]-[13.sup.r] 26 Nov. 1351. (80) Ibid., fo. [3.sup.r] (81) A.M., BB 21, fo. [102.sup.v], 18 Feb. 1350. (82) A.M., 1 II 44, fos. [60.sup.r]-[61.sup.v], 10 Apr. 13 (83) A.D.B.R., IIB 808, fos. [184.sup.r]-[210.sup.r], 29 Oct. 1342. (84) Ibid., fos. [193.sup.r]-[205.sup.v]. (85) Ibid fos. [197.sup.r]-[198.sup.r]. (86) Ibid, fo. [198.sup.v.]. (87) Ibid., fos. [198.sup.r]-[200.sup.r] (88) Ibid., loose leaf inserted between fos. 186 and 187. These titles are too long to transcribe in full. (89) It is significant that one of these three, his neighbour Alasacia Viola, was a woman, for women were commonly understood by the courts to have a sound grasp of neighbourhood reputations and frequently appeared as character witnesses in Marseille. (90) A.D.B.R., IIIB 808, fo. [210.sup.r]: Sopita est causa per summam. (91) Ibid, fos. [32.sup.r]-[65.sup.r], 5 Mar. 1342; the case is entitled Causa appellation is Juliani Marqueti, catalani peysonerii de Massilie contra curia. (92) Ibid., fo. [62.sup.r]. (93) Ibid., fo. [62.sup.r]. The phrase used to describe Jacme's associates is "attinentes dicti Jacobi viz. frater suus qui tune fun' et erat presens et alu plures agnati cognati seu affines et vicini et amici Jacobi Guillelmi supradicti . . " (94) Costs could vary considerably, depending on the quantity of written instruments needed and the salaries for lawyers and assistants. For examples, see A.D.B.R., IIIB 822, fo. [75.sup.v], 24 Nov. 1357 (6 pounds); IIIB 816, fo.[67.sup.r], 17 June 1353 (30 florins); IIIB 811, fo. [173.sup.v], 11 Feb. 1352 (42 florins). (95) Chiffoleau, Justices du pape, p. 160; Richard L. Kagan, "A Golden Age of Litigation: Castile, 1500-1700", in Bossy (ed.), Disputes and Settlements; Kuehn, Law, Family, and Women, pp. 80-2.
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|Author:||Smail, Daniel Lord|
|Publication:||Past & Present|
|Date:||May 1, 1996|
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