violence in middle ages

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The Past and Present Society

Common Violence: Vengeance and Inquisition in Fourteenth-Century MarseilleAuthor(s): Daniel Lord SmailSource: Past & Present, No. 151 (May, 1996), pp. 28-59Published by: Oxford University Press on behalf of The Past and Present Society

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COMMON VIOLENCE: VENGEANCE ANDINQUISITION IN FOURTEENTH-

CENTURY MARSEILLE*

Medieval violence has a bad reputation. In the words of a studentessayist, "Mideval [sic] people were violent. Murder during thisperiod was nothing. Everybody killed someone''.l Yet howevermuch we might object to this sweeping generalization, the senti-ment is not anachronistic. Violence was condemned as harshly inthe Middle Ages as it is today. Consider the diatribe of the earlyeleventh-century bishop Burchard of Worms:

Homicides take place almost daily among the family of St. Peter, as ifthey were wild beasts. The members of the family rage against each otheras if they were insane and kill each other for nothing . . . In the courseof one year thirty-five serfs of St. Peter belonging to the church of Wormshave been murdered without provocation.2

This is violence without reason or justification, comprehensibleonly if viewed as insanity.

Burchard's characterization of violence as a crime withoutreason was a little disingenuous, however. Violence was oftenlinked to vengeance in tne Middle Ages, and vengeance wassomething 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 hehad seduced and abducted came to the defence of her honour

* I owe thanks to many friends and colleagues for reading and discussing drafts ofthis paper, including Thomas A. Green, Raymond Grew, Sarah Harrison, DianeOwen Hughes, Ellen Poteet, Kathleen M. M. Smail and Raymond Van Dam.

1Taken from a collection of quotes compiled from student essays by a professorof 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. LudwigWieland (Monumenta Germaniae Historica, Leges in Quart., i, Hanover, 1893),p. 643, trans. Oliver J. Thatcher and Edgar Holmes McNeal, A Source Book forMediaeval History (New York, 1905), p. 559. The passage goes on to prescribe thepunishment for homicide (whipping, shaving of the head and branding) and continueswith lengthy provisions intended to hinder the spread of a dispute between the kinof the murderer and of the victim.


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29COMMON VIOLENCE

and their own, for that matter.3 The need for vengeance was asancient as the lex talionis; in theology and Christology, the theme

of God's vengeance had only recently, in the tenth and eleventhcenturies, given way to that of his mercy and suffering.4 Men ofthe church were perfectly aware of the social pressures thatfostered vengeance in the secular world. The mendicant orderscould not have emerged as Europe's foremost peacemakerswithout this understanding.5

This being so, we should understand the rhetoric for what itwas and see vengeance as medieval observers would have done,as a practice worthy of condemnation that none the less had deeproots in society and served specific ends. For vengeance doesmake sense: order arises from predictability of behaviour, andvengeance carries an aura of inevitability. This, at any rate, iswhat modern anthropologists have been arguing for some time.As students of the stateless societies of north Africa and thecircum-Mediterranean region began to observe in the 1940s andl950s, the feud and its attendant institutions of peacemakingcomprised a legal system that offered a basis for political order.6

3 Burchard himself acknowledged that in certain circumstances members of "thefamily of St. Peter" (that is to say, the residents of his diocese) were free to pursuevengeance against any foreigner who had murdered one of their number. For a similarargument regarding Gregory of Tours's equivocal stance on the blood-feud in Frankishsociety, see J. M. Wallace-Hadrill, The Long-Haired Kings and Other Studies inFrankish History (New York, 1962), p. 128.

4 The theme of God's vengeance in the early Middle Ages is one that goes wellbeyond 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,xlii (1986), p. 201; Jon N. Sutherland, "The Idea of Revenge in Lombard Society inthe Eighth and Tenth Centuries: The Cases of Paul the Deacon and Liudprand ofCremona", 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, "Letheme de la vengeance au Moyen Age", in La vengeance: ettudesd'etthnologie, d'histoire,et de philosophie, 4 vols. (Paris, 1981-6), iv, Gerard Courtois (ed.), La vengeance dansla pensete occidentale; Lester K. Little, Benedictine Maledictions: Liturgica! Cursing inRomanesque 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, RevivalPreachers 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 EarlyThirteenth Century (Philadelphia, 1992).

6 The classic account is E. E. Evans-Pritchard, The Nuer: A Description of the Modesof Livelihood and Political Institutions of a Nilotic People (Oxford, 1947). Evans-Pritchard's theories on the feud and its constraints were subsequently challenged byJacob Black-Michaud, Cohesive Force: Feud in the Mediterranean and the Middle East(Oxford, 1975). See also Philip S. Khoury and Joseph Kostiner (eds.), Tribes andState Formation in the Middle East (Berkeley, 1990). In recent decades, anthropologistshave turned away from the study of the feud, with the exception of Christopher

(cont. on p. 30)


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30 PAST AND PRESENT NUMBER 151

Medieval historians, of course, had long been interested in bothfeuding and peacemaking,7 and the arguments of E. E. Evans-Pritchard and others concerning the feud were not slow to crossfrom anthropology to history. A major conduit was an articlepublished by Max Gluckman in Past and Present in 1955 called"The Peace in the Feud", which developed Evans-Pritchard'sargument that the feud, as it expanded through the grades ofkinship, inevitably compromised people with a foot in bothcamps; these people were then activated to quell the discord.8J. M. Wallace-Hadrill cited Gluckman approvingly in his ownwork on the blood-feud in the Merovingian period.9 The histor-ical literature on this and related subjects has grown apace sincethe 1960s, offering a way to study order not from the top down,but from the bottom up.10(n. 6 cont.)

Boehm, Blood Revenge: The Anthropology of Feuding in Montenegro and other TribalSocieties (Lawrence, 1984). The study of banditry and raiding, both of which can beacts of revenge, has been more vigorous, inspired in part by E. J. Hobsbawm, SocialBandits and Primitive Rebels: Studies in Archaic Forms of Social Movement in the 19thand 20th Centuries (Glencoe, Ill., l9S9): see, for example, Michael Herzfeld, "Prideand 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 andother 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 theTime of Edward I (Cambridge, 1896); F. W. Maitland, "The Laws of Wales. TheKindred 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 mzurs populaires et le droit de vengeance dans lesPays-Bas au XVe siecle (Paris, 1908), which includes commentary and a brief introduc-tion 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 TeutonicRaces (New York, 1974; first pubd Cambridge, 1913); Gabriel Maugain, Moeursitaliennes de la Renaissance: la vengeance (Paris, 1935); Julius Goebel, Felony andMisdemeanor: A Study in the History of Criminal Law (Philadelphia, 1976; first pubdNew York, 1937); Otto Brunner, "Landn' and Lordship: Structures of Governance inMedieval Austria, trans. Howard Kaminsky and James Van Horn Melton (Phil-adelphia, 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.

9Wallace-Hadrill, Long-Haired Kings. For some account of the influence ofGluckman's article on subsequent social history, see White, "Feuding and Peace-

Making in the Touraine", p. 258 n. 252.'? White, "Feuding and Peacemaking in the Touraine", includes a thorough, up-to-date bibliographical survey of recent work; the most recent studies of feuding andvengeance 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 theRenaissance (Baltimore, 1993). For a more general discussion of conflict, together

(cont. on p. 31)


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31COMMON VIOLENCE

To describe vengeance and peacemaking as components of alogical and rational system, however, is to suggest that the prac-

tices can be isolated from other legal and judicial currents inmedieval society. This is a very dubious proposition. In recentyears, for example, legal anthropologists have argued that therewas a good deal of cross-fertilization between native or local legalsystems in Africa and Latin America and those imported byEuropean colonists.ll Much the same holds true for Europe itself,where centralized systems of law emerged at a more leisurelypace. This being so, the most compelling history of vengeance

and peacemaking lies not just in describing these practices aselements of an independent and rational system, but also in seeinghow, over the centuries, they interacted with (or were circum-scribed by) the developing legal systems of kingdoms andnation-states. 12

The complex legal culture of the city of Marseille in the laterMiddle Ages offers profound insights into these processes of legalexchange and amalgamation. Italianate in its commercial andlegal culture, French in its family structures and destiny,Mediterranean in the breadth of its trade, the great ProvenSalport provides numerous grounds for comparisons. Blessed withone of the earliest and richest runs of notarial documentation ofany French locale, blessed equally with rich judicial archives, thecity offers splendid resources to the historian. Marseille's legalculture, moreover, is made all the more compelling by the city's(n. 10 cont. )

with a bibliography and a programmatic statement regarding conflict as order ratherthan 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 andSocial Control: Crime and Justice in the Ramsey Abbey Villages", Mediaeval Studies,xxxix (1977), pp. 402-23; John Bossy (ed.), Disputes and Settlements: Lazv and HumanRelations in the West (Cambridge, 1983); Wendy Davies and Paul Fouracre (eds.),The Settlement of Disputes in Early Medieval Europe (Cambridge, 1986).

11SallyFalk Moore, Social Facts and Fabrications: "Customary" Lazu 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' NativeCourts", Law and Society Rev., xxvi (1992), pp. ll-46; Laura Nader, HarmonyIdeology: 3tustice and Control in a Zapotec Mountain Village (Stanford, 1990); JuneStarr and Jane F. Collier (eds.), History and Power in the Study of Lazv: New Directionsin Legal Anthropology (Ithaca, 1989); Peter Just, "History, Power, Ideology andCulture: Current Directions in the Anthropology of Law", Lazv and Society Rev.,xxvi (1992), pp. 373-411.

12 See Osvaldo Raggio, Faide e parentele: lo stato genovese visto dalla Fontanab?lona(Turin, 1990); Stephen Wilson, Feuding, Conflict and Banditry in Nineteenth-CenturyCorsica (Cambridge, 1988).


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32 NUMBER 151PAST AND PRESENT

unusual political circumstances. A fiercely independent communefor much of the first half of the thirteenth century, it had fallen

in 1252 to Charles of Anjou, king and founder of the expansionistAngevin dynasty of Naples and count of Provence by virtue of astrategic marriage.l3 Yet in Charles's own lifetime, the Angevindynasty - hobbled by the revolt of Sicily in 1282 and underminedby the general decay of Mediterranean trade that followed uponthe heels of the Muslim reconquest of the Levant was fallingswiftly from the heights to which it had once aspired. Preoccupiedwith its own intrigues, the crown had little energy to spare for

the governing of Marseille. By the fourteenth century the cityhad begun to drift out of the orbit of Naples, quietly seizing theindependence it had tasted a century before, and thus followinga trajectory at odds with the processes of centralization morecommon in the later Middle Ages.l4

One result of this trend is that by the mid-fourteenth century,the city's courts, all of them staSed by judges and functionariesnominated by the Angevin crown, lacked the power to back theirauthority. Noble factions emerged, at least one of which wasconsidered by an observer to be more powerful than the crownitself.l5 Given these circumstances, the Angevin-run court ofinquisition, primarily responsible for criminal matters, was (orbecame) reluctant to prosecute murder and very serious acts ofviolence. Instead, judges built existing habits of settlement andpeacemaking into their own legal edifice, allowing some measureof authority over homicides to devolve on to kinfolk and friendsof the murderer and of the victim. They did not invariably do

so; evidence reveals that only those assailants with access topowerful social networks or kin groups could expect to benefitfrom the immunity from prosecution conferred by the threat ofthe feud or of factional retaliation. The prosecution of violenceshort of murder reveals a noteworthy battle for rhetorical controlthat pitted defendants eager to display their social connectionsagainst judges interested in counting blows and not much else.

13 For the political history of the commune of Marseille up to the advent of Angevinrule in 1264, see V.-L. Bourrilly, Essai sur l'histoire politique de Marseille des originesd 1264 (Aix-en-Provence, 1925).

14 On this, see Edouard Baratier, Histoire de Marseille (Toulouse, 1973); GeorgesLesage, Marseille angevine (Paris, 1950).

lSSee Archives Departementales des Bouches-du-Rhone, Marseille (hereafterA.D.B.R.), IIIB 820, fo. 161V) 12 July 1356. This and subsequent citations of courtcases give the date on which the case was opened.


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34 PASTAND PRESENTNUMBER151

fourteenth century, in concert with transformations inRoman-

canonproceedings and the law of proof then sweepingover the

Mediterraneanregion,20 Marseille had developedwhat the sources

calla curia inquisitionis. This "court of inquisition" washeaded

bythe palace judge, assisted by an official known as the"vicar"

orviguier (vicarius), the chief Angevin representative inthe city.

Theviguier himself, or someone acting in his name, announced

thesentences in public parlements, held five or six timesa year

ina square at the centre of the city. The inquisitorialmode

allowedfor a more active court, one more willing to viewlaw-

breaking as a crimeagainst the state, than had hitherto been the

case.2lThe essence of the inquisitorial method was that once apotential crime had come to its attention, the court was able,

on

itsown authority, to initiate an accusation and assemble witnesses.

Ifthe two witnesses necessary for a conviction in Roman-canon

law were lacking, the court could use torture to extracta

confession from the suspect.Most of the sentences passed down by the court of inquisition

in Marseille were fines, even if we must acknowledge thatother

forms of punishment usually do not show up in records devotedalmost exclusively to pecuniary concerns. This much is indicated

by a single register of fines paid by criminal defendants thathas

survived from December 1330 to the end of November1331.22

(Table.) Each of the entries gives a brief description infive or

ten lines of the main features of the sentence. Given herein full

20 John A. Langbein, Torture and the Law of Proof: Europe andEngland in the Ancien

Re'gime (Chicago, 1977).21 On criminal procedure in Roman law, see A. Esmein, Histoire de la proce'dure

criminelle en France, et spetcialement de la proce'dure inquisitoire,depais le XIIIe siecle

jusqu'a nos jours (Paris, 1882); John Langbein, Prosecuting Crimein the Renaissance:

England, Germany, France (Cambridge, Mass., 1974); Sarah RubinBlanshei, "Crime

and Law Enforcement in Medieval Bologna", il Social Hist.,xvi (1982), pp. 121-38;

Jacques Chiffoleau, Les justices du pape: de'linquance etcriminalite' dans la region

d'Avignon au quatorzieme siecle (Paris, 1984); Laura Ikins Stern,The Criminal Lazu

System of Medieval and Renaissance Florence (Baltimore, 1994);John K. Brackett,

Criminal ffustice and Crime in Late Renaissance Florence,1537-1609 (Cambridge, 1992).

22 A.D.B.R., B 1940, fos. 74r-139V. The list was itself part of a yearlycompilation

of royal revenues and financial activity in the city made bythe 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, sincethe register includes

receipts for fines levied in past years (some defendants hadto defer payment on

account of poverty). We can reasonably assume that the extrareceipts for such fines

were balanced by those levied in 1331 that themselves remainedunpaid.


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COMMON VIOLENCE 35

TABLEPROFILE OF CRIMINAL PROSECUTIONS IN MARSEILLE 1330-1331*

Type of Incident No. %Violence or threats with weapons 289 58.7Insults 108 22.0Verbal threats and other confrontations 24 4.9Theft 22 4.5Civil infractions 20 4.1Bearing illegal arms 17 3.5Unidentifiable 12 2.4

Total 492 100. 1

*Source: Archives Departementales des Bouches-du-Rhone, Marseille, B 1940, fos.76r-139r. The figures in the third column have been rounded up to the next per cent.

is a typical sentence, from 22 February 1331: "On the same day:concerning Guilhem Alexi, condemned to pay a fine of 20 shillingsby the said lord viguier on the year and day above, since, withmalice and furious at heart, he threw Raymon de Tholosa to theground on a public street".23

The register contains 492 entries; of these, 289 were for crimesof violence or the threat of violence of one sort or another(including two rapes). Most of these involved relatively minorwounds, or even nothing more than the drawing of a knife; fineswere levied averaging a little more than 30 shillings, equivalentto eight days' wages for an agricultural labourer. Many of theremaining fines were imposed for acts of a similarly confronta-tional 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 the492 entries. The remaining entries concern non-confrontationalcriminal acts, including 22 thefts and 20 civil infractions, such asselling flour illegally or going out at night without a lantern.24Sexual delicts and blasphemy are utterly absent from the list.

This profile, thin in the secret crimes of the household and inthe sphere of morals, is at odds with the criminal profiles of otherlate medieval cities drawn from similar sources. In nearbyAvignon, as in Paris, courts levied numerous fines for blasphemy,sexual delicts and thefts.25 The same holds true for Florence in

23 A.D.B.R., B 1940, fo. 87r, 22 Feb. 1331.24 The crime in the remaining twelve cases cannot be identified.25 Chiffoleau, ffustices du pape; Bronislaw Geremek, The Margins of Society in Late

Medieval Paris, trans. Jean Birrell (Cambridge, 1987).


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the fourteenth and fifteenth centuries.26 Marseille's inquisition,by comparison, was far more interested in prosecuting publicconfrontations.

Logically, this kind of profile would emerge if the inquisitionprosecuted only those cases in which malefactors had been cap-tured in flagrantedelicto.To capture malefactors, the court ofinquisition had developed a rudimentary police force led by thesub-viguierand sometimes by the viguier himself.27 Transcriptsof judicial inquisitions found in appeals court registers reveal thatin cases involving violence, the sub-viguier and his familia often

arrived while a fight was still under way, usually called to thescene by the neighbours. As a result, an official of the court wasable to seize the malefactors while the blood was still fresh onthe knife or the insult still lingering in the ears of the witnesses.The justice that resulted from this was summary: defendants inthe cases I have read were never allowed to present a defence.The defence - this seems unique to Marseille was reservedfor the appeal.

In no inquisition transcript from Marseille is there any indica-tion that the court proceeded against criminal defendants merelyon the basis of a report or a rumour, as courts of inquisition oftendid in other cities. Several victims of theft, vandalism andthreatening language were forced to initiate their own accusationsand assemble their own proofs.28 This preference for cases wherethe malefactors were captured inflagrantereveals an inquisitionunwilling to commit time and resources to the prosecution ofcrime, unwilling to pursue cases involving secretive behaviour or

26 See the discussion in Stern, Criminal Law System of Medieval and RenaissanceFlorence, 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 appre-hending malefactors is evident everywhere in the appeals against criminal sentencesfound in the appellate court transcripts, A.D.B.R., IIIB 800 onwards. These twoofficials were also empowered to enlist ordinary citizens as deputies in moments ofcrisis; see, for example, A.D.B.R., IIIB 819, fo. 4rnJune 1355 (?: month illegible),testimony of Guilhem de Serviers. This entire register is devoted to several appellatehearings in the cases of men accused of involvement in a street fight. One of theircounter-arguments was that the city's viguier had in effect authorized the men tofollow him with any arms they could find in an attempt to apprehend a murdererand prevent his death at the hands of his enemies. On inquisitorial procedures, seeBrackett, Criminal 3tusticeand Crime in Late RenaissanceFlorence, pp. 57-68.

28 For several examples, see A.D.B.R., IIIB 41, fos. 224r-234r, 25 Aug. 1340(vandalism of a vineyard); ibid., fos. 150V-lSlr, 2 Aug. 1340, and IIIB 66, fos. 14r-28r,24 Mar. 1362 (theft); IIIB 62, fos. 183r-184r, 27 May 1360, and Archives Municipalesde la Ville de Marseille (hereafter A.M.), FF 519, fo. 61r-V) 9 Aug. 1341 (threats).


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37COMMON VIOLENCE

states of mind. This, in other words, was an inquisition that dealtin open-and-shut cases, where the facts were obvious to all;

appeals may have been limited in number precisely because theweight of incriminating evidence was so great. This reluctance totackle more difficult cases is one indication of the court's lackof power.

What is missing from the profile of fines assessed by Marseille'sinquisition, therefore, is just as informative as what is present.This is especially true when we consider another class of criminalbehaviour 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 trulydebilitating wounds such as amputations. Most surprising, thelist includes no fines paid for homicides. In the entire registeronly one reference to a homicide can be found: during a streetbattle between Johanet Guis and Durant de Batuto, Durant wasgrievously wounded; he died a short while later. A terse accountof the incident was given to explain why a 6-pound fine29 hadbeen assessed against eleven-year-old Guilhem Guis, the youngerbrother of the assailant. The lad had emerged from his father'shouse towards the end of the battle; knife drawn, he had chasedthe wounded man down the street.30 His brother, the actualassailant, does not appear in the record.

Why this silence regarding homicide? Jacques Chiffoleau,observing a similar phenomenon in papal Avignon in the four-teenth century, has argued that murderers were punished corpor-ally; and corporal punishments do not find their way into financial

records. But Chiffoleau also observes that murderers usually fledthe city before they could be captured;3l moreover, the Avignoncourt did not always proceed against murderers and other violentoffenders where proof of a settlement was offered.32 Historiansand anthropologists of law considering similar forms of judicialrestraint have argued that a judicial decision is an artificial ending

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 descomtes de Provence, XIIe-XVe siecles (Paris, 1956).

30 A.D.B.R., B 1940, fo. 76r-V) 6 Dec. 1330. If his brother Johanet was fined forthe homicide, either the fine was still unpaid or an appeal had been made to ahigher court.

31 Chiffoleau, 3tustices du pape, p. 148.32 Ibid., pp. 222-3; see also Stern, Criminal Law System of Medieval and Renaissance

Florence, pp. 27-8.


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that does not necessarily resolve the tensions in a dispute.33Murder is the oSence most likely to generate bad blood betweenrival families or groups. In the uncertain political climate of mid-fourteenth-century Marseille, the court of inquisition was moreinterested in establishing peace than in trying to stamp its tenuousauthority on a potentially belligerent and independent-mindedpopulation.

As it happens, it is not entirely correct to say that the court ofinquisition did not prosecute homicides. Records reveal that thecourt could pursue various lesser charges should it choose to

move against murderers. The possibilities included infractionslike bearing illegal arms, congregating in large groups, and goingabout the city by night. To take an example, fines of up to 100shillings were assessed against several agricultural labourers andcaulkers who had participated in a murder on 20 May 1342.34 Inaddition, murderers who fled the city could be accused of thecrime and then, if they failed to respond to a series of summonses,be charged for contumacy. In one particularly well-documentedcase involving a member of the nobility, the squire Amiel Bonafoshad participated in the murder of his bitter enemy, Peire deJerusalem, in May 1356.35 Following the murder, Amiel hid inthe house of his infirm father; several nights later, he fled thecity on horseback with a companion, seeking refuge in the coun-tryside.36 A trial was initiated by the dead man's uncle,37 andwhen Amiel failed to answer the summons, he was sentenced topay a staggering fine of 2,000 pounds simply for contumacy.38

33

Marvin B. Becker, "Changing Patterns of Violence and Justice in Fourteenth-and Fifteenth-Century Florence", Comp. Studies in Society and Hist., xviii (1976),p. 282. See also the useful interdisciplinary discussion in Kuehn, Lazv, Family, andWomen,pp. 19-21.

34 A.D.B.R., IIIB 808, fos. 123r-159r, 23 July 1342, and see fo. 137r for a descriptionof the statutes and proclamations ( preconisationes)that the men offended against. Theaccusation goes on to relate that the men had gathered at a friend's house intendingto 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 labourersand 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. 127V-131v. This seriesof murders bears some of the characteristics of a feud (although one group seems tobe doing all the killing), but the judge had little interest in the subject and neverprobed into the case's antecedents, leaving us in the dark.

35 A.D.B.R., IIIB 820, fos. 8r-103V. 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. 8V.38 Ibid, fo. 8r-


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39COMMON VIOLENCE

His allies, the Martin brothers, fared worse: each was fined 4,000pounds, and the prime instigator, Peire Martin, was fined an

additional 3,000.39 To collect such fines, the court could andsometimes did seize the exiled man's property.40 Technicallyspeaking, the fine was levied for a violation of procedure (con-tumacy), not for murder.

Peacebreaking was a third category under which violentoSenders could be prosecuted. It was clearly understood by allconcerned that peacebreaking was a heinous crime more ser-ious, in fact, than the catalysing offence.4l From the transcripts

of an inquisition into a small war between two elite factions thattook place on or about 22 July 1351, we learn that fines of up to200 pounds were levied against the participants for breaking anexisting peace.42 As Thomas Kuehn has argued with regard toacts of arbitration more generally, this strategy of prosecutionworked because instruments of peace were civil contracts: peace-breaking could be prosecuted not as murder, but as breach ofcontract.43

III

Yet these were indirect ways of prosecuting acts of grievousviolence. Instead of forceful resolution, we find a discretion con-sistent with the inquisition's reluctance to prosecute criminals not

39 Ibid, fos. lr-6V.40 That is, if the exiled man had any property. This was a delicate point. In the

case of Amiel Bonafos, the procurer declared that Amiel was in patria potestas: hisfather was his legal administrator (ibid., fo. 8V). Technically, then, Amiel possessedno property in his own name. A Marseille statute (De parentibus pro filiis,et e converso,non multandis) makes it clear that a father could be held liable for his son's crimesbut only after the father's own death or entry into a monastery: Statuts municipauxde Marseille, ed. and trans. Pernoud, bk v, ch. 28, p. 179. I think it unlikely thatMarseille's court had the institutional memory to carry out this threat, assuming thefather 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. lfr-101V) appeal heard 12 Dec. 1351. Although therecord of this particular case is fragmentary and does not explain the reason for thefine, we know from another case that a peace had been set up between the rivalparties on 24 March 1350, and the fines probably arose as a result of this peace havingbeen broken. Extant peace acts usually stipulate a 100-pound fine in the event of atransgression. The small war of 1351 was itself followed immediately by anotherpeace dated 26 July 1351. Copies of both acts of peace are included in the appealarising from the murder of Peire de Jerusalem; for the transcript (Tenor instrumentorumproductorum super pace), see A.D.B.R., IIIB 820, fos. 16r-18V) 7 July 1356.

43 Kuehn, Law, Family, and Women, p. 69.


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arrested in ffagrante. It was a discretion that does not seem inkeeping with its age, to judge by the violent retributions describedin the statute-books of some thirteenth- and fourteenth-centuryItalian and ProvenSal communes. Men who murder shall bedecapitated, declared a Veronese statute, and women burnt todeath.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 mitigatingcircumstances, here as elsewhere in Europe.47 Several statutes list

self-defence as a reasonable excuse, but the law could be mitigatedin another way. In the civic world of Mediterranean Europe, theauthority of any given commune extended only so far, and thelegal geography of the region consisted of an untidy patchworkof uncoordinated jurisdictions. Each commune's jurisdiction wasactivated only when officers of the peace were able to seize themurderer. Beyond the borders of the commune lay the shadowyworld of exile and banishment.48 Whether the police force couldseize oSenders before they reached this world depended on itsefficiency and, for that matter, on the eagerness of the communeto get involved. We may assume that communes were eager toexercise jurisdiction the threats directed at murderers giveevery indication that homicide was perceived as a crime againstthe whole commune, not just the family of the victim but wasthis really the case? In Marseille, as we shall see, it was not.Murderers were frequently allowed to escape; even when theywere caught, their subsequent incarceration, remarkably, wassometimes treated as if it were the equivalent of exile or sanctuary.

To understand why, it is important to realize that exile andsanctuary, in Italy as in southern France, did not mean the endof some sort of legal jurisdiction over the case. Instead, jurisdic-tion over the absent malefactor was in theory transferred from

44 Gli statuti Veronesidel 1276, ed. Gino Sandri (Venice, 1940), p. 410.45 Gli antichi statuti di Apricale (1267-1430), ed. Girolamo Rossi (Bordighera,

1986), p. 21.46 Corpusstatutorum comunisCunei, 1380, ed. Piero Camilla (Cuneo, [1970]), p. 220.47 Thomas A. Green, Verdict according to Conscience: Perspectiveson the English

Criminal Trial ry, 1200-1800 (Chicago, 1985); Douglas Hay et al., Albion's FatalTree: Crime and Society in Eighteenth-Century England (New York, 1975).

48 On exile, see Randolph Starn, Contrary Commonwealth: The Theme of Exile inMedieval and Renaissance Italy (Berkeley, 1982); on banditry, see Raggio, Faide eparentele, esp. ch. 8.


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41COMMON VIOLENCE

the commune to the kin of the victim.49 If a murderer could notbe seized within the jurisdiction of Cuneo, for example, 100

pounds was to be levied from his estate and he was to be out-lawed at least, until peace was made with the kin of thevictim.50 The same principle also held for cases other thanmurder:

It is declared that if anyone from Cuneo or its jurisdiction has soughtexile or has been exiled for any crime, he will not be allowed to returnnor 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.5l

A similar passage is found in the statutes of Acqui,52 andApricale's state more tersely that the murderer will be perpetuallyexiled unless the heirs of the victim permit his return.53 Thestatutes of both Verona and Nice indicate that exile was a commonoption and that a peace with the kin was a part of the ensuingjudicial process.54 With any luck, an exiled man could be back intown within a few years of a murder, restored in both reputationand wealth and sometimes even more. Five years after hisinvolvement in the murder of Peire de Jerusalem, not only hadAmiel Bonafos returned to his native city, he had also beenappointed to one of the highest council offices in Marseille, thatof syndic.

In a very curious way, the judicial competencies of court andkin in Italy and southern France hinged not on abstract legalprinciples but rather on the location of the murderer. This wasa product of a complex set of circumstances involving the natureof the police force, the quality of the murderer's networks ofsupport outside the city and the nature of the crime. The harsh-ness of statutory law, therefore, could be mitigated whenever themurderer escaped or was allowed to escape. In such cases, theauthority of the commune derogated in favour of kin. Withoutclear evidence that executions were practised systematically in

49 See, for example, Thompson, Revival Preachers and Politics in Thirteenth-CenturyItaly, pp. 143-5; he bases his arguments on statutory law.

50Corpus statutorum comunis Cunei, 1380, ed. Camilla, p. 221.51Ibid.52Statuta vetera civitatis Aquis, ed. Giuseppe Fornarese (Alessandria, 1905), p. 25.53Antichi statuti de Apricale (1267-1340), ed. Rossi, p. 21.54Statuti Veronesi del 1276, ed. Sandri, pp. 410-15; for the statutes of Nice, see

"Statuta et privilegia civitatis Niciae", ed. Karl Albert (Monumenta Historiae Patriae,Leges Municipales, i, Turin, 1838), col. 61.


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specific medieval communes, we cannot assume a priori that thelaw was always carried out with the promised harshness.

Marseille's law concerning homicide and exile mirrors those ofthe Italian communes. Redacted in the early thirteenth century,during the city's drive for communal independence, Marseille'sstatute-book was based on a twelfth-century model borrowedfrom Pisa. The peace-treaty of 1252, in turn, absorbed the bookof statutes virtually intact. Because the council of Marseille hadonly limited legislative powers after 1252, and because theAngevins themselves were too preoccupied to attempt judicial

reforms, the statutes underwent no changes in the century thatfollowed; compared with the statutes of other fourteenth-centurycommunes, which periodically underwent revision and concord-ance, those of mid-fourteenth-century Marseille were manifestlyout of date.

The statute that governed homicides and other assaultsresulting in death, Qualiter homicidia puniri debeant ("HowHomicides 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 ofthis statute we ordain . . . that if anyone shall have assaulted, or wounded,or mortally injured another person in Marseille or its territory . . . [and]if the man who did such things should have fled from Marseille . . . thecriminal will never, under any circumstances, be allowed or permitted toreturn to Marseille or its suburbs (suburbia) at any future time unless hewill have first made composition for the crime with four or five of theclosest relatives of the murdered or dead man, and unless, at the sametime, he, or another in his place, will have first paid the fine lelried againsthim for the act or crime by the rector or councillors or the commune ofMarseille . . .

. . . similarly, if the murderer shall be found or can be found anywherewithin Marseille or its territory, he will be taken by the rector or thecouncillors of Marseille, or by others acting for them, by force if necessary,and the rector and councillors will then do with him what they thinkought to be done (gue eis videbuntur facienda) . . .55

The text speaks of a public concern (Scjum rei publice intersitplurimum . . .), but the early origins of the statute are revealed inthe failure to define precisely what the commune could do to theperson of the captured murderer. The commune was evidentlyallowed to levy a fine a right, to judge by the register of finespaid, that does not seem to have been used often. The text ofthe statute, however, is dominated not by this matter, but ratherby how the rector and councillors should proceed once a murderer

55 Statuts municipauxde Marseille, ed. and trans. Pernoud, bk v, ch. 25, p. 178.


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43COMMON VIOLENCE

has exiled himself. The statute, moreover, is careful to spell outthe nature of composition and the grounds on which the exile

will be allowed to return, officially delegating a degree of powerover the criminal's fate to the four or five closest relativesmentioned in the statute.

Once the murderer had gone into exile, the system ofpeacemaking and arbitration came into play. There is plenty ofindirect evidence for this system in existing court cases fromfourteenth-century Marseille. In July 1339, for example, a disputebetween 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 thatan agreement had been reached: to continue the suit would havebeen to disrupt the fragile peace.56 Cases that ended in arbitrationare common enough in the records: many (or even most) accuser-initiated trials ended shortly after the reading of the accusation,and only 18 per cent of 564 palace-court trials over the periodbetween 1337 and 1362 included the testimony of even onewitness.57

As it happens, we have more authoritative evidence for peacesettlements from the notarial archives between 1337 and 1362:five notarized settlements for homicides and three further settle-ments for grievous wounds short of homicide. These legaldrafts,58 variously entitled instrumentum pacis, compositio, concordiaand faciendum pacis, can be found in some of the seventy notarialcasebooks59 extant in Marseille from the middle quarter of the

fourteenth century, alongside dotal acts, testaments, loans, inden-tures to apprenticeship and dozens of other contracts offered bythe Roman legal system of Mediterranean Europe. All eight peaceacts involve men and women of middling or low status: labourers,carpenters, butchers, bakers, furriers; notarial casebooks wereprobably considered too vulgar for the peace acts of the nobility.As with all notarized acts, peace acts follow standard legal formu-las that name the parties involved and define their subsequent

56 A.D.B.R., IIIB 37, fos. 280r-282V)14July 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 thediscussion in Business Contracts of Medieval Provence: Selected "Notulae" from theCartulary of Giraud Amalric of Marseilles, 1248, ed. John Pryor (Toronto, 1981).

59Bound registers containing dozens or hundreds of such acts.


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44 PASTAND PRESENTNUMBER151

legalresponsibilities.60 Since the extant casebooks representonly

afifteenth of the original total, it is clear that such settlements

weremore common than these numbers suggest: hadall such

casebookssurvived from the years 1337 to 1362 there should

havebeen around a thousand they would probablyhave

recordedas many as seventy-five settlements arising frommur-

dersover the entire period.6l The existence of the eight surviving

casesshows that peace settlements for some or most homicides

andfor a few grave injuries played a role of no small significance

inthe legal system of mid-fourteenth-century Marseille.

The typical peaceformula, significantly, included a clause

declaring that all court actions on behalf of the victim would bedropped. 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 proceedfur-

ther with the indictments made on these occasions by himself orby others.

Norwould 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] againstGuilhem 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 probablythe

major reason why no remits for homicide appear in the register

of receipts from the year 1331.63The 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 peaceand of the agency of

60 A lengthy discussion of peace acts can be found in Kuehn, Law,Family, and

Women. See also Petit-Dutaillis, Documentsnouveaux sur les mzurspopulaires, esp.

pp. 54-88; Becker, "Changing Patterns of Violence and Justicein Fourteenth- and

Fifteenth-Century Florence", esp. pp. 282-5; Wilson, Feuding,Conflictand 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, "Lesregistres de

notaires d'Arles (debut XIVe siecle- 1460): quelques problemesposes 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 between1337 and 1362 was covered by slightly more than two notarial

casebooks, and a

surviving document reveals that thirty or more notaries were licensedto practise in

any given year: A.M., FF 166, fos. 6V-llv) Autumn 1350.62 A M II 42, fo. 60V)10 Apr. 1349.63 This did not, I think, automatically prevent the inquisition from proceeding

with

other charges, such as bearing arms.


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45COMMON VIOLENCE

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 andcontumacious words against Antoni Bort. Antoni was so movedby wrath that he drew his sword and struck her on the head,killing her.64 The eSect of this argument was to treat her deathas the result of Antoni's disabling and blinding rage regrettable,but not homicidal.65 Following a very brief statement of who hadmurdered or wounded whom, the formula proceeds to a descrip-tion of the bad blood existing between the murderer (and some-

times his kinfolk) and the kin of the victim, between two andfour of whom are named. When Guilhem Garrigas killed UguoClalpin, he and his uncle Andrieu made peace with Uguo's twocousins, Johan Bernis and Johan Bonaut, with Johan's son Peire,and with two of the victim's maternal aunts (amicae), HugaRomea and Resens Berengiera.66 Similarly, the carpenter GuilhemBascul, who had killed Guilhem Turel, made peace with thebutcher Isnart Bayle, Laurens Gartin, and the rest of his victim'sfriends, relatives and affines.67 A peace is made and the kin ofthe victim are then sternly charged with the duty of keeping it;the force of these acts is generally directed against the victim'skin and not the murderer. Arbiters, where named, were typicallynoblemen or other members of the patriciate. For example, thetwo noblemen Montoliu de Montoliu and Aragon de Rabastenc,assisted by two men of common status, helped arrange a peacebetween the labourer Guilhem Johan and his kinsmen on the onehand, and the victim Peire Tallarone (whom Guilhem hadwounded on the arm) and Peire's kinsmen on the other.68 Insome cases, other noblemen, mendicant friars, or jurists madetheir presence felt as witnesses to the peace. The role of mendic-ants and other religious is especially noticeable in the five peaceacts arising from murders: all were redacted in the house of areligious order. The three woundings, by contrast, were settledin the notary's house or in houses belonging to one of the partiesinvolved.

64 A.D.B.R., 381E 79, fos. 46V-47r) 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. 19V-21r) 25 Apr. 1337.67 A.M., 1 II 44, fos. 601-61v, 10 Apr. 1349.68 A.D.B.R., 381E 79, fo. 125V) 8 Dec. 1353.


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46 NUMBER 15 1PAST AND PRESENT

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 anexchange of the kiss of peace was noted. No money compositionwas ever expressly mentioned, although we can assume that apayment often took place. The labourer Pons Gasin, killer ofAlasacia Borgona, concluded a peace with her brother and twosons; in a separate act made on the same day, the murderer gavethe 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 avoidfuture danger ( pro pacem habenda et futurum periculum ezvitanda),and the vineyard was clearly part of the settlement.69

An exiled murderer, of course, could not be present when asettlement was being arranged he only returned to approvethe pact and it was up to relatives and friends to arrange apeace. Notarized peace settlements do not describe this process,and we must turn to court records to see how it worked. Earlyin the year 1353, for example, Lois Orlet had cut off the lefthand of Johan Robert during a fight.70 On 2 September 1353,Johan brought Lois to court not to accuse him of the amputa-tion, but instead to complain about his failure to fulfil certainconditions of the peace accord that had terminated the dispute:the peace had included a requirement that Lois pay for themedical care of his victim.71 The testimony reveals that Lois hadsought sanctuary in the monastery of St Victor immediately fol-lowing the fight; the peace had been arranged by two city council-

lors, Guilhem Blanc and the nobleman Johan de Sant Jacme.Lois's unnamed wife was also involved in making peace; she hadsent medicine to the wounded man, and offered him 100 poundsby way of settlement.

Two cases of capital importance show that even when the courtseized the murderer before he could seek sanctuary or make hisescape from the city, it treated incarceration as exile. One casefrom the year 1362 reveals that the butcher Anhellon Fabre, a

man of some standing and good connections in the community,69 A.D.B.R., 355E 290, fos. 20r-2lr, 4 Apr. 1355.70 A.D.B.R., IIIB 52)fos. 12r-20r, 2 Sept. 1353.71 Johan's complaint was not uncommon; we find similar accusations lodged in two

other cases: A.M., FF 518)fos. 106r-107V)14Nov. 1340; A.M., FF 520ofos. 88r-10211 July 1342.


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47COMMON VIOLENCE

had been imprisoned immediately after he murdered his wife,Dulciana.72 Those working on his behalf successfully made apeace with the agnates and cognates of his late wife, however,and Anhellon was released from prison. In November, he hadthe audacity to come before the court to complain that his latewife's relatives were now harassing him, despite the peace. In asimilar case, from February 1353, the cutler Nicolau Garnier wasimprisoned for the murder of a goldsmith, Antoni Jardin.73 Hisrelatives went to some lengths to search out the three knownkinsmen of his victim, Guilhem Cauderie, Bernat Bonaut and

Jacme Bonaut, and made peace with them. None the less, thecourt refused to release the murderer as he expected, because nopeace had been made with the victim's widow, Johaneta andit was Johaneta's resistance that was keeping the man in prison.74

In both these cases, the courts treated incarceration as exile orsanctuary. The practice may have been more common than thenumber of cases suggests: we hear of these two only becausedifficulties arose during or after the process of arbitration. Thevery existence of the practice, of the equivalency drawn betweenincarceration and exile, reveals the degree to which the court ofinquisition was willing to forgo its jurisdiction over violent crimein favour of the catharsis of the peace settlement. To judge bythis practice, the ability of a murderer to escape the jurisdictionof the court, in Marseille or anywhere, should not be taken asevidence for the inadequacies of a medieval city's police force.Instead, exile was part and parcel of an untidy but reasonablyeSective system for prosecuting and punishing homicide andother cases of violent crime, cobbled together from Roman-canonlaw 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 leastamong people of common status, was relatively rare. There are,in any event, no clear and unambiguous examples in the fewsurviving court records involving homicide between commoners,

72 A.D.B.R., IIIB 64, fo. 73r)27Nov. 1362.73 A.D.B.R., IIIB 50, fos. 196r-203r,12Feb. 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 societiesthat practise the feud: see, for example, Boehm, Blood Revenge, pp.55-6;Miller,Bloodtaking and Peacemaking, pp.212-14;Wilson, Feuding, Conflict and Banditry inNineteenth-Century Corsica, pp.220-1.


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although several cases hint at the possibility,75 and the case ofJulian Marquet, discussed below, involves an assault motivatedby a desire for revenge. The feuding nobility was anothermatter entirely; mid-fourteenth-century records reveal a seriesof revenge killings involving two noble factions that stretchesback at least to 1309, and noble defendants, when prosecuted,conspicuously used the logic of vengeance in defending theiractions.76 Yet although common folk victimized by violence weremore likely to pursue a peace settlement than were nobles, it wasthe threat of hatred and retaliation that gave the assailant an

incentive to arbitrate. The evident potency of this threat showsthat the practice of revenge killing was not quite moribund amongcommoners.

IV

Delicate handling by the court may not have been everyone'sprerogative. And certainly genuine exile was not available to all.It took resources to escape the city for the countryside: friendsor kin in the city willing to undertake legal battles to preservethe abandoned estate and initiate a peace, others in the country-side willing to aid the miscreant. Exile, therefore, was self-selected: only well-off criminals could actually hope to benefitfrom it.

In considering what to do with those left behind, the inquisitiondid not necessarily incarcerate murderers and wait for a peacesettlement. It moved more vigorously in those cases where assail-ants were kinless and friendless that is to say, without power.The evidence, almost by definition, is poor: it took resources toput up a fight that could be documented. Yet hints found in thedocuments support the conclusion. On 15 December 1357,Guilhem Robaut came before the judge of first appeals to retracta confession of homicide.77 He declared that he had been coercedinto 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 beenunable to meet the original deadline "because of his poverty and

75 Notably the case of the murder of Uguo Robert; see n. 34 above.76For violence among the nobility, see Daniel Lord Smail, "Telling Tales in

Angevin Courts", French Hist. Studies, xx (1997-8nforthcoming).77 A.D.B.R., IIIB 822nfos. 84r-85r)15Dec. 1357.


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49COMMONVIOLENCE

hislack of kinfolk". One month later, on 15 January 1358,he

wasdeclared 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 viguierfor

havinghanged a man named Boryaca or Buryata, while atthe

sametime allowing a notorious Catalan pirate, Peire Maura,to

gofree. For the insult, Jacme had been fined 10 pounds, andhe

appealedagainst the sentence in September 1357.78 The charge

againstBoryaca was not given, but the name is not Marseillaisin

origin(hence the notary's difficulty in transcribing it), indicating

thathe was a foreigner.This is the only known hanging for the

entire period between 1337 and 1362; the man's status as aforeigner almost certainly helped determine his fate.

In a third, the inquisition apparently misjudged their man.79

Latein 1351, Uguo Jaume, originally from the fishing villageof

LaCiotat but then residing in Marseille, was brought beforethe

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 inthe

basement of the royal palace and thence to an eculeum, thewooden horse used for torture; there, in the presence of three

judges and a notary, his hands were bound behind his backand

then raised until he hung above the ground. As he hung therehe

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. Asin

the first case, powerlessness was compensated forby legal

acumen. Tellingly, we know of this case only because while Uguo

was lying crippled in bed, his wife came into court to lodgea

complaint against the judges. Uguo was not wholly bereftof

support.These are cases in which the inquisition made free use of

execution and torture (or the threat thereof). In others, wefind

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 adoptjudicial postures that varied according to the status of

the

78 Ibid., fos. 25r-35V) 18 Sept. 1357.79 A.D.B.R., IIIB 811, fos. 3r-13r, 26 Nov. 1351.80 Ibid-, fo- 3r-


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so PAST AND PRESENT NUMBER 151

murderer; the kinless, the foreigner, the immigrant were treatedwith greater severity than the well connected or the native. Thatassessment of status was negotiable, and both family and friendsof defendants crowded into the court during trials to assist thedefence. The press of bodies proved so burdensome that thecouncil issued a proclamation on 18 February 1351 restrictingthose attending the defence of a case to lawyers and the malekinfolk of the defendant fathers, brothers, uncles, nephewsand cousins.8l But in the outdoor booths where the courts ofmedieval Marseille sat in justice, the ability of the council to keep

friends and more distant kin at bay was surely limited. Animpressive show of solidarity could have had a considerableinfluence on the court.

Such may have been some of the circumstances surroundingthe peace of Guilhem Bascul, the carpenter, killer of GuilhemTurel.82 There had been a melee, a rix. Turel had been woundedand "killed outright" (totaliter interfectus). Bascul had beenarrested for the murder, banished, and then condemned for con-tumacy ("delatus tunc de dicto homicidio et propter eo banitusfuit et pro contumacia per curia Massilie condempnatus") i aprocedure that introduced a new twist to the legal custom oftreating imprisonment as exile, yet another imaginative way offining murderers for something other than murder. Bascul madehis act of contrition on Good Friday, in the Dominicans' church,before a great congregation, under the watchful eye of the manwho mediated the peace, brother Guilhem of Marseille, prior ofthe Dominican convent. Bascul was on his knees. Humbly andtearfully, he requested pardon. He offered the kiss of peace andwas embraced by his victim's kinsmen: the butcher Isnart Bayle,Laurens Gartin, and unnamed others. He seems to have beenutterly 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 Robautor Uguo Jaume, or summarily executed, like Boryaca? Like allnotarial acts, this one terminated with a list of witnesses, in this

case seven in number. Two were Dominicans. The other fiveUguo Esteve, Jacme Gili, Antoni Bonfilh, Peire Bonfilh andBernat de Soluiers are identified only by name. Yet in searchingthrough Marseille's archives I have found that all these men, like

81 A.M., BB 21, fo. 102V) 18 Feb. 1350.82 A.M., 1 II 44, fos. 60r-61V) 10 Apr. 1349.


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COMMON VIOLENCE 51

Bascul, were carpenters; what is more, they all lived on the samestreet as Bascul, the Carpenters' Street. The kin group assembled

on behalf of Turel was more than matched by Bascul's friendsand neighbours, and their willingness to make a public stand inhis defence may have saved him from inquisitorial excesses,allowing him to be banished and subsequently restored to hiscommunity.

Having kith and kin was a sign of respectability, which in turnwas rewarded by more lenient treatment, by the inquisition'sdelegation of authority to the victim's kin and to the peacemaking

process. The scarcity of trials for homicide makes it impossibleto see the process at work in other cases. Yet other trials involvingless serious violence, such as the first of the two discussed below,illustrate how defendants sought to impress the court by theextent of their social networks. In such cases, the defenceconsisted as much in establishing one's reputation before theuninformed judge as in challenging the inquisition's sequenceof events.

V

To judge by the surviving documents, exile was used exclusivelyby those guilty of murder or of very serious woundings. Themore trivial the wound, the more likely it was that the assailantwould remain in town and risk arrest by the inquisition. In avery curious and counterintuitive way, the judicial system offourteenth-century Marseille was primarily responsible for acts

of common and petty violence, leaving more serious cases to thesystem of arbitration and peacemaking.

Yet what was common, and what was serious? It was difficultfor foreign judges to grasp the relations of enmity that sometimeslay behind acts of violence. It was difficult to predict whether anassault might prickle the honour of the victim and give rise to alasting hatred. In practice, the court avoided the issue entirely.To judge by the few inquisitions that have survived in the appel-

late court records, the court preferred to proceed witha mechan-

ical kind of justice in cases of violence. It counted the blowsgiven, but never inquired into motive, and rarely bothered toestablish the chronology of the events leading up to the encounter.This indifference to motive tended to trivialize violence; thetrivialization of violence created grievances; and many defendants


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chose to pursue those grievances by means of an appeal. In theseappeals, we find defendants struggling to restore some dignity to

their behaviour by establishing a chronology that helped explaintheir motives, sometimes using witnesses whose own probityenhanced the value of their testimony. Two cases illustrate theprocess particularly well.

The first is an appeal made by the master shoemaker TomasDorlos against a 10-pound fine levied for a severe beating he hadgiven to a journeyman shoemaker, Jacme de la Barre, a native ofFrance.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 vicinityof the Scaria, a square alongside the port where many shoemakersformed a community. The inquisition was held immediately afterthe fight, and Tomas lodged an appeal a month or two later, on29 October 1342. At the inquisition,84 all the witnesses claimedto have seen Jacme, severely wounded, first defending himselfagainst Tomas and then lying prostrate on the ground. The firstwitness, Peire de Moustiers, reported that he had heard an uproar(rumorem) from inside the house of the shoemaker PeireChamonet. Rushing out, he saw the victim bleeding in the street,and Tomas striking him again with his sword. Asked who elsewas present, the witness said many others whose names he didnot know.85 This ignorance of names suggests that Peire was nota resident of the quarter; other documents in fact suggest he wasa goldsmith or a labourer who lived some distance away. Thenext witness, the brassworker Johan Raynier, reported that hehad heard the uproar from his workshop on an adjoining street;coming to the scene, he saw the accused striking the victimseveral times with a sword.86 This witness saw the fight in itsearliest stage, did not mention that the victim had fallen to theground, and explained that he had returned to his workshopalmost immediately. He, too, knew none of the names of theother bystanders. Both of the next two witnesses, SalvaireClemens, a resident of the quarter, and Bernat Spitalier, probablyanother brassworker, gave similar testimony: Salvaire seems to

have arrived on the scene just after the fight had broken out,

83 A. D. B. R., IIIB 808n fos. 1 84r-21or, 29 Oct. 1342.84 Ibid., fos. 193r-205V.85 Ibid., fos. 1 97V_198r.86 Ibid-, fo. 198V.


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COMMON VIOLENCE 53

while Bernat witnessed events after the victim had fallen to theground.87

The testimony given by the witnesses at the inquisition wasthin. None of them appears to have been among those who raisedthe alarm. All of them had missed the beginning of the fight; allreported only part of the events, in a curiously disjointed fashion.The sequence of events is confused. It is not entirely clear, forexample, whether the wounds were inflicted before or after thevictim fell. With the possible exception of Salvaire Clemens, noneof the inquisition witnesses was a shoemaker, and although this

may reflect the unwillingness of the shoemakers to becomeinvolved in an intraprofessional dispute it is more likely that theywere prevented from testifying by the inquisition. When Tomashimself gave evidence, all he was allowed to say was that Jacmehad once worked in his workshop and had struck him first.

This flattening of chronology, and this studied ignorance ofthe context of the dispute, were typical of the inquisition's stylein other cases that came to be heard on appeal. As a rule ofthumb, the inquisition had no interest in probing into thesequence of events that had led to the dispute. Judges were notinterested in finding out whether defendants were in any wayjustified in being angry; nor, as a rule, did they make any inquiryinto the social context of the dispute or the reputations of theparties involved. We cannot tell whether this inquisitorial habitwas intentional or not it may simply have been an incidentalresult of the custom of prosecuting only those caught inflagrante.Whatever the circumstances in this case, Tomas was offended,and in his appeal he tried to present the violence within thecontext of a larger dispute, including the social context. He wasnot above name-calling: at the inquisition, Jacme was called ashoemaker, but at the appellate hearing Tomas described hisvictim as a vagabond (homo vagabundus) and referred to him bythe diminuitive form of his name, Jacomin. But Tomas's primaryconcern was to show how his actions were justified by the realchronology of events, revealed by the list of titles (tenor titulorum),

or legal arguments, that he presented to the judge and calledwitnesses to prove:

( 1) Jacme owed his ex-master some money. One day Jacme cameto Tomas and asked to be paid his wages; Tomas responded

87 Ibid., fos. 198r-200r.


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54 PAST AND PRESENT NUMBER 151"Pay me what you owe me", whereupon Jacme suddenlyraised his hand and gave Tomas a great slap (magnamalapam)on the face.

(2) Jacme then took his cane and further wounded Tomas.(3) Jacme, assaulting Tomas with one hand, seized him by thehair with the other and pulled him about. Seeing that hecould 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 (habensextremit-ates corporeas magnas), and was more capable of hurtingTomas with a small knife than Tomas was ofhurting himwith a large one.

(5) Tomas was a peaceful man.88The story seems realistic enough and includes several points,such as the debt and the initial aggression by Jacme, that werenot mentioned by the witnesses called by the inquisition. Toconfirm this story) moreover, Tomas was able to recruit twoother shoemakers, a currier, a next-door neighbour, and a closefriend, the squire Tomas de

Portu. These men exemplifiedTomas's respectable social network. At least three of these wit-nesses had known him for some time and could thus confirm thathewas a peaceful man.89 All claimed to have witnessed the fightfrom beginning to end, and for the most part the testimony theyoSered corroborated Tomas's story well.The transcript ends with the declaration that "[t]he case wasdropped by higher authority".90 Yet it is doubtful that this out-comewas in any way guaranteed. Moreover, Tomas may well

have spent more than 10 pounds on his appeal, and there isnothing to suggest that the crown was asked to pay his costs.Obviously, Tomas was motivated by the conviction of a miscar-riageof justice as much as anything else; and since appeals wereheardin booths in the city's central square, it is quite possiblethatthis highly public depiction of Tomas as a reasonable manwouldhave restored his credit whatever the eventual verdict.

88 Ibid.,loose leaf inserted between fos. 186 and 187. These titles are too long totranscribein full.

89 It is significant that one of these three, his neighbour Alasacia Viola, was awoman,for women were commonly understood by the courts to have a sound graspofneighbourhood reputations and frequently appeared as character witnesses inMarseille.90A.D.B.R., IIIB 808, fo. 210r:Sopita est causa per summam.


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55COMMON VIOLENCE

The public nature of justice in Marseille, although it may havehelped the inquisition to trivialize violence and to shame defend-ants, also enabled wealthy defendants to restore their damagedreputations.

A second case is that of Julian Marquet and Jacme Guilhem.9lOn a cloudy day in January 1342, Julian, a fishmonger fromCatalonia, and Jacme, a fisherman, had a running fight along thequay of the port, which led to blows being exchanged and bloodspilt. Witnesses testified that Julian had been walking along thequay away from the church of St John when he was accosted by

Jacme, who (according to one witness) said to him "Leave thisplace!" ("Avas es loc!"). Knives were drawn; Julian turned andfled back up the street and into Nicola Bonifilia's tavern, followedby Jacme. Both men were yelling "Now is the time!" ("Ar esora! Ar es ora!"), and Nicola screamed "St Mary, help!" ("SanctaMaria acorres!"). As the neighbours gathered, they saw Juliandeal Jacme a blow on the right arm, returned with interest byJacme, who struck Julian twice on the head and once on the righthand. One or two neighbours intervened at this point, placing awooden bar between the combatants. Several witnesses for Julianclaimed 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 ben ferit").

Medical evidence given at the original inquisition suggestedthat both men were wounded to more or less the same degree;both were up and about a day or so after the fight. Yet althoughJulian received three blows and managed to deal only one, andhad not precipitated the fight, he was none the less fined 20pounds by the inquisition, whereas Jacme got away with only 15.

During the inquisition, the court made no effort to put thefight into any kind of context, confining itself to the time it tookJulian to walk from the church of St John to the place whereJacme was waiting and the few minutes of the fight itself. Theevidence from witnesses was fragmentary. No inquiry was made

about the defendants' kinfolk, not even about the suggestion thatJacme's brother Peire was involved in the fight. No inquiry wasmade into whether Jacme had planned the encounter. No inquirywas made into whether Julian, as a fishmonger and a collector of

91 Ibid., fos. 32r-65r, 5 Mar. 1342; the case is entitled Causa appellationis 3'ulianiMarqueti, catalani peysonerii de Massilie contra curia.


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taxes on fish sales, was involved in any professional dispute withthe fisherman Jacme. Some of these points, it is true, emerged

when the two men themselves were allowed to testify at the endof the original inquiry, but no effort was made to pursue thesepoints through the testimony of corroborating witnesses. In short,the court concentrated on a short span of time and on a verylimited set of motives: very limited indeed, for the court explainedJulian's act of violence only by saying that he had been "movedby the agency of the Devil" to strike Jacme the blow which hadcaused 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 oneinvolving weapons and bloodshed.

As in Tomas's case, Julian's appeal partly consisted in hisestablishing a chronology that highlighted his opponent's role instarting the fight and cast his own behaviour as self-defence. Butthe logic of his argument was informed in part by the logic ofvengeance. He sought to prove that he lived in the fishmongers'quarter, some way from the scene of the fight, and was notoriginally from Marseille but from Catalonia. His enemy, bycontrast, was from Marseille and lived in front of the church ofSt John, as did some of Jacme's own relatives, namely his brotherand "many other agnates and cognates, affines and neighbours,and friends".93 Last, he was alone on the day of the battle. Inthis version, Julian was deep in enemy territory, stripped of theprotective shield of kin. As it turned out, however, this hostilearray 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 nearwhere the violence took place; all the witnesses agreed that helived in the Praepositura, an area of the city far to the north.None the less, by heightening the sense of danger it made a goodstory and served to confirm the reasonableness of Julian's act ofself-defence.

Notably absent from his story, however, was a rationale for

Jacme's aggressive behaviour. In a remarkable revelation in theoriginal dossier, Jacme himself explained to the judge of the

92 Ibid-, fo. 62r-93 Ibid., fo. 34r-v.The phrase used to describe Jacme's associates is "attinentes dicti

Jacobi viz. frater suus qui tunc fuit et erat presens et alii plures agnati cognati seuaffines et vicini et amici Jacobi Guillelmi supradicti . . .".


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As a result, appeals were not common. In the twenty-one registersof Marseille's court of first appeals surviving between 1337 and

1362, only thirty cases are recorded involving violent confronta-tions. The negotiable qualities of the system clearly favouredthose with money. Others had to suffer in silence. If legitimateviolence and the pursuit of vengeance came to be restricted tomembers of the European elite, this was not necessarily becausecommon folk were not honourable: they may simply have lostthe chance to tell us so.

VITo judge by the example of Marseille, justice did not emerge inmedieval Europe fully formed, like Botticelli's Venus on thewaves of a turbulent past. Nor was peace something that figuresof authority imposed on a lawless and violent population, althoughthe legacy of Hobbes encourages us to interpret the Christiandiscourse of peace in this way. Habits of peacemaking wereingrained in medieval society, along with those habits ofvengeance that gave the spur to peacemaking. Some lawcourtsrecognized the utility of peace. Peace is fulfilling. It satisfies. Andin certain circumstances, the royal court of Angevin Marseillewas willing to allow the peace process to have its way, delegatingits authority over homicide and other crimes of violence to ensurethat the process would not be vitiated by a hasty judgement. Boththe power vacuum and the continuing reality of group vengeanceencouraged this caution.

But a peace was effective only when the assailant and the victimalike were part of a network of kin and friends, where bothparties possessed a certain social standing. This was a matter fornegotiation, not an object of common knowledge, especially tojudges who were foreign to the city, to its families, its neighbour-hoods and its problems. So we see justice practised in a discretion-ary, delicate way. We see people anxious to discover groups thatwould legitimate their claims to preferential treatment; and we

find many, like Guilhem Bascul and Tomas de Portu, callingupon their friends when kin were in short supply. We see subtlerhetorical battles taking place in court, as inquisition and defend-ant alike sought to define the context in which acts of violencetook place. In these practices for handling violence, there wasroom for negotiation and flexibility, judicial abuse and popular


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