Download PDF | Trevor Dean - Crime and Justice in Late Medieval Italy-Cambridge University Press (2007).
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CRIME AND JUSTICE IN LATE MEDIEVAL ITALY
In this important new study, Trevor Dean examines the history of crime and criminal justice in Italy from the mid-thirteenth to the end of the fifteenth century. The book contains studies of the most frequent types of prosecuted crime such as violence, theft and insult, along with the rarely prosecuted sorcery and sex crimes. Drawing on a diverse and innovative range of sources, including legislation, legal opinions, prosecutions, chronicles and works of fiction, Dean demonstrates how knowledge of the history of criminal justice can illuminate our wider understanding of the Middle Ages. Issues and instruments of criminal justice reflected the structure and operation of state power; they were an essential element in the evolution of cities and they provided raw material for fictions. Furthermore, the study of judicial records provides insight into a wide range of social situations, from domestic violence to the oppression of ethnic minorities.
trevor dean is Professor of Medieval History at Roehampton University. His recent publications include Crime in Medieval Europe (2001) and The Towns of Italy in the Later Middle Ages (2000), and he has written numerous articles on crime and justice in late medieval Bologna.
Introduction
The history of criminal justice in the later Middle Ages is important for (at least) two reasons. First, because official justice was present across many areas of life – a major component in the power of states and ruling classes, a significant presence in cities (lawyers, police, court officials, public punishments), a source of material for fiction-writers and painters – and this makes it vital for a wider understanding of the period. Secondly, because of the range of social situations and problems that judicial records give us access to: not just the everyday conflict of insult and injury, but also the oppression of ethnic minorities (Jews, slaves), the frequency of domestic violence, the oppression of servants in urban households, the criminal responsibility of children and the insane, as well as the more colourful cases of skilful thieves, sacrilegious sex and inventive tricksters.
The combination of the exotic and the quotidian in one source is hard to resist. The last three or four decades of the twentieth century saw a great increase of interest among historians across Europe in issues of crime and criminal justice. In general terms, the motivation for this came first from ‘history from below’ and the unrivalled access to lower-class experience that judicial archives afforded. A secondary impulse lay in the developing history of the state and its institutions of repression.1 These were later joined, though not necessarily reinforced, by ‘microhistory’ and the historiographical desire to reveal the possibilities for individual choice, for ‘negotiation’ and strategy, in relations between individuals and power.
Though the level and extent of interest has varied among the countries of Europe, it was most advanced in England, France and Italy. In England there are already numerous works that attempt to survey the many different aspects of criminal justice, from legislation to punishment; while in France there is the incomparable study of pardons by Claude Gauvard (which is much more than a study of pardons), as well as several general books.2 But for Italy there is no such survey: this is one effect of the enduring localism of Italian historiography. This book attempts to fill that gap. My own trajectory towards the study of crime derived from two impulses. One was an existing interest in comparative history: my first publications, though centred on Ferrara, also compared social developments there to those in France and England. In the mid-1980s, I also became aware of the historian Edoardo Grendi drawing the attention of his Italian colleagues to what was happening ‘over the Alps and beyond the Channel in the incipient area of the history of criminality’.3
The second factor was more broadly historiographical, part of a wide trend, not just a personal choice: a turning away from the history of the politically and socially dominant, on which I had started in the 1970s, to that of the politically and socially dominated. This is an aspect of what Alison Brown, in a different context, has called the movement to ‘de-civilise’ the Renaissance,4 a trend that has produced a picture of Renaissance society as one that confined and oppressed women, that legalised and permitted slavery, that was increasingly anti-semitic, that despised peasants, and that punished same-sex relationships.5 Together, these factors led me to shift both the locus and the focus of my research as I followed the greater abundance of documentation: from the study of a princely state to that of a republic, from political and social institutions to law, justice and crime, from Ferrara to Bologna (and more recently to Lucca). That shift also brought to the fore a need to reflect more systematically on the nature of the judicial sources used in the history of crime.
The main issue is that of coerced speech. Marc Bloch in The Historian’s Craft distinguishes between two categories of historical document: intentional evidence and unintentional. The former was composed to influence contemporary or future opinion; the latter was intended for an audience of just one reader or for no earthly audience at all.6 Another French historian, Arlette Farge – a historian of crime in eighteenth-century Paris – uses this distinction to argue for the uniqueness of judicial records as a historical source: unlike a printed text that is consciously structured to produce an effect, the judicial archive preserves in its statements, confessions and depositions traces of lives that did not choose to be narrated in this way, which are coerced, confronted by the realities of police power and repression.
They deliver what would not have been said, had some event not disturbed the peace of the locality. Reading these voices, she says, is like lifting a veil, disclosing a few moments in the lives of ordinary people, rarely visited by history.7 And in lifting the veil, historians should beware of appropriating what they find. Edward Muir and Guido Ruggiero, in their volume History from Crime, suggest, in contrast to the cliched comparison of historians to judges, that we should ´ instead consider history as a crime and historians as criminals.8 And what crimes do historians commit? Chiefly theft: expropriating judicial secrets and appropriating the past, ‘absconding with the words of others to make their own classifications, to write their own narratives’. The coerced speech of people otherwise unknown thus brings with it a whole series of problems of interpretation (on which, see below, pp. 31, 191–2).
These thoughts on how historians often present themselves to their public – the stress on revelation – have particular significance in the history of crime and criminal justice, because of the nature of judicial sources.9 Arlette Farge’s small volume on working in the (Parisian) judicial archive explores some major themes in reading and using court records. She makes three main points. First, she draws attention to the ‘reality effect’ that this type of documentation creates, the sense of being in touch with living people; secondly, she warns of the traps and problems that the documentation sets for us; and, thirdly, she gives examples of the ways in which, nevertheless, we can use the riches of the judicial archive.
It is because the judicial archive ‘snatches from obscurity countless inarticulate people, summoned to explain themselves’, it is because it preserves ‘fragments of life dragged from the crowd’ that it captivates the reader and creates the impression of giving access to real life.10 However, the ‘reality effect’ fades, ‘the mirage does not last’, and we have to face the twin problems of interpreting – asking questions of – this material, and then finding something to do with it.11 The first step is to recognise that the speakers in these records are not speaking directly to us at all: the version that we have – of their speech and of their actions – is that of the authorities, of the court and the clerk to the court.
Not recognising this is the error (if error it was) made by Le Roy Ladurie in his great work on Montaillou, the heretical village investigated by an inquisitor in 1318. Ladurie used the words of the villagers as if they werespoken to him, a sort of time-travelling ethnographer; he marginalises and forgets the figure of the inquisitor and the context in which the words werespoken. As Renato Rosaldo put it, Ladurie separates ‘the data from the instrument through which they were collected’.12 There can be theoretical justification for this operation: Paul Ricœur writes of the archive as the place where words are detached from their original speaker and his or her audience – Ricœur creates the figure of the archive as one giant orphanage – and argues that without either speaker or audience, those words become semantically free, liberated to take on new meanings.13 Now, at one level, this is unimpugnable – signifiers after all can have any number of signifieds – but part of history writing is precisely to restore some identity to speaker and audience in order to limit the range of meanings, and to anchor the text. And so it is that historians using court records have drawn attention not only to the likelihood of the use of torture, but also to the court-room context: even if the words of the accused and witnesses were not inflected by pain, they were still articulated by the weak before the powerful.
Farge sees in such words the working of adjustments between the self, the social group and power. Speech as recorded is caught in the act of making those adjustments, in a desire to convince its audience.14 The next problem is what to do with the profusion of material in the judicial archive. As Farge says, this archive miniaturises the historical object, it offers ‘un monde morcele’, ´ a profusion of imperfect, incomplete individual narratives, and yet such fragments of individual lives can connect to wider collective themes, and small events can reveal social identities, forms of sociability, ways of perceiving and communicating.15 In other words, they offer something more than, and something different from, the mere ‘history of crime’. Writing the history of medieval (as opposed to eighteenth-century) crime faces a range of additional problems. Zorzi has argued that studies of criminality in medieval Italy – as opposed to studies of criminal law and criminal justice – have remained few for a variety of methodological reasons.16
First, the fact that crime is accessible only through trial documents, which raises issues of reliability in both qualitative and quantitative terms. Secondly, the difficulties of placing trial documents into the context of local penal strategies and practices, and of connecting crime with underlying structures of economic, social and political relations. Gauvard too points to methodological obstacles. The first obstacle is qualitative: more actions were punished than were defined as criminal by the law. The second is quantitative: the sources, though abundant, are diverse and discontinuous, and so cannot be compared with each other.
The relation of prosecuted crime to total crime is uncertain: individuals and communities selected crimes to denounce to the authorities, while private pacification settled some disputes. As a result, the records of official justice preserve just one part of the ‘economy of justice’.17 Records of official justice tell us as much about judicial procedures as about the crime and the criminal. ‘No source tells of the crime alone, but each gives a discourse on the crime.’18 The problem for the historian therefore becomes twofold: analysing sources while respecting their typology; and distinguishing the reality of crime from the descriptions it gives rise to (as the image of crime varies according to source).19 Gauvard’s solution to this conundrum was to focus on one type of source, namely royal pardons. My response is different in turn. This book attempts to address these problems by adopting and extending a structure also used by some other recent works of Italian social history: Cohn on peasants, for example, or Epstein on slaves.20 This is to build up different, but complementary, pictures from discrete classes of documentation.
In Cohn’s case it was chronicles, criminal records and government measures, and in Epstein’s names, laws and contracts. Here the five types of document will be legislation, prosecutions, consilia (opinions of learned lawyers on specific cases), chronicles and fiction. Each source opens a different window on the problem, though not necessarily on past ‘reality’, as these texts are all shaped by the conventions of their genres. The fragmentation of viewpoint in Part One owes something to microhistory and its literary analogues,21 especially their refusal to smoothe over gaps and disparities in the evidence. Microhistory developed as a critique of a type of history in which ‘different pieces of evidence, written from various (sometimes even conflicting) perspectives, are combined in order to build up a smooth, homogeneous narrative’. Instead, each piece of historical evidence needs ‘a specific interpretive framework, related to the specific code according to which the evidence has been constructed’.22 In Part One, each chapter deals with one type of documentation, in the light of both the problems the source poses and the information it provides.
In Part Two, however, I do attempt to smoothe over gaps and disparities in the evidence, in order to examine a range of crimes or behaviours, and to offer some generalisations. Material here is drawn chiefly from cities outside the historiographical duopoly exercised by Florence and Venice: from the archives in Bologna, Mantua, Modena, Reggio, Savona and Lucca; and from published documents for the whole of late medieval Italy, from the duchy of Savoy and the Venetian terraferma to the kingdoms of Naples and Sicily. From the thousands of printed volumes of statutes, I have focused on a range of cities, large and small, across most areas of Italy, including the South and Sicily. I have tried to mirror this geographical spread in the selection of chronicle material. I have used the printed collections of consilia of the leading legal consultants, supplemented by some minor ones, and the bestknown collections of fictional tales or novelle. Omissions, of course, there are. At the archival level, several of these omissions are compensated by the availability of good secondary studies. There may be critics who will argue that it is hazardous, if not misleading, to put together material in this way, without due regard to the institutional, social and contextual differences between, say, an insult delivered in the street in Savona, and one uttered in Palermo (on which see below, pp.113–16).
The answer lies in pointing to the rationale and benefits of comparative history. Marc Bloch’s essay on this subject, first published in 1928, 23 remains an influential statement of the values and dangers of this method, and it seems worthwhile, at the beginning of this book, to rehearse his distinctions and arguments, especially as they continue to be used by those who advocate the comparative method.24 Bloch pointed to the substantial benefits of comparative analysis: whether one is looking for differences or similarities, it can both reveal problems and suggest explanations beyond the ‘maze of little local facts’ and the ‘exclusively local’. Only comparison outside the conventional boundaries of a unit of analysis can reveal features that seem, in purely local study, to be natural developments. Later writers have followed Bloch here. Historians might compare the similar in order to produce generalisations and syntheses, theories and models; or they might compare the dissimilar in order to make new discoveries, illuminate special features of the unit analysed.25 The dangers have also been reiterated and extended by subsequent authors. Bloch noted the barriers that inhibit the writing of comparative history: each group of local historians asks different questions within units that might seem comparable,26 and a historian from outside has ‘to grope his way all of a sudden in what seems to be a new world’.
The comparative historian is thus at a disadvantage compared to those with local expertise, those who know the documents and their associated historiography much more intensively. Since Bloch wrote, this disadvantage has undoubtedly grown, as specialisation has advanced and deepened. Given that comparison seems to require ‘equal expertise in at least two societies, languages, traditions of record-keeping and interpretation’, it is unsurprising that few historians are willing to abandon the benefits of specialisation.27 Moreover, the difficulty of comparison has been underlined at a theoretical level: are the units chosen for comparison typical of the broader societies of which they are part? Are the common features actually important for understanding the working of the compared units?28 This, however, does not make comparison an impossible path, because all historians are faced with this problem of dealing with the difference in viewpoint between themselves and the actors in the past who are the object of their study.
I have tried in this book to draw on the benefits of comparative history, while hoping to avoid the dangers. I have certainly not made myself equally expert in the history of all the cities and regions covered in this book, and I hope that local historians, in judging my effort to use material with which they are more familiar, will remember the comparative historian’s answer, as formulated once again by Marc Bloch: local historians have an advantage of expertise over me, but I have one advantage over them, which is that I have read works on similar matters in other places and have tried to draw inspiration from them.
This leaves the question of how to write such a history, of what material to select and what words to use. It might be said, for example, that the material – sex, slander and bizarre atrocities – lends itself to snappy and exciting writing. This, however, is to fall into the ‘sensationalist trap’, and twice over. The first part of the trap lies, as Sam Cohn put it, in ‘quarrying judicial records for those activities least represented in them’.30 This is a fault that mars the otherwise excellent collection of Florentine documents assembled by Gene Brucker: over half of his documents deal with crime in its various forms, from unlawful killing (homicide, infanticide, uxoricide, etc.), through sex crimes (rape, incest, pimping, sodomy) to forgery, fraud, gambling and blasphemy.31 However, representativeness is sacrificed for variety: not only are these crimes among the least frequently prosecuted, but the commonest crimes (assault, insult) find no place in Brucker’s picture of Renaissance Florence – a historiographical instance of the ‘law of opposites’ found in modern reporting of crime.32 The second part of the sensationalist trap lies in allowing an ‘interest in telling spicy tales’ to dominate (as in the work of Guido Ruggiero).33
‘Too often’, David Gentilcore has written, ‘social historians, working from criminal records, plunge into the exciting, dramatic world of the depositions without considering their particular tribunal’s effects on shaping their structure and content.’34 As Claude Gauvard has compellingly argued, historians who have sought out sensational material and described it using impressionistic methods have created and maintained an image of the Middle Ages as the age of violence, when latent aggression could suddenly flare up, and when the population lived in constant fear of bandits and highway robbers.35 Interest in judicial sources still turns to some degree on the ‘expressive richness and evocative power’ of crime reporting.36 In one sense, it is difficult entirely to get away from this without deliberately writing dull history. Yet Andrea Zorzi is quite right to be dissatisfied with the existing state of research. Methods have certainly changed over the past fifty years, but they still leave something to be desired.
As an example of the episodic and sensational take Pontieri’s depiction of the breakdown of order in mid-fifteenth century Calabria, which includes pilgrims left hanging naked from trees, criminals summarily slaughtered on a market-place, and friars whose genitals were burned when they failed to pay a prostitute.37 An improvement on this is the simple counting of categories of crime, following cases through from initiation to conclusion: Verga was one of the first to practise this, on Milanese registers for the period 1385–1429, and later historians repeated the method for places such as Brescia and Sicily.38 A further advance lay in comparing such elementary calculations with other data. One variety of this is to ask how far judicial practice followed statute law in imposing penalty.39 Another – adopted by Ruggiero in his study of violence in Venice – is to set different social groups’ participation in crime against their proportions in the population, and suggest explanations for the resulting pattern.
Yet the debate over Ruggiero’s methods has revealed the difficulty of putting this calculation into practice,40 while his explanations get no further than attributing an assumed class character to behaviour: thus noble violence was related to honour, but for workers and marginals violence was a way of life, not part of a lifestyle, and was motivated by immediate problems in their daily struggle for survival.41 As in this case, historians have attempted (in Zorzi’s phrase) to identify the ensemble of relations that contextualised criminal behaviour – the socio-economic, the political, the cultural – yet such explanations often remain rather general. The rise in the number of cases in Sicily in the 1480s is said to be due to demographic growth and to social disorder following epidemics and shortages.42 At Turin, the growth of violence in the fifteenth century was fed, we hear, by immigration, by the student population, and by the presence of the duke and his entourage.43 General economic conditions at Montone (migration, taxation) created a social climate of insecurity and instability, determining high crime levels.44 This reference to factors such as plague, famine, migration and taxation, and to elements of the local population such as students and courtiers, undoubtedly has some explanatory value, but it usually remains partial and conjectural. The problem is this: modern criminology distinguishes three levels of explanation of crime – the micro (the characteristics and social interactions of individuals), the intermediate (the characteristics of families and communities), and the macro (general economic and cultural conditions, systems of government and law).45
Because of the nature of the medieval sources, the first two of these levels are largely, if not wholly, out of reach, irrecoverable. Hence the focus on more general causes. This book does not entirely escape any of these problems in writing the history of crime – some colourful cases are examined, some general explanations are offered – but it does adopt a different approach, one that looks first at the discourses of crime present in five types of documentation, and then at the most important forms of prosecuted crime. The aim is not to argue for a new categorisation of crimes, or to attempt to offer new explanations of crime, but to write about crime in a new way, focusing on attitudes, representations and constructions. The material is first segregated according to type of source, and then integrated according to type of crime. No other study draws on such a range of material or uses it in this way. In doing this, the chapters that follow aim to address a number of interrelated themes or questions. Is it possible to overcome the often-lamented gulf between legal history and social history, a gulf that reserves ideas and texts to jurists, and facts and records to historians?46
What happens when we decentre the historiography of crime, moving away from Florence and Venice to other cities and different regimes? Is it possible to identify general or common patterns among the various polities of late medieval Italy? Are modern historians’ categories (e.g. ‘sex crime’) as straightforward as they seem? How did the behaviour in question and its legal and judicial treatment evolve over the period? Itremains to justify the chronological range of this study, and to expound some basic features of the judicial systems of Italy. The period covered is that of the ‘later Middle Ages’ as commonly understood, in other words, from the late thirteenth century to the end of the fifteenth. It might be wondered whether criminality or criminal justice had any distinctive features in that period. The opening of the period certainly coincides with the proliferation of judicial records, yet the period as a whole witnessed significant changes in how crimes were defined, reported, tried and punished (some of these changes are surveyed in Chapter 1). The repressive forces of the state grew in number and changed in quality: increased numbers of police officers, the militarisation of policing,47 and greater staging of execution as a spectacle. There were changes in the law and in judicial practice, whether towards greater severity or greater leniency (see below, Chapters 7 and 10).
There was a change in the social composition of cities and countryside, with the migration of slaves, Slavs and Jews (partly addressed in Chapter 7): though numerically small, these groups aroused anxieties out of all proportion to their numbers. And there were greater social disasters – especially the Black Death – which seem to have had impact on types and levels of criminality.48
For most of the period, the cities of the centre and north of Italy shared a roughly similar judicial structure and similar judicial procedures. This was perhaps partly cause and partly effect of their subscribing to a similar system of hiring judges from a circulating pool of lawyers and noblemen. Commonly, the chief judge contracted with a city to serve it for a semester (six months) on certain terms and conditions, and to bring with him all the necessary subordinate staff. At the end of six months, his performance was reviewed (in a process called ‘syndication’). At that point his contract might be renewed or he would move on to another post. Sometimes judges would be appointed for more than six months, or would serve for less.
Each judicial team would consist of a chief judge (Podesta), a number of subordinate ` judges, including one specifically for criminal justice, notaries and police agents. Supporting them would be civic officials, such as town-criers who summoned defendants to trial. Some cities hired just this one set of lawenforcers. Others hired parallel or subordinate sets. The most frequent of these was the Capitano del Popolo. His post was originally intended to handle cases involving members of the popolo (the middling artisan and commercial class), but in practice it is often difficult to distinguish between his caseload and that of the Podesta. Most cities also had judges for petty ` crimes in their subject towns and villages; some added police chiefs or bandit-catchers (bargelli) with specific competence across the countryside (contado). Whereas the post of Podesta` was a relative fixture, these other posts appear and disappear. The tendency in the fifteenth century seems to have been for the Capitano del Popolo to fall into abeyance or to be abolished: in Florence, the post was terminated in 1502.
Cases came to the court of Podesta o` r Capitano by one of three methods: an accusation delivered by the injured party, or notification (‘denunciation’) by local district officials in city and contado, or ex officio action by the judge (see below, pp. 17–18). The injured party could choose whether or not to make an accusation, but district officials were obliged to report specific categories of crime within strict deadlines. Local communities in both city and contado were required to pursue, capture and deliver malefactors in their areas, while judges also took regular information from localities about persons of ill repute living there. To this general picture there were exceptions. Florence in the fifteenth century gradually did away with the hiring of foreign lawyers as judges, and passed an increasing proportion of criminal cases to a small commission of citizens, the Otto di Guardia, or to new tribunals formed of leading citizens, not lawyers, with specific remits.50
At the same time, the system of official denunciation of crimes atrophied there, and the posts of both Capitano and Podesta w` ere eventually abolished. Venice did not employ foreign judges, but had two routes for cases to enter the criminal justice system: the Signori di Notte policed the city, apprehended malefactors and presented their cases to a three-man tribunal (the Giudici di Proprio); alternatively cases were referred (by victims or officials) for investigation to the state prosecutors, the Avogadori del Comun, who then presented their findings to the Council of Forty, who in turn voted on guilt and on penalty.51 Venice had a further committee, the Council of Ten, which, though principally concerned with state security, also came to deal with some serious crimes, such as sodomy. Southern Italy and Sicily were rather different, in both structure and procedure.
In the kingdom of Naples, there was a high court (under the Angevin rulers, two high courts), provincial courts under justiciars, and judges in towns and some baronial lands; under the Aragonese kings, from the 1430s, the high courts were unified and reformed, while the main point of change was the introduction of Spanish-style police officials, who could not just arrest criminals, but try and execute them as well.52 In fourteenthcentury Naples, the use of inquisition was limited, general inquisitions were abolished, and the use of repute (fama) as proof was allowed only in special circumstances. Accusation could be by the injured party only, torture was limited to cases of highway robbery and homicide, and composition (the negotiation of penalty) was explicitly permitted in non-capital crimes.53 In Sicily there was a multi-level structure, a network of institutions, central and local, aristocratic and royal, ordinary and extraordinary, the balance among which changed over time according to varying relations of power among social groups on the island.54 The central royal court (Regia Gran Corte) served as supreme court, hearing cases of treason and appeals from lower courts; the courts of the Captains in the towns acted as the first level of criminal justice.
The latter courts combined a royal nominee (the Captain) with local appointees (judge/s and notary) – and their judicial decisions could be appealed to regional Justices (Giustizieri).55 In the mid-fifteenth century, the reforms of the Aragonese King Alfonso marked a shift towards centralisation, and aroused complaints regarding the activities of special judicial ‘commissioners’.56 In procedure, prosecution could be initiated only by the injured party (though inquisition for a few serious crimes was allowed after 1446, another of King Alfonso’s reforms), and composition could be negotiated at any stage between the defendant and the Crown.
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