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Breakin' the Law

Introduction

This essay is about law and lawbreakers, crime, trial and punishment. More generally, it about the sources of authority in the Middle Ages, how it was administered, the forms it took, and any changes that occurred during the later Middle Ages.

This provides us with another way to look at medieval society. The usual approach is hierarchical—who was on top of the ladder, who was at the bottom. If you have read the other essays on medieval society, you'll know that there was no ladder and that a purely hierarchical view is misleading.

Another way to approach the topic is insiders and outsiders. In any society there are the "respectable" folk, regardless of their wealth or status, and then there are those who are not respectable. One of these groups are criminals and those whom society deems as criminals. Before we can talk about criminals, though, we need to look at the nature of crime (and therefore at the nature of law) and the varieties of punishment. A close look at the outsiders can tell us a great deal about the insiders as well.

Modern Perceptions

Let's begin with familiar territory. In our own times, in our own society, who makes law? Who defines it, who judges the breaking of law, who apprehends the accused, and who sees to the punishment of the convicted? Answering these questions inevitably drags up a more fundamental question: what is law, anyway?

Take a moment to think about these questions. You don't need to answer "correctly" just put some thought to it.

I'll wait.

Medieval Law

Ready? Good. Now let's look at medieval theory and practice.

I'll talk about legal theory first, then about practical application of the law, and finally talk about criminals and their fate.

Three Kinds of Law

The Middle Ages, drawing on ancient Roman jurisprudence, recognized three sources of law: nature, God, man. All law was understood to be based on one or all of these.

The phrases you will encounter, if you start reading legal history, are: natural law, divine law, and customary law, or the law of nations.

Natural Law

This is not things like thermodynamics and gravity. It's the law that governs the behavior of natural beings. These weren't so much specific laws as they were principles that guided judgment. For example, people need to eat. It's a natural law. Therefore, starving people may do things that a well-fed man would not. It's natural to be jealous, to seek revenge, to protect one's home. Marriage is a natural state. Property ownership is natural. There are natural leaders. These and other principles were understood by jurists to be "natural laws" as immutable as physical laws.

The one that's most widely recognized is the principle of self-defense. This is not divinely ordained; rather, it's the instinctive reaction of any living being to preserve its own life if attacked. Any court of law must take into account natural law. In reality, the only people who made explicit reference to natural law were the jurists. Real people and real courts did not. But ideas about natural law formed an important underpinning.

Divine Law

In addition to Nature, there are laws and principles set down by God and that pertain specifically to Christians there's any society, then there's Christian society This is a major step. Heretofore, law belonged to you only in your membership in a natio, but Christian law applied to all nations, so long as they called themselves Christian nations. God set forth certain laws and principles to see to the governance of human beings, who cannot govern themselves

This entered into society at two points. The most obvious one is canon law; that is, where an ecclesiastical court had specific jurisdiction. Marriage, blasphemy, heresy, obedience to bishops and abbots, all these were within the purview of canon law. This was developed within the Church over the centuries and was, as it were, the manifestation of divine law in human affairs.

Divine law also entered in at the theoretical level, as a supplement or complement to natural law. Specifically, natural law governed the behavior of all living creatures, but divine law was specific to the human experience. It was axiomatic that natural law and divine law could not be in conflict.

The Law of Nations

Also called customary law because it was law based upon the customs of a specific people, the law of nations was recognized to be variable. Each people could have its own laws and these were specific to that people, derived from experience. Both divine and natural law were universal and eternal; customary law was fallible. So, for example, both natural law ordains that some will be the lord over others. Divine law ordains that kings shall rule and subjects obey. But customary law authorizes the king of a particular people to raise troops under specific conditions.

Law was therefore the product not of general principles but of specific experience. English law was different from French law. The laws of Florence were different from the laws of Siena. This was right and proper, the natural order of things. And if a Sienese committed a crime against a foreigner, the first question was: in what court should he be tried? Or, to make it more interesting, if a Venetian should assault a Florentine while in a tavern in Milan, whose law prevails? This extended not only to the question of what specific law was violated, but also to the venue for the trial, the rules of evidence, and the types of punishment. The situation where this question was raised early and often was in commercial law, in the matter of disputes over bills and fraud. In Champagne in the 13th century, it was worked out that there would be special courts, in session only for the duration of the fair, and these would hear disputes. This was the early foundations of international commercial law.

Because law was an expression of a people, the idea of new law was alien. You don't have new customs. If a man steals a cow, you don't come up with a new way to judge the crime; you ask what is the customary punishment for the theft of a cow. For a long time, new laws were couched in terms of being only a return to law or a correction to previous mistakes. Kings sometimes swore that they would introduce no new laws Here as elsewhere, the cities form a major exception. They were always needing new laws Commercial law was always encountering new situations Factional strife meant frequent new constitutions

Jurisdictions

Canon Law

All clerics were covered by canon law, not civil law The Church had its own courts, lawyers and legal traditions The criminous cleric was a point of much controversy in the late Middle Ages Sometimes the Church tried and condemned, but then turned the criminal over to the State for punishment, especially in the case of executions, but also for minor stuff that might require a whipping or branding or the stocks.

Royal Law

Most recognized the king as the source of law Only kings could make new laws Parliament as a source of law was something that begins to happen only in the 15thc and then only in England Royal law applied to all in the realm, in theory. Treason, lese-majeste, coin clipping and counterfeiting, poaching, assault on royal officials Royal courts were also courts of appeal; for the nobility everywhere, in some places also for commoners.

Local Law

Types of Crime

Crimes against God

This is the whole gamut covered by canon law. It could be as petty as lying or blasphemy. It could be as serious as sorcery or heresy.

The Church had its own courts, its own lawyers, its own legal tradition, and a massive amount of rules and regulations, many of which were administrative. Since the 12th century canon lawyers had been hard at work codifying and rationalizing the tangle of canon law as it had crown up in the various corners of Europe, and that work continued through our period. The Great Schism greatly propelled this trend, as the competing popes sought legal precedents for their rival claims not merely to be pope but to make an appointment, claim an income, judge a case.

Crimes against the king

Treason is the most obvious, but there were others. Treason was more than just plotting to overthrow the king. The French term was lese-majèste, which means something along the lines of defamation or dishonoring the majesty of the king. This covered things like conspiring with the enemies of the king.

Perhaps less obvious are crimes in areas normally under royal authority. This included clipping coins, because minting was under royal authority (not always, but where it had been also granted to a magnate then the crime was against that magnate). Poaching on royal lands was another. Assault of royal officials yet another. It wasn't so much that the crimes themselves were heinous as it was that they undermined royal authority, and that in turn threatened the stability of society itself.

Felonies

By 1300, most European societies had made a pretty clear distinction between greater and lesser crimes. Greater crimes were under the authority of the king, while lesser crimes were handled by local authorities. We might not agree with the medieval assessment of greater versus lesser, but our legal system continues to distinguish between a felony and a misdemeanor.

Even in the countryside, at least in England, murder was a matter for royal authority. This didn't mean you went before the king or anything. It did mean that your case would be heard by a justice of the peace, who visited your village twice a year. Your case was not under the authority of the local baron. Another felony that would land you in royal court was arson.

Petty crimes

In the countryside, lesser crimes were handled in the manorial court. These included cases of assault between peasants, cases of debt, and theft. Name-calling, public drunkenness, and a variety of morals charges likewise belonged to the manor court.

Unless, of course, you were in the clergy, in which case you would appear before the episcopal court, if at all.

Commercial crime

In the countryside, this covered markets and fairs, and typically fell under the baronial or manorial court. In the towns, though, the city itself was the authority, and it typically had one or more merchant courts sitting more or less permanently.

Fraud, failure to pay, even assault between merchants With the international nature of fairs, the only solution was to have fair courts Elsewhere, "colonies" were established (kontore) Often demarcated physically, like in Novgorod Steelyard in London Inside that area, that nation's law prevailed Outside that area, the local law prevailed

Multiple Jurisdictions

Most any crime had multiple courts that had authority. Not like today with a clear hierarchy of jurisdictions For those with money, you could hire lawyers who could keep a case in play for years Dickens: court cases that were like investments, handed down from one generation to the next Also meant that people could be victimized, getting prosecuted first by one court then by another The chief difference between then and now is that these various jurisdictions saw themselves as having competing authority.

Example: The Vehmic Courts of Westphalia

These courts developed as strictly local baronial courts, much the same as countless others. They did not meet regularly but were always ad hoc, meeting to hear a particular case. In the beginning, they were convened in order to hear cases that manorial courts couldn't handle. They weren't quite a court of appeals, but they did in fact wind up hearing cases that had already appeared in some other court.

Membership on the court was prestigious, and locals paid for the right to be a member of the court. There was a practical advantage, not only because the members received a percentage of the fines levied, but also because they could exert some influence over local disputes. The status of the courts was raised by the Luxembourg emperors in early 14th century so that they could regularly be a court of appeal.

They began hearing appeals on capital crimes in the 14th century, and later in the century began receiving appeals from places outside Westphalia. If the trial were capital, the judges were sworn as wissend, a word that nominally means "wide man" but has overtones of secrecy. Membership included a secret ceremony and password. The trials were closed, to protect the identity of the wissend, because the sentence was nearly always execution, or else exile. In any case, there was always concern over retribution from the family of the condemned.

The atmosphere of the courts lent itself to rumor. After all, they met in secret, the accused was never present, they issued their decree, and the condemned was executed. Sometimes this entailed armed men knocking on the fellow's door in the middle of the night, dragging him out and killing him on the spot.

The Vehmic courts reached their heyday in 1430s and 1440s, when they were hearing cases from as far away as Switzerland. Eventually they overreached themselves, condemning great lords or entire cities, issuing sentences that could never be carried out. By late 1400s they were strictly controlled, but by that time their reputation had passed into legend with their secret judges and trials.

A later court in England had something of the same legend—the Court of the Star Chamber. The Vehmic courts were never as powerful, for they were not backed by royal power, nor were they as sinister as the later stories would have us believe. The courts were, however, a good indication of how organic, how ad hoc, was medieval justice. Without strong central authority, justice was administered in a bewildering variety that shifted with every generation.

Example: Court of the Verge, England

This is a less lurid example, but illustrates other aspects of medieval justice. The Court of the Verge was a special court that existed only when the King of England was travelling within the realm. As you can imagine, the royal court on the move was a rather grand affair, involving many people and requiring plenty of local services wherever they went. The last thing the king needed was for his people to get tangled up in the local courts.

So developed a royal court whose jurisdiction extended for twelve miles in every direction outward from the person of the king. Within that circumference, any crime that was committed was referred to the Court of the Verge.

The court was presided over by a steward and the marshal, and there was no appeal. Most of the cases were disputes over money, but sometimes there might be an assault or a theft.

The Court of the Verge demonstrates how personal was medieval law. The person of the king was special, different from everyone else, and he merited courts and procedures that were different. In modern times I suppose we would invoke national security to accomplish the same sort of special treatments. But if the king should die, the court no longer had authority; no longer even had existence. And when the king returned to his own estates, the Court of the Verge likewise ceased to exist.

Law Enforcement

How did people know a crime had been committed? Same way as now: someone made an accusation. That accusation was typically made to an authorized representative of public authority. There weren't really police yet, though there were officials with police powers. In the English countryside, for example, this was the sheriff. Every community had someone. If nothing else, Joe Peasant would go to the "better sort" in the village and make his claim, and they would then go to the public official.

There was nothing like forensics, though, so officials relied heavily on the testimony of others. They saw X fighting with Y. They saw a man, a stranger, running away and then the fire broke out. That sort of thing. If the accused were known, the sheriff (or his equivalent) was authorized to go to the house of that person and arrest him. He might take the man away to be imprisoned in the local castle or monastery. He might simply tell the fellow to stay put until the next court.

It was no good running away. If you did, you were declared "outlaw"; that is, you were outside the protection of the law. You could be killed on sight with impunity. Your property could be confiscated and not returned. Your family would be left with nothing. Only the desperate ran, and medieval society generally figured only the guilty ran. On the other hand, if you could run beyond the reach of the law, you were free. There was no international police and no rules for extradition. The fugitive could go to another country and be safe. The fugitive could also simply go into the hinterlands and live as a bandit. That's what Robin Hood did.

Sometimes, the guilty man was caught in the act. The village could then rise up against the felon and either apprehend him or drive him out. In England this was called raising "hue and cry", and to do so without cause was itself a crime, sort of like dialing 911 as a joke.

There's one other area of law enforcement worth mentioning, something called "self-help." A good many crimes were dealt with privately, especially in the towns. These included obvious crimes such as assault or burglary, but also included offenses not in any law code, such as disrespect or dishonor. The legal system still recognized the right of a man to redress wrongs done to him, especially when the act was one that did not otherwise affect the rest of the community.

The most notable example of this is the duel.

No police yet, but officials with police powers gonfaloniere in Florence (and elsewhere) In Venice, it was the Signori di Notte and the Capi Sestieri Sheriffs in England In many villages it was the community, or sometimes an appointed committee of twelve or ten or twenty posse comes from "to be able" or, more correctly, to have power.

Signori di Notte in Venice

The night patrols consisted of twelve men in each contrada Nobles were put in charge (elect3ed), with popolani assistants Patrolled also in boats The noble officers were issued a particular type of sword that was forbidden to anyone else. We even have a case of a noble impersonating an officer The non-noble retainers could nto be from the noble's clientage Jurisdiction weekly tavern inspections stop-and-frisk keeping prostitutes in their ghetto keeping track of known criminals keeping track of new arrivals with a bad reputation When a member made an arrest, he was required to justify it to his colleagues within one week. If they did not agree, the accused was released The Signori di Notte also investigated homicides, on request of relatives. CSI: Venice The accused had the right to select his own attorney. If he could or would not, the court appointed a defender. Homicides required witnesses. Thieves were routinely tortured, but the six Signori had to authorize it, two had to attend, along with two judges and two ducal councillors. Of twenty-five homicides in the 1360s, only twelve resulted in executions. There were fifty sentences for theft, of which 17 were hung and 33 maimed. Of the seventeen, fourteen were foreign. We do have cases of nobles refusing to cooperate. They would threaten officials and even attack them. They would bribe or threaten court clerks to alter official transcripts.

England

Mix of Anglo-Saxon and Norman, with various attempts at innovation and reform, esp. 13thc. These overlapped, or older forms persisted and coexisted alongside newer ones. County/shire – hundreds – vills Sheriff, coroner, J.P., bailiff (hundred), constable (vill or town) Crime detection was the job of the peasants. A house is on fire! Oh, look, a dead body! If the perpetrator were seen or known, the villagers were to raise hue and cry. All able-bodied men (members of the frankpledge, the tithing group) were to take up weapons and pursue. Since 1185 all members of the tithing group were to be armed. Apprehend the suspect and hold him. Turn him over to the sheriff, or take him to a county jail. Sheriff came around twice a year. J.Ps (increasingly important in later 14thc and after) came around four times a year. Either could issue warrants for arrest, and J.Ps could actually arrest themselves and were further empowered to pursue suspects across county lines. If there was an unnatural death, one of four county coroners, locally elected from the knights, was called. His job was to determine if it were accidental, homicide, or suicide. He could, on the testimony of the villagers, issue a warrant for arrest. Arrests were normally done by the bailiff. Sheriff summoned juries. These were twelve men from the place of the crime. Their job was to hear evidence and to determine if a crime had been committed and if the accused should really be accused. J.Ps or local judges determined guilt or innocence. Often it was as simple as getting a certain number of people to claim you were innocent. Case closed. For low justice, an accuser came before the baron, the accused came or was brought, and the baron judged. The end.

Jails Jails were awful. The accused sat there until the case could be heard, unless they could afford bail. Bail wasn't posted. Instead, some member(s) of your community stood surety. If you blew town, they were amerced. And you were automatically guilty. If you couldn't get out, you stayed. The poor just sickened and died. Those with money could buy better food (or food at all; the poor often relied on pious donations), better cells, even lighter chains. Clerical Status Had to show up dressed as a cleric, with witnesses in tow. Still be tried and convicted, but no punished Turned over to your abbot or bishop Mitigating Circumstances Children under 12 had the charges dropped, as did the insane Self-defense or accident brought conviction and then a pardon Pardons could also be won by serving in foreign wars Abjuration A felon could take refuge in a church and stay for 40 days. A coroner or sheriff could come and take the felon's confession, whereupon the felon took an oath of abjuration. The official would give the felon a route and a timetable. If he deviated from either, he would be taken and killed (note that they didn't escort). The felon was to leave the country forthwith and never return. Outlawry Running away; that made you an out-law Killed on sight; property confiscated Nobles might run, hoping to have enough influence to return and recover Ordinary folk took to mountain and forest, like Robin Hood, or flee the country There was still a strong sense that justice was in the halls and castles and towns. Between these places was local law, which was patchy and unreliable. And outlaws were in the wilds. See this in the Robin Hood tales but in many other stories as well. The personal presence of the king changes everything. Again, note the Robin Hood legend, or Ivanhoe. Much of the tone of the outlaw legends is that the outlaw is doing rough justice as a kind of substitute for an absent king There were real outlaw bands. Not just the routiers but real gangs. In England there was the Folville gang, in the 1320s, in Lancashire. In many cases the gang was centered around a local noble family, but we do have cases of gangs being led by a cleric. Self-Help It was "natural" to seek retribution directly If there was an assault, a counterattack was tolerated, so long as it did not escalate and disturb the general peace Much of this depended on the strength of the central authority This is what underpins the duel We begin to see attempts by civil authority to moderate this sort of thing But self-help was a powerful force in medieval society. It's impossible to track, but I'd say most crimes never made it into the court system England, livery and maintenance It was right and proper for a lord to have dependents whom he supported. What was new in the LMA in England was that lords saw to it that their men all wore the same cap, or an ensign, or a particular color of cloak. Got to the point of very nearly a uniform (remember that armies didn't wear uniforms) This effectively turned clients and supporters into gangs When England was torn by civil wars, these turned into something approaching private armies. The Tudors (and Edward IV) fought hard to regulate livery and maintenance.

Trial and Judgment

Trials

A trial could take almost any form in the Middle Ages: a jury, a jury and a judge, one or more judges, or various trials by ordeal. In most places, though, guilt was determined by a judge or panel of judges. If a jury was involved, its role was akin to that of a modern grand jury, and was concerned mainly with determined whether or not a crime had been committed.

The trial, then, was focused on the judge. Often the court was in a fixed location, and the litigants had to travel to the court in order to put their case. This was particularly true in appeals, which had to go to the royal seat or to the bishop or to Rome. The English were pretty advanced in their legal system, and they had itinerant judges, justices of the peace, who made twice-yearly rounds to every village in their jurisdiction. Instead of travelling, your case had to await the arrival of the judge.

In cities, the situation was different. There were always judges available, and your case went onto a docket and waited its turn. Some cities had different courts specializing in different kinds of cases. In places like northern Italy where the town also ruled over the countryside, the people from the countryside had to bring their cases into the city, just like with manorial courts.

Rules of Evidence

How was guilt determined? We'd be rather appalled. The most common way to clear your name was to get other people to stand up before the judge and declare your innocence. No argument was made, just the swearing of an oath, before God and the community. The assumption was that a criminal could not get twelve or twenty upright citizens to jeopardize their honor to cover up a crime. Not when it was likely that many in the rest of the community knew the truth. This was called the coniuration, literally, "swearing together". More importantly, the failure to gather such oath-swearers was considered significant.

The conjuration might not be as to overall innocence or guilt. It might be to the facts of the case. There might be several oaths sworn over the course of the hearing. The jury was especially helpful here, for it was expected to know the character of the people involved.

Punishment

Canon Law

In general, canon law prescribed penance. In practice, fines too. Also loss of office.

For heresy and other serious crimes, the Church turned over the guilty to the civil authorities. They're the ones who did the executing

Civil Law

In civil law, but not in canon law, culpability resided not only in the individual but also in the group. Punishment might be taken against relatives or against the community.

Execution

Hanging was for common criminals. Beheading was for noble criminals.

Executioners were unehrlich (dishonorable). They were usually civil servants or someone at the manor. Royal executioners held a special place and were almost like personal servants of the king, who took care of them, protected them, let them retire. Society wanted nothing to do with them.

Jails

Cities had them. Not a place of punishment so much as a place to keep dangerous people. Think of the Man in the Iron Mask.

There were some famous jails, such as the Piombo in Venice (the Bridge of Sighs leads to it), Tower of London, or the Bastille. But everyone had them; e.g., in Ferrara.

A jail was certainly not a place for rehabilitation.

Ordinary criminals were not often kept for long periods of time. It wasn't cost effective. It was more effective to kill or maim them. Long-term jail was for the aristocracy.

Fines

Most places had a schedule of fines, and they could be an important source of income. Officials who collected and recorded same.

Exile

Ten years was a common term.

Closely related to exile was confiscation of estates. This was a loss not only to the individual but to the family. Conversely, confiscation of property was an important source of revenue for a monarch or city and was often disbursed back out to the leader's followers as a reward for a successful insurrection, or a successful defense against one. Loss of title normally went along with loss of property.

Mutilation

This is often viewed as one of the "barbaric" aspects of medieval justice. Branding Loss of limb Eyes, ears, nose, tongue Humiliation Pillory or stocks Public whipping Driven through streets or even walk through streets

Probation

Something like probation was also common. A person might be released, perhaps with payment of a fine but perhaps not, and a certain number of individuals vouchsafed for the person's future good behavior. If the person misbehaved, the individuals would bear the fines and could even go to jail. This was something like when a noble was released on parole.

Executions

Hanging was for common criminals Beheading was for nobility Executions were usually public, pour encourager les autres

A real distinction was made between crime the way we usually regard it — arson, robbery, assault — and crimes against the public weal. These included riot, rebellion and treason, but also included such things as hoarding or otherwise manipulating the market for important foodstuffs, heresy, incitement to riot, etc.

There were crimes that belonged mainly to the nobility, such as rebellion. These were handled entirely within the structure of royal and magnate courts.

Changes in law

Regional differences

Divine law was everywhere the same. Natural law was everywhere the same. It was in customary law that differences emerge.

The idea wasn't so much geographic, it was tribal. Law belonged to a people. Like language and diet, it's what defined them as a people.

Biggest exception: urban law. Early medieval town charters served as a model that was copied by (or imposed on) other towns.

Impact of Roman law

Recovery of the Codex Justinianus in the 12th c. Mainly in royal law and ideas about royal authority. Secondarily in the quarrel between monarchs and popes.

But most widely in that the West finally encountered something like a universal law code and had something to compare its own practices and procedures against. From 13th c. onward we see a literature of jurisprudence

Changes during our period

Extension of royal law

Conciliarism

Representative institutions

In the cities, a constant tension between urban corporations (mainly guilds) and the formal government, with various factions jockeying for position. The general tendency, especially by the later 1400s, was the subjugation of indpendent cities under great magnates. This happened in Spain, the Low Countries, and Italy. Eastern Europe, too. But within the Empire, there was no strong central government, and the regional lords were not quite yet strong enough. That would happen in the 16thc and 17thc, but even then, German "home rule" was a strong tradition.