The Past and Present Society

Common Violence: Vengeance and Inquisition in Fourteenth-Century Marseille

Author(s): Daniel Lord Smail
Source: Past & Present, No. 151 (May, 1996), pp. 28-59
Published by: Oxford University Press on behalf of The Past and Present Society
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 COMMONVIOLENCE: VENGEANCE
AND
INQUISITIONIN FOURTEENTH-
CENTURYMARSEILLE*

Medievalviolence has a bad reputation.In the words of a student

essayist, "Mideval [sic] people were violent. Murder during this
period was nothing. Everybody killed someone''.l Yet however
much we might object to this sweeping generalization,the senti-
ment is not anachronistic.Violence was condemnedas harshlyin
the Middle Ages as it is today. Considerthe diatribeof the early
eleventh-centurybishop Burchardof Worms:
Homicidestake place almostdaily amongthe familyof St. Peter, as if
they werewild beasts.The membersof the familyrageagainsteachother
as if they were insaneand kill each other for nothing. . . In the course
of one yearthirty-fiveserfsof St. Peterbelongingto the churchof Worms
have been murderedwithoutprovocation.2
This is violence without reason or justification,comprehensible
only if viewed as insanity.
Burchard's characterizationof violence as a crime without
reason was a little disingenuous, however. Violence was often
linked to vengeance in tne Middle Ages, and vengeance was
something that all could understand,even men of the church.
Whatever Abelard's sentiments about the loss of his manhood,
he was surely not surprisedwhen the kinfolk of the woman he
had seduced and abductedcame to the defence of her honour

* I owe thanksto manyfriendsandcolleaguesfor readinganddiscussingdraftsof

this paper, includingThomasA. Green,RaymondGrew, SarahHarrison,Diane
OwenHughes,EllenPoteet,KathleenM. M. SmailandRaymondVanDam.
1Takenfrom a collectionof quotescompiledfrom studentessaysby a professor
of history:AndersHenriksson,"A Historyof the Past: 'Life Reekedwith Joy' ",
Wilson Quart., vii (1983),p. 168.
2 Burchard of Worms,"Lex familiaeWormatiensisecclesiae",par.30, ed. Ludwig
Wieland(MonumentaGermaniaeHistorica,Leges in Quart., i, Hanover, 1893),
p. 643, trans. Oliver J. Thatcherand EdgarHolmes McNeal,A Source Book for
Mediaeval History (New York, 1905),p. 559. The passagegoes on to prescribethe
punishmentfor homicide(whipping,shavingof the headandbranding)andcontinues
with lengthyprovisionsintendedto hinderthe spreadof a disputebetweenthe kin
of the murdererand of the victim.
 COMMON VIOLENCE 29

and their own, for that matter.3The need for vengeance was as
ancient as the lex talionis; in theology and Christology,the theme
of God's vengeance had only recently, in the tenth and eleventh
centuries, given way to that of his mercy and suffering.4Men of
the church were perfectly aware of the social pressures that
fostered vengeance in the secular world. The mendicantorders
could not have emerged as Europe's foremost peacemakers
without this understanding.5
This being so, we should understandthe rhetoric for what it
was and see vengeance as medieval observerswould have done,
as a practiceworthy of condemnationthat none the less had deep
roots in society and served specific ends. For vengeance does
make sense: order arises from predictabilityof behaviour, and
vengeance carries an aura of inevitability. This, at any rate, is
what modern anthropologistshave been arguing for some time.
As students of the stateless societies of north Africa and the
circum-Mediterraneanregion began to observe in the 1940s and
l950s, the feud and its attendant institutions of peacemaking
compriseda legal system that offered a basis for political order.6
3 Burchard himselfacknowledgedthat in certaincircumstances membersof "the
familyof St. Peter"(thatis to say, the residentsof his diocese)were free to pursue
vengeanceagainstanyforeignerwhohadmurderedone of theirnumber.Fora similar
argumentregardingGregoryof Tours'sequivocalstanceon theblood-feudin Frankish
society, see J. M. Wallace-Hadrill,The Long-Haired Kings and Other Studies in
FrankishHistory (New York, 1962),p. 128.
4 The theme of God's vengeancein the early MiddleAges is one that goes well

beyondthis paper,but in so far as it relatesto blood vengeance,see StephenD.

White,"FeudingandPeace-Making in the Tourainearoundthe Year1100",Traditio,
xlii (1986),p. 201;Jon N. Sutherland,"The Ideaof Revengein LombardSocietyin
the Eighthand Tenth Centuries:The Casesof Paul the Deaconand Liudprandof
Cremona",Speculum,1(1975),pp. 391-410.AlsoverypertinentareR. W. Southern,
The Making of the Middle Ages (New Haven, 1953);Marie-Madeleine Davy, "Le
themede la vengeanceau MoyenAge", in La vengeance:ettudesd'etthnologie, d'histoire,
et de philosophie,4 vols. (Paris,1981-6),iv, GerardCourtois(ed.), La vengeancedans
la penseteoccidentale;LesterK. Little, BenedictineMaledictions: Liturgica!Cursingin
RomanesqueFrance (Ithaca,1993).
5 Two enormouslyvaluablestudies of violence and peacemaking in thirteenth-
centuryItaly have emergedin the last few years: AugustineThompson,Revival
Preachersand Politicsin Thirteenth-CenturyItaly: The GreatDevotionof 1233(Oxford,
1992);JamesM. Powell,Albertanusof Brescia: The Pursuit of Happinessin the Early
ThirteenthCentury(Philadelphia,1992).
6 The classicaccount is E. E. Evans-Pritchard, TheNuer: A Descriptionof the Modes
of Livelihood and Political Institutions of a Nilotic People (Oxford, 1947). Evans-
Pritchard'stheorieson the feud and its constraintswere subsequentlychallengedby
JacobBlack-Michaud, CohesiveForce: Feud in the Mediterraneanand the Middle East
(Oxford, 1975). See also Philip S. Khouryand JosephKostiner(eds.), Tribes and
State Formationin the Middle East (Berkeley,1990).In recentdecades,anthropologists
have turnedaway from the study of the feud, with the exceptionof Christopher
(cont. on p. 30)
30 PAST AND PRESENT NUMBER151
Medieval historians,of course, had long been interestedin both
feuding and peacemaking,7and the argumentsof E. E. Evans-
Pritchardand others concerningthe feud were not slow to cross
from anthropologyto history. A major conduit was an article
published by Max Gluckmanin Past and Presentin 1955 called
"The Peace in the Feud", which developed Evans-Pritchard's
argument that the feud, as it expanded through the grades of
kinship, inevitably compromised people with a foot in both
camps; these people were then activated to quell the discord.8
J. M. Wallace-Hadrillcited Gluckmanapprovinglyin his own
work on the blood-feud in the Merovingianperiod.9The histor-
ical literatureon this and related subjectshas grown apace since
the 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 Anthropologyof Feuding in Montenegroand other Tribal

Societies(Lawrence,1984).The studyof banditryandraiding,bothof whichcan be
actsof revenge,has beenmorevigorous,inspiredin partby E. J. Hobsbawm,Social
Bandits and Primitive Rebels: Studies in Archaic Formsof Social Movementin the 19th
and 20th Centuries(Glencoe,Ill., l9S9): see, for example,MichaelHerzfeld,"Pride
andPerjury:Time andthe Oathin the MountainVillagesof Crete",Man, new ser.,
xxv (1990),pp. 305-22;PaulSantCassia,"Banditry,MythandTerrorin Cyprusand
other Mediterranean Societies",Comp. Studies in Society and Hist., xxxv (1993),
pp. 773-95.
7 Earlierstudies include Heinrich Brunner,Deutsche Rechtsgeschichte(Leipzig,

1906);FrederickPollockand F. W. Maitland,The History of EnglishLaw beforethe

Timeof EdwardI (Cambridge, 1896);F. W. Maitland,"The Lawsof Wales. The
Kindredandthe BloodFeud",in The CollectedPapers of Frederic William Maitland,
ed. H. A. L. Fisher,3 vols. (Cambridge,1911),i, pp. 202-29.See alsoCharlesPetit-
Dutaillis,Documentsnouveauxsur les mzurs populaireset le droit de vengeancedans les
Pays-Bas au XVe siecle(Paris,1908),whichincludescommentary anda briefintroduc-
tion to the largecontemporary bibliography(pp. 39-40); BerthaSurteesPhillpotts,
Kindredand Clan in the Middle Ages and After: A Study in the Sociologyof the Teutonic
Races (New York, 1974; first pubd Cambridge,1913); GabrielMaugain,Moeurs
italiennes de la Renaissance: la vengeance (Paris, 1935);Julius Goebel, Felony and
Misdemeanor:A Study in the History of CriminalLaw (Philadelphia, 1976;firstpubd
New York, 1937);Otto Brunner,"Landn'and Lordship:Structuresof Governancein
Medieval Austria, trans. HowardKaminskyand James Van Horn Melton (Phil-
adelphia,1992;firstpubdBadenbei Wien, 1939).
8 Max Gluckman, "The Peacein the Feud",Past and Present, no. 8 (Nov. 1955),
pp. 1-14.
9Wallace-Hadrill,Long-Haired Kings. For some account of the influenceof
Gluckman'sarticleon subsequentsocial history,see White, "Feudingand Peace-
Makingin the Touraine",p. 258 n. 252.
'?White,"FeudingandPeacemaking in the Touraine",includesa thorough,up-to-
date bibliographical
surveyof recentwork;the most recentstudiesof feudingand
vengeancein the MiddleAges andthe sixteenthcenturyincludeWilliamIanMiller,
Bloodtakingand Peacemaking:Feud, Law, and Society in Saga Iceland(Chicago,1990);
Edward Muir, Mad Blood Stirring: Vendetta and Factions in Friuli during the
Renaissance(Baltimore,1993). For a more generaldiscussionof conflict,together
(cont. on p. 31)
 COMMONVIOLENCE 31

To describe vengeance and peacemakingas components of a

logical and rationalsystem, however, is to suggest that the prac-
tices can be isolated from other legal and judicial currents in
medieval society. This is a very dubious proposition. In recent
years, for example, legal anthropologistshave argued that there
was a good deal of cross-fertilizationbetween native or local legal
systems in Africa and Latin America and those imported by
Europeancolonists.ll Much the same holds true for Europeitself,
where centralized systems of law emerged at a more leisurely
pace. This being so, the most compelling history of vengeance
and peacemakinglies not just in describing these practices as
elementsof an independentand rationalsystem, but also in seeing
how, over the centuries, they interactedwith (or were circum-
scribed by) the developing legal systems of kingdoms and
nation-states.12
The complex legal culture of the city of Marseillein the later
Middle Ages offers profoundinsightsinto these processesof legal
exchange and amalgamation.Italianate in its commercial and
legal culture, French in its family structures and destiny,
Mediterraneanin the breadth of its trade, the great ProvenSal
port provides numerous grounds for comparisons.Blessed with
one of the earliest and richest runs of notarialdocumentationof
any French locale, blessed equallywith rich judicialarchives,the
city offers splendid resources to the historian. Marseille's legal
culture, moreover, is made all the more compellingby the city's
(n. 10 cont. )

with a bibliographyanda programmatic statementregardingconflictas orderrather

than anarchy,see PatrickJ. Geary, "Vivre en conflit dans une Francesans etat:
typologiedes mecanismesde reglementdes conflits(1050-1200)",Annales E.S.C.,
xli (1986), pp. 1107-33;see also BarbaraA. Hanawalt,"CommunityConflictand
SocialControl:CrimeandJusticein the RamseyAbbeyVillages",Mediaeval Studies,
xxxix (1977),pp. 402-23;JohnBossy(ed.), Disputesand Settlements:Lazvand Human
Relations in the West (Cambridge,1983);WendyDavies and Paul Fouracre(eds.),
The Settlementof Disputes in Early Medieval Europe(Cambridge,1986).
11SallyFalkMoore,Social Facts and Fabrications:"Customary"Lazuon Kilimanjaro,
1880-1980 (Cambridge,Mass., 1986);S. F. Moore, "TreatingLaw as Knowledge:
TellingColonialOfficersWhatto Sayto AfricansaboutRunning'TheirOwn'Native
Courts",Law and Society Rev., xxvi (1992), pp. ll-46; LauraNader, Harmony
Ideology: 3tusticeand Control in a Zapotec Mountain Village (Stanford,1990);June
StarrandJaneF. Collier(eds.),History and Powerin the Study of Lazv:New Directions
in Legal Anthropology(Ithaca, 1989); Peter Just, "History,Power, Ideologyand
Culture:CurrentDirectionsin the Anthropologyof Law", Lazv and Society Rev.,
xxvi (1992),pp. 373-411.
12 See OsvaldoRaggio,Faide e parentele: lo stato genovesevisto dalla Fontanab?lona

(Turin, 1990);StephenWilson,Feuding, Conflictand Banditry in Nineteenth-Century

Corsica(Cambridge,1988).
32 PASTAND PRESENT NUMBER 151

unusualpoliticalcircumstances.A fiercelyindependentcommune
for much of the first half of the thirteenthcentury, it had fallen
in 1252 to Charlesof Anjou, king and founderof the expansionist
Angevin dynastyof Naples and count of Provence by virtue of a
strategic marriage.l3Yet in Charles'sown lifetime, the Angevin
dynasty- hobbledby the revolt of Sicilyin 1282andundermined
by the general decay of Mediterraneantrade that followed upon
the heels of the Muslim reconquestof the Levant was falling
swiftly from the heightsto which it hadonce aspired.Preoccupied
with its own intrigues, the crown had little energy to spare for
the governing of Marseille. By the fourteenth century the city
had begun to drift out of the orbit of Naples, quietly seizing the
independenceit had tasted a century before, and thus following
a trajectoryat odds with the processes of centralizationmore
common in the later Middle Ages.l4
One result of this trend is that by the mid-fourteenthcentury,
the city's courts, all of them staSed by judges and functionaries
nominatedby the Angevin crown, lackedthe power to back their
authority. Noble factions emerged, at least one of which was
consideredby an observer to be more powerful than the crown
itself.l5 Given these circumstances,the Angevin-run court of
inquisition, primarilyresponsible for criminal matters, was (or
became) reluctant to prosecute murder and very serious acts of
violence. Instead, judges built existing habits of settlement and
peacemakinginto their own legal edifice, allowingsome measure
of authorityover homicidesto devolve on to kinfolk and friends
of the murdererand of the victim. They did not invariablydo
so; evidence reveals that only those assailants with access to
powerful social networks or kin groups could expect to benefit
from the immunity from prosecutionconferredby the threat of
the feud or of factionalretaliation.The prosecutionof violence
short of murderrevealsa noteworthybattle for rhetoricalcontrol
that pitted defendants eager to display their social connections
against judges interested in counting blows and not much else.
13 For the politicalhistoryof the commune of Marseilleup to the adventof Angevin
rule in 1264,see V.-L. Bourrilly,Essai sur l'histoirepolitiquede Marseille des origines
d 1264 (Aix-en-Provence,1925).
14 On this, see EdouardBaratier, Histoire de Marseille (Toulouse,1973);Georges
Lesage,Marseille angevine(Paris,1950).
lSSee Archives Departementalesdes Bouches-du-Rhone,Marseille(hereafter
A.D.B.R.), IIIB 820, fo. 161V)12 July 1356. This and subsequentcitationsof court
casesgive the dateon whichthe casewas opened.
 COMMON VIOLENCE 33
All these circumstancesreveal the constantdialogue
that existed
between two seemingly distinct ways of handling
and suggest some of the complexities that underlay violence,
the legal
transformationsof late medieval Europe.

II
The court of inquisition was relatively new in
mid-fourteenth-
centuryMarseille.In the earlyyears of the commune,the
judicial
structureof the city had been rudimentary,and authority
over
affairsof violence, including feuding and peacemaking,
lay with
political leaders and peacemakers,not with courts.
Marseille's
statute on homicide, for example, reveals that the
authority to
pursue and punish murderers was assigned to the
rector and
councillorsof the communegl6this authoritymay, however,
been supervisoryrather than judicial, the aim being have
to produce
apeace settlement ratherthan to punish.l7
No court of inquisition,in fact, is mentionedin the
of 1252, called the Statutesof the Peace, which constitution
emerged as part
ofthe peace-treatybetween Charlesof Anjou and
the
city.18 The documentdescribesthe operationsof five conquered
civil courts,
allstaffed by Angevin appointeeswhose terms in
ofEce lasted no
morethan a year. Two lesser courts handled civil
pleas; the
judgesassigned to each, at least in the fourteenth
century, were
drawnfrom a pool of local jurists. A third, called
the palace
court,was the majorcourt of first instance, and behind
it lay the
courtsof first and second appeals. The latter three
courts were
staffedby jurists brought in from outside.19 By
the mid-
l6Les statutsmunicipaux de Marseille,ed. and trans. Regine Pernoud(Monaco,
1949), bk v, ch. 25, p. 178.
17 See Thompson, Revival
Preachersand Politics in
pp.138-9, 200-4. Moregenerally,see StephenD. White, Thirteenth-Century Italy,
amor "Pactum. . . Iegemvincitet
judicium:The Settlementof Disputes by Compromise in
Western France",Amer.ffI LegalHist., xxii (1978), pp. 281-308;Eleventh-Century
Law, Family,andWomen:Tozoard ThomasKuehn,
a LegalAnthropology of RenaissanceItaly (Chicago,
1991),p. 21.
18 One might have expectedto
find mentionof a courtof inquisitionin the first
book of the municipalstatutes,wherecity administration
See,for example,"De officiojudicisPalacii",Statuts is discussed,but does not.
andtrans.Pernoud,bk i, ch. 3, pp. 12-13. municipaux de Marseille,ed.
19Some discussionof the judiciaryin medieval
Marseillecan be found in Raoul
Busquet, "L'organisation de la justice a Marseilleau Moyen-Age",Provincia,
(1922),pp. 1-15;RaymondTeisseire,Histoiredesjuridictions ii
Marseille et despalaisdejusticede
depuisleuroriginejusqu'dnosjours(Paris,1934).
 AND PRESENT 151
NUMBER
34 PAST

fourteenth century, in concert with transformationsin Roman-

over the
canon proceedingsand the law of proof then sweeping
Mediterranean region,20Marseillehaddevelopedwhatthe sources
calla curia inquisitionis. This "court of inquisition"was headed
as the "vicar"
bythe palacejudge, assistedby an officialknown
in the city.
orviguier (vicarius), the chief Angevin representative
announced
Theviguier himself, or someone acting in his name,
held five or six times a year
thesentences in public parlements, mode
ina square at the centre of the city. The inquisitorial law-
to view
allowedfor a more active court, one more willing the
breaking as a crime againstthe state, than had hitherto been
was that once a
case.2lThe essence of the inquisitorialmethod able, on
court was
potentialcrime had come to its attention, the
witnesses.
itsown authority,to initiatean accusationand assemble
in Roman-canon
Ifthe two witnesses necessaryfor a conviction
to extract a
law were lacking, the court could use torture
confessionfrom the suspect.
inquisition
Most of the sentences passed down by the court of
must acknowledge that other
inMarseillewere fines, even if we devoted
show up in records
formsof punishmentusually do not
This much is indicated
almostexclusively to pecuniaryconcerns.
that has
by a single register of fines paid by criminaldefendants 1331.22
survivedfrom December 1330 to the end of November
in five or
(Table.) Each of the entries gives a brief description in full
of the sentence. Given here
ten lines of the main features
and Englandin theAncien
20 JohnA. Langbein,Tortureand the Law of Proof: Europe
Re'gime(Chicago,1977).
21 On criminalprocedurein
Romanlaw, see A. Esmein,Histoire de la proce'dure
le XIIIe siecle
de la proce'dureinquisitoire,depais
criminelleen France, et spetcialement
ProsecutingCrime in the Renaissance:
jusqu'anos jours (Paris, 1882);JohnLangbein,
Germany, France (Cambridge, Mass., 1974); SarahRubinBlanshei,"Crime
England,
in Medieval Bologna", il Social Hist., xvi (1982),pp. 121-38;
andLawEnforcement et criminalite'dans la region
JacquesChiffoleau,Les justices du pape: de'linquance
1984); Laura Ikins Stern, The CriminalLazu
d'Avignonau quatorziemesiecle (Paris, 1994); John K. Brackett,
System of Medieval and RenaissanceFlorence (Baltimore,
Late Renaissance Florence, 1537-1609 (Cambridge, 1992).
Criminalffusticeand Crime in
B 1940, fos. 74r-139V.The list was itself part of a yearlycompilation
22 A.D.B.R., royal
of royalrevenuesand financialactivityin the city madeby the clavaire, the
such registers,A.D.B.R., B
officerin chargeof the city's finances.Only two other century;regrettably,in neither
1941and 1942,havesurvivedfor the mid-fourteenthsentences.The actsof violence
of them did the clavaire includereceipts from criminal
year,sincethe registerincludes
recordedin the registerdo not all belongto a single had to defer paymenton
receiptsfor fines levied in past years (some defendants
assume that the extrareceiptsfor suchfines
accountof poverty).We can reasonably remained unpaid.
werebalancedby thoseleviedin 1331that themselves
 COMMON VIOLENCE 35

TABLE
PROFILEOF CRIMINALPROSECUTIONS IN MARSEILLE1330-1331*
Type of Incident No. %
Violenceor threatswith weapons 289 58.7
Insults 108 22.0
Verbalthreatsandotherconfrontations 24 4.9
Theft 22 4.5
Civilinfractions 20 4.1
Bearingillegalarms 17 3.5
Unidentifiable 12 2.4
Total 492 100.1
*Source:ArchivesDepartementales Marseille,B 1940,fos.
des Bouches-du-Rhone,
76r-139r.The figuresin the thirdcolumnhavebeenroundedup to the next per cent.

is a typical sentence, from 22 February1331: "On the same day:

concerningGuilhemAlexi, condemnedto pay a fine of 20 shillings
by the said lord viguier on the year and day above, since, with
malice and furious at heart, he threw Raymon de Tholosa to the
ground on a public street".23
The registercontains492 entries;of these, 289 were for crimes
of violence or the threat of violence of one sort or another
(including two rapes). Most of these involved relatively minor
wounds, or even nothing more than the drawingof a knife; fines
were levied averaginga little more than 30 shillings, equivalent
to eight days' wages for an agriculturallabourer. Many of the
remainingfines were imposed for acts of a similarly confronta-
tionalnature,such as bearingillegalarms(17) and makingthreats
(15). Fines for insults were especially numerous, totalling 108.
In sum, confrontationsof various kinds account for 438 of the
492 entries. The remainingentries concern non-confrontational
criminalacts, including22 thefts and 20 civil infractions,such as
selling flour illegally or going out at night without a lantern.24
Sexual delicts and blasphemyare utterly absent from the list.
This profile, thin in the secret crimes of the householdand in
the sphere of morals,is at odds with the criminalprofilesof other
late medieval cities drawn from similar sources. In nearby
Avignon,as in Paris, courtslevied numerousfines for blasphemy,
sexual delicts and thefts.25The same holds true for Florence in
23A.D.B.R., B 1940,fo. 87r,22 Feb. 1331.
24The crimein the remainingtwelvecasescannotbe identified.
25 Chiffoleau, ffusticesdu pape; BronislawGeremek,The Margins of Society in Late
Medieval Paris, trans.JeanBirrell(Cambridge,1987).
36 PAST AND PRESENT NUMBER 151

the fourteenth and fifteenth centuries.26Marseille'sinquisition,

by comparison, was far more interested in prosecuting public
confrontations.
Logically, this kind of profile would emerge if the inquisition
prosecutedonly those cases in which malefactorshad been cap-
tured in flagrante delicto. To capture malefactors,the court of
inquisitionhad developed a rudimentarypolice force led by the
sub-viguier and sometimes by the viguierhimself.27Transcripts
of judicialinquisitionsfound in appealscourt registersreveal that
in cases involving violence, the sub-viguier and his familiaoften
arrived while a fight was still under way, usually called to the
scene by the neighbours.As a result, an officialof the court was
able to seize the malefactorswhile the blood was still fresh on
the knife or the insult still lingeringin the ears of the witnesses.
The justice that resulted from this was summary:defendantsin
the cases I have read were never allowed to present a defence.
The defence - this seems unique to Marseille was reserved
for the appeal.
In no inquisitiontranscriptfrom Marseilleis there any indica-
tion that the court proceededagainstcriminaldefendantsmerely
on the basisof a reportor a rumour,as courtsof inquisitionoften
did in other cities. Several victims of theft, vandalism and
threateninglanguagewere forced to initiatetheir own accusations
and assembletheir own proofs.28This preferencefor cases where
the malefactorswere capturedinflagrante reveals an inquisition
unwilling to commit time and resources to the prosecution of
crime, unwillingto pursue cases involving secretivebehaviouror
26 See the discussionin Stern, Criminal Law Systemof Medievaland Renaissance
Florence,p. 214.
27 Recordsshow that these two men were aidedby groupsof men calledfamiliae,
privateservantsbelongingto theirhouseholds.The role of the sub-viguierin appre-
hendingmalefactorsis evidenteverywherein the appealsagainstcriminalsentences
found in the appellatecourt transcripts,A.D.B.R., IIIB 800 onwards.These two
officialswere also empoweredto enlist ordinarycitizensas deputiesin momentsof
crisis;see, for example,A.D.B.R., IIIB 819, fo. 4rnJune 1355 (?: monthillegible),
testimonyof Guilhemde Serviers.This entireregisteris devotedto severalappellate
hearingsin the casesof men accusedof involvementin a streetfight. One of their
counter-arguments was that the city's viguierhad in effect authorizedthe men to
follow him with any armsthey could find in an attemptto apprehenda murderer
and preventhis deathat the handsof his enemies.On inquisitorialprocedures,see
Brackett,Criminal 3tustice
andCrimein LateRenaissance Florence,pp. 57-68.
28 For several examples,see A.D.B.R., IIIB 41, fos. 224r-234r,25 Aug. 1340
(vandalismof a vineyard);ibid.,fos. 150V-lSlr,2 Aug. 1340,andIIIB66, fos. 14r-28r,
24 Mar.1362(theft);IIIB62, fos. 183r-184r, 27 May 1360,andArchivesMunicipales
de la Ville de Marseille(hereafterA.M.), FF 519, fo. 61r-V)9 Aug. 1341(threats).
 COMMON VIOLENCE 37

states of mind. This, in other words, was an inquisitionthat dealt

in open-and-shut cases, where the facts were obvious to all;
appeals may have been limited in number precisely because the
weight of incriminatingevidence was so great. This reluctanceto
tackle more difficult cases is one indication of the court's lack
of power.
What is missingfrom the profileof fines assessedby Marseille's
inquisition, therefore, is just as informativeas what is present.
This is especiallytrue when we consideranotherclass of criminal
behaviour that is conspicuous by its absence, namely serious
woundings.In the 289 acts involving violence or the threatof it,
we find only 17 where blood was shed. There are no truly
debilitating wounds such as amputations. Most surprising, the
list includes no fines paid for homicides. In the entire register
only one reference to a homicide can be found: during a street
battle between Johanet Guis and Durant de Batuto, Durant was
grievously wounded;he died a short while later. A terse account
of the incident was given to explain why a 6-pound fine29had
been assessedagainsteleven-year-oldGuilhemGuis, the younger
brother of the assailant.The lad had emerged from his father's
house towardsthe end of the battle; knife drawn, he had chased
the wounded man down the street.30His brother, the actual
assailant,does not appearin the record.
Why this silence regarding homicide? Jacques Chiffoleau,
observing a similar phenomenon in papal Avignon in the four-
teenth century,has arguedthat murdererswere punishedcorpor-
ally; and corporalpunishmentsdo not find their way into financial
records. But Chiffoleaualso observes that murderersusually fled
the city before they could be captured;3lmoreover, the Avignon
court did not alwaysproceedagainstmurderersand other violent
offenders where proof of a settlement was offered.32Historians
and anthropologistsof law consideringsimilar forms of judicial
restrainthave arguedthat a judicialdecisionis an artificialending

29 In what follows,I have translated the Latinwordslibri and solidi as "pounds"

and "shillings"respectively.On Marseille'scurrency,see H. Rolland,Monnaie des
comtesde Provence,XIIe-XVe siecles(Paris,1956).
30 A.D.B.R., B 1940, fo. 76r-V) 6 Dec. 1330. If his brotherJohanetwas finedfor
the homicide,either the fine was still unpaidor an appealhad been made to a
highercourt.
31 Chiffoleau, 3tusticesdu pape, p. 148.
32 Ibid., pp. 222-3;see alsoStern,CriminalLaw System of Medieval and Renaissance
Florence,pp. 27-8.
38 PAST AND PRESENT NUMBER 151

that does not necessarily resolve the tensions in a dispute.33

Murderis the oSence most likely to generatebad blood between
rival familiesor groups. In the uncertainpoliticalclimateof mid-
fourteenth-centuryMarseille, the court of inquisitionwas more
interestedin establishingpeace thanin tryingto stampits tenuous
authority on a potentially belligerent and independent-minded
population.
As it happens, it is not entirely correctto say that the court of
inquisitiondid not prosecute homicides. Records reveal that the
court could pursue various lesser charges should it choose to
move against murderers. The possibilities included infractions
like bearingillegal arms, congregatingin large groups, and going
about the city by night. To take an example, fines of up to 100
shillings were assessed against several agriculturallabourersand
caulkerswho had participatedin a murderon 20 May 1342.34In
addition, murdererswho fled the city could be accused of the
crimeand then, if they failed to respondto a seriesof summonses,
be chargedfor contumacy.In one particularlywell-documented
case involvinga memberof the nobility, the squireAmiel Bonafos
had participatedin the murder of his bitter enemy, Peire de
Jerusalem,in May 1356.35Following the murder, Amiel hid in
the house of his infirm father; several nights later, he fled the
city on horsebackwith a companion,seeking refuge in the coun-
tryside.36A trial was initiated by the dead man's uncle,37and
when Amiel failed to answer the summons, he was sentenced to
pay a staggering fine of 2,000 pounds simply for contumacy.38
33 MarvinB. Becker,"Changing Patternsof Violenceand Justicein Fourteenth-
and Fifteenth-Century Florence",Comp.Studiesin Societyand Hist., xviii (1976),
p. 282. See also the useful interdisciplinary
discussionin Kuehn,Lazv,Family,and
Women, pp. 19-21.
34 A.D.B.R., IIIB808, fos. 123r-159r,23 July1342,andsee fo. 137rfora description
of the statutesandproclamations ( preconisationes)
thatthe menoffendedagainst.The
accusationgoes on to relatethat the men had gatheredat a friend'shouseintending
to murderUguo Robert,but the murderitself was ancillaryto the specificcharges.
Accordingto testimonygivenon behalfof the defendants,the samegroupof labourers
and caulkershadbeen involvedin the murderof a butchernamedAntoniRaynaut,
brotherof a close friendof the victimin this case:ibid.,fos. 127V-131v. This series
of murdersbearssomeof the characteristics of a feud (althoughone groupseemsto
be doing all the killing), but the judgehad little interestin the subjectand never
probedinto the case'santecedents,leavingus in the dark.
35 A.D.B.R., IIIB820, fos. 8r-103V. The appealitselfopenedon 7 July 1356.
36 From the way the case develops,it is clearthat the Jerusalem militiawas a far
greaterthreatto Amielthanthe crown'spoliceforcewas.
37 A.D.B.R., IIIB820, fo. 8V.
38 Ibid, fo. 8r-
 COMMON VIOLENCE 39

His allies, the Martinbrothers,fared worse: each was fined 4,000

pounds, and the prime instigator, Peire Martin, was fined an
additional 3,000.39 To collect such fines, the court could and
sometimes did seize the exiled man's property.40Technically
speaking, the fine was levied for a violation of procedure (con-
tumacy), not for murder.
Peacebreaking was a third category under which violent
oSenders could be prosecuted. It was clearly understoodby all
concernedthat peacebreakingwas a heinous crime more ser-
ious, in fact, than the catalysingoffence.4l From the transcripts
of an inquisitioninto a small war between two elite factions that
took place on or about 22 July 1351, we learn that fines of up to
200 pounds were levied against the participantsfor breakingan
existing peace.42As Thomas Kuehn has argued with regard to
acts of arbitrationmore generally, this strategy of prosecution
worked becauseinstrumentsof peace were civil contracts:peace-
breaking could be prosecuted not as murder, but as breach of
contract.43

III
Yet these were indirect ways of prosecuting acts of grievous
violence. Insteadof forceful resolution,we find a discretioncon-
sistent with the inquisition'sreluctanceto prosecutecriminalsnot
39 Ibid, fos. lr-6V.
40 That is, if the exiled man had any property.This was a delicatepoint. In the
case of Amiel Bonafos,the procurerdeclaredthat Amiel was in patria potestas: his
fatherwas his legal administrator (ibid., fo. 8V).Technically,then, Amielpossessed
no propertyin his own name.A Marseillestatute(De parentibusprofiliis, et e converso,
non multandis)makesit clearthata fathercouldbe held liablefor his son'scrimes
but only afterthe father'sown deathor entryinto a monastery:Statuts municipaux
de Marseille, ed. and trans.Pernoud,bk v, ch. 28, p. 179. I think it unlikelythat
Marseille'scourthadthe institutionalmemoryto carryout this threat,assumingthe
fatherlived for at leastseveralyearsafterthe event.
41 The Italiancommunes alsocondemnedpeacebreaking in harshterms:Thompson,
Revival Preachersand Politics in Thirteenth-CenturyItaly, p. 176 and ch. 7.
42 See A.D.B.R., IIIB811, fos. lfr-101V) appealheard12 Dec. 1351.Althoughthe
recordof this particularcase is fragmentary and does not explainthe reasonfor the
fine, we know from anothercase that a peace had been set up betweenthe rival
partieson 24 March1350,andthe finesprobablyaroseas a resultof thispeacehaving
been broken.Extantpeaceacts usuallystipulatea 100-poundfine in the event of a
transgression.The small war of 1351 was itself followedimmediatelyby another
peace dated 26 July 1351. Copiesof both acts of peace are includedin the appeal
arisingfromthe murderof Peirede Jerusalem; forthe transcript(Tenorinstrumentorum
productorumsuperpace), see A.D.B.R., IIIB820, fos. 16r-18V) 7 July 1356.
43 Kuehn,Law, Family, and Women,p. 69.
40 PAST AND PRESENT NUMBER 151

arrested in ffagrante. It was a discretion that does not seem in

keepingwith its age, to judgeby the violent retributionsdescribed
in the statute-booksof some thirteenth- and fourteenth-century
Italian and ProvenSal communes. Men who murder shall be
decapitated, declared a Veronese statute, and women burnt to
death.44The Italian commune of Apricale, more imaginatively,
buried its murderersalive.45"If he can be seized, he shall die",
observe the statutes of Cuneo simply.46
Yet the violent languageof these statutes obscures mitigating
circumstances,here as elsewherein Europe.47Severalstatuteslist
self-defenceas a reasonableexcuse, but the law could be mitigated
in anotherway. In the civic world of MediterraneanEurope, the
authorityof any given commune extended only so far, and the
legal geographyof the region consisted of an untidy patchwork
of uncoordinatedjurisdictions.Each commune'sjurisdictionwas
activatedonly when officers of the peace were able to seize the
murderer.Beyond the bordersof the communelay the shadowy
world of exile and banishment.48Whether the police force could
seize oSenders before they reached this world depended on its
efficiencyand, for that matter, on the eagernessof the commune
to get involved. We may assume that communes were eager to
exercise jurisdiction the threats directed at murderersgive
every indicationthat homicide was perceived as a crime against
the whole commune,not just the family of the victim but was
this really the case? In Marseille, as we shall see, it was not.
Murdererswere frequently allowed to escape; even when they
were caught, their subsequent incarceration,remarkably, was
sometimestreatedas if it were the equivalentof exile or sanctuary.
To understandwhy, it is important to realize that exile and
sanctuary,in Italy as in southern France, did not mean the end
of some sort of legal jurisdictionover the case. Instead, jurisdic-
tion over the absent malefactorwas in theory transferredfrom

Gli statutiVeronesi
44 del 1276,ed. GinoSandri(Venice,1940),p. 410.
Gli antichistatutidi Apricale(1267-1430),ed. GirolamoRossi (Bordighera,
45
1986),p. 21.
46 Corpus statutorumcomunis Cunei,1380,ed. PieroCamilla(Cuneo,[1970]),p. 220.
47 ThomasA. Green, Verdictaccording to Conscience:
Perspectives
on the English
CriminalTrialry, 1200-1800(Chicago,1985);DouglasHay et al., Albion'sFatal
Tree:CrimeandSocietyin Eighteenth-Century England(New York,1975).
48 On exile, see RandolphStarn,Contrary Commonwealth: The Themeof Exilein
Medievaland Renaissance Italy (Berkeley,1982);on banditry,see Raggio,Faidee
parentele,esp. ch. 8.
 COMMON VIOLENCE 41

the commune to the kin of the victim.49If a murderercould not

be 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 the
victim.50 The same principle also held for cases other than
murder:
It is declaredthat if anyonefrom Cuneoor its jurisdictionhas sought
exile or has been exiled for any crime,he will not be allowedto return
nor shouldhe do so-even if he has paid the fine for the offence-
unlesshe firstmakesan agreementwith his victimor his heirs.5l
A similar passage is found in the statutes of Acqui,52 and
Apricale'sstate more terselythat the murdererwill be perpetually
exiled unless the heirs of the victim permit his return.53The
statutesof both Veronaand Nice indicatethat exile was a common
option and that a peace with the kin was a part of the ensuing
judicialprocess.54With any luck, an exiled man could be back in
town within a few years of a murder,restoredin both reputation
and wealth and sometimes even more. Five years after his
involvement in the murder of Peire de Jerusalem,not only had
Amiel Bonafos returned to his native city, he had also been
appointed to one of the highest council offices in Marseille,that
of syndic.
In a very curious way, the judicialcompetenciesof court and
kin in Italy and southern France hinged not on abstract legal
principles but rather on the location of the murderer.This was
a product of a complex set of circumstancesinvolving the nature
of the police force, the quality of the murderer'snetworks of
support outside the city and the nature of the crime. The harsh-
ness of statutorylaw, therefore,could be mitigatedwhenever the
murdererescaped or was allowed to escape. In such cases, the
authority of the commune derogatedin favour of kin. Without
clear evidence that executions were practised systematicallyin

49 See, for example,Thompson, Revival Preachersand Politics in Thirteenth-Century

Italy, pp. 143-5;he baseshis argumentson statutorylaw.
50CorpusstatutorumcomunisCunei, 1380, ed. Camilla,p. 221.
51Ibid.
52Statuta vetera civitatis Aquis, ed. GiuseppeFornarese(Alessandria,
1905),p. 25.
53Antichistatuti de Apricale (1267-1340), ed. Rossi,p. 21.
54Statuti Veronesidel 1276, ed. Sandri,pp. 410-15; for the statutesof Nice, see
"Statutaet privilegiacivitatisNiciae",ed. KarlAlbert(Monumenta
HistoriaePatriae,
LegesMunicipales,i, Turin, 1838),col. 61.
42 PAST AND PRESENT NUMBER 151

specific medieval communes, we cannot assume a priorithat the

law was always carriedout with the promisedharshness.
Marseille'slaw concerninghomicideand exile mirrorsthose of
the Italiancommunes. Redacted in the early thirteenthcentury,
during the city's drive for communalindependence,Marseille's
statute-book was based on a twelfth-century model borrowed
from Pisa. The peace-treatyof 1252, in turn, absorbedthe book
of statutes virtually intact. Because the council of Marseillehad
only limited legislative powers after 1252, and because the
Angevins themselves were too preoccupied to attempt judicial
reforms, the statutes underwent no changes in the century that
followed; comparedwith the statutesof other fourteenth-century
communes, which periodicallyunderwentrevision and concord-
ance, those of mid-fourteenth-centuryMarseillewere manifestly
out of date.
The statute that governed homicides and other assaults
resulting in death, Qualiter homicidiapuniri debeant ("How
Homicides Should Be Punished"), ran as follows:
Sinceit is a matterof greatimportanceto the commongood that crimes,
especiallyillicithomicides,shouldnot go unpunished,by the authorityof
this statutewe ordain. . . thatif anyoneshallhaveassaulted,or wounded,
or mortallyinjuredanotherpersonin Marseilleor its territory. . . [and]
if the man who did such thingsshouldhave fled from Marseille. . . the
criminalwill never,underany circumstances, be allowedor permittedto
returnto Marseilleor its suburbs(suburbia)at any futuretime unlesshe
will have first made compositionfor the crime with four or five of the
closest relativesof the murderedor dead man, and unless, at the same
time, he, or anotherin his place,will havefirstpaidthe finelelriedagainst
him for the act or crimeby the rectoror councillorsor the communeof
Marseille. . .
. . . similarly,if the murderershallbe foundor canbe foundanywhere
within Marseilleor its territory,he will be taken by the rector or the
councillorsof Marseille,or by othersactingfor them,by forceif necessary,
and the rector and councillorswill then do with him what they think
oughtto be done (gueeis videbunturfacienda) . . .55
The text speaks of a public concern (Scjum rei publiceintersit
plurimum. . .), but the early origins of the statute are revealedin
the failureto define preciselywhat the communecould do to the
person of the capturedmurderer.The commune was evidently
allowed to levy a fine a right, to judge by the register of fines
paid, that does not seem to have been used often. The text of
the statute, however, is dominatednot by this matter, but rather
by how the rectorand councillorsshouldproceedonce a murderer
55 Statutsmunicipaux
de Marseille,ed. andtrans.Pernoud,bk v, ch. 25, p. 178.
 COMMON VIOLENCE 43

has exiled himself. The statute, moreover, is careful to spell out

the nature of composition and the grounds on which the exile
will be allowed to return, officiallydelegatinga degree of power
over the criminal's fate to the four or five closest relatives
mentionedin the statute.
Once the murderer had gone into exile, the system of
peacemakingand arbitrationcame into play. There is plenty of
indirect evidence for this system in existing court cases from
fourteenth-centuryMarseille.In July 1339, for example,a dispute
between two cutlers climaxed with some regrettable words
regarding the paternity of the eventual plaintiff, Johan Suziol.
Johan's suit for defamation,asking for 100 pounds in damages,
was withdrawn when he subsequently submitted evidence that
an agreementhad been reached:to continue the suit would have
been to disruptthe fragilepeace.56Casesthat ended in arbitration
are commonenough 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-courttrials over the period
between 1337 and 1362 included the testimony of even one
witness.57
As it happens, we have more authoritativeevidence for peace
settlements from the notarial archives between 1337 and 1362:
five notarizedsettlementsfor homicidesand three further settle-
ments for grievous wounds short of homicide. These legal
drafts,58variouslyentitledinstrumentum pacis,compositio,concordia
andfaciendumpacis, can be found in some of the seventy notarial
casebooks59extant in Marseille from the middle quarter of the
fourteenthcentury,alongsidedotalacts, testaments,loans, inden-
tures to apprenticeshipand dozens of other contractsoffered by
the Romanlegal system of MediterraneanEurope.All eight peace
acts involve men and women of middlingor low status:labourers,
carpenters, butchers, bakers, furriers; notarial casebooks were
probablyconsideredtoo vulgar for the peace acts of the nobility.
As with all notarizedacts, peace acts follow standardlegal 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 trialsfor theseyearsare foundin A.D.B.R., IIIB33-66.
58 By the thirteenthcentury,Romanlawcourtsin Marseille(and elsewhere)had
come to recognizethese drafts as legally bindingin most circumstances: see the
discussionin Business Contracts of Medieval Provence: Selected "Notulae"from the
Cartularyof GiraudAmalric of Marseilles, 1248, ed. JohnPryor(Toronto,1981).
59Boundregisterscontainingdozensor hundredsof suchacts.
 AND PRESENT 151
NUMBER
44 PAST

legal Since the extant casebooksrepresentonly

responsibilities.60
settlements
afifteenth of the original total, it is clear that such
these numbers suggest: had all such
weremore common than
casebooks survived from the years 1337 to 1362 there should
havebeen around a thousand they would probably have
recorded as many as seventy-five settlementsarising from mur-
ders over the entire period.6lThe existence of the eight surviving
homicides
casesshows that peace settlements for some or most
significance
andfor a few grave injuriesplayed a role of no small
inthe legal system of mid-fourteenth-century Marseille.
a clause
The typical peace formula, significantly, included
would be
declaringthat all court actions on behalf of the victim been
had
dropped.In one case, Isnart Bayle, whose kinsman
murderer,
murdered,made the following contract with the
GuilhemBascul:
IsnartBayle,in the namesof those above and for himselfand his heirs
and successorsand friendswhoever they may be, with solemnguarantees
promised
intervenientibus)
(stipulationibus that he wouldnot proceedfur-
therwiththe indictments made on theseoccasions by himselfor by others.
Nor wouldhe drawup othersanew, nor consent that any be drawnup,
nor will any of those on his side even attempt to bring [a suit] against
or in any
GuilhemBasculby any court,judge,or chief, by the inquisition
otherway . . .62
probablythe
The inclusionof this clause in the peace formulais
the register
majorreason why no remits for homicide appearin
of receipts from the year 1331.63
three or
The peace acts range in length from half a page to
a preamble
four pages. The unabbreviatedcases all begin with
Christiandesire for peace and of the agency of
that speaksof the
Law, Family,and
A lengthydiscussionof peace acts can be found in Kuehn,
60
See also Petit-Dutaillis,Documents nouveaux sur les mzurspopulaires,esp.
Women. Justicein Fourteenth-and
pp. 54-88; Becker,"ChangingPatternsof Violenceand Feuding, ConflictandBanditry
Fifteenth-Century Florence", esp. pp. 282-5; Wilson,
Corsica,ch. 9, "Conciliationand Peacemaking"; Thompson,
in Nineteenth-Century Italy,pp. 136-78.
RevivalPreachers andPoliticsin Thirteenth-Century
61 For an overviewof the problem
of survival,see LouisStouff,"Les registresde
notairesd'Arles(debut XIVe siecle- 1460):quelquesproblemesposesparl'utilisation
des archivesnotariales",Provence xxv (1975), pp. 307-10. The figureof
historique,
the averageyearbetween
one in fifteenis basedon my own calculations Marseille:
for
notarialcasebooks,and a
1337 and 1362 was coveredby slightlymore than twowere licensedto practisein
survivingdocumentrevealsthat thirtyor morenotaries
any given year:A.M., FF 166, fos. 6V-llv) Autumn1350.
62 A M II 42, fo. 60V)10 Apr.
1349.
63 This did not, I think,automatically
preventthe inquisitionfromproceedingwith
othercharges,suchas bearingarms.
 COMMON VIOLENCE 45

the Devil in spawninghatred. In one of these acts, for example,

we find that AdalaciaRogiera,the wife of the bakerJacmeRogier,
was brought by the Devil's instigationto offer many insults and
contumaciouswords against Antoni Bort. Antoni was so moved
by wrath that he drew his sword and struck her on the head,
killing her.64The eSect of this argumentwas to treat her death
as the resultof Antoni'sdisablingand blindingrage regrettable,
but not homicidal.65Following a very brief statementof who had
murderedor wounded whom, the formulaproceedsto a descrip-
tion of the bad blood existing between the murderer(and some-
times his kinfolk) and the kin of the victim, between two and
four of whom are named. When Guilhem Garrigaskilled Uguo
Clalpin, he and his uncle Andrieu made peace with Uguo's two
cousins, Johan Bernis and Johan Bonaut, with Johan'sson Peire,
and with two of the victim's maternal aunts (amicae), Huga
Romeaand Resens Berengiera.66 Similarly,the carpenterGuilhem
Bascul, who had killed Guilhem Turel, made peace with the
butcherIsnartBayle, LaurensGartin,and the rest of his victim's
friends, relatives and affines.67A peace is made and the kin of
the victim are then sternly chargedwith the duty of keeping it;
the force of these acts is generally directed against the victim's
kin and not the murderer.Arbiters,where named, were typically
noblemen or other members of the patriciate.For example, the
two noblemen Montoliu de Montoliu and Aragon de Rabastenc,
assisted by two men of common status, helped arrangea peace
between the labourerGuilhemJohanand his kinsmenon the one
hand, and the victim Peire Tallarone (whom Guilhem had
wounded on the arm) and Peire's kinsmen on the other.68In
some cases, other noblemen, mendicant friars, or jurists made
their presencefelt as witnesses to the peace. The role of mendic-
ants and other religious is especiallynoticeablein the five peace
acts arising from murders: all were redacted in the house of a
religious order. The three woundings, by contrast, were settled
in the notary'shouse or in houses belongingto one of the parties
involved.
64 A.D.B.R., 381E 79, fos. 46V-47r)
9 June 1353.
65 For a discussionof argumentssuch as this, see NatalieZemonDavis, Fictionin
the Archives:PardonTalesand their Tellersin 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., 381E79, fo. 125V) 8 Dec. 1353.
46 PAST AND PRESENT NUMBER15 1

Rarely were the results of arbitrationgiven in these acts,

althoughwe must assumethat some form of arbitrationhad been
undertakenprior to the making of any given act. Sometimesan
exchangeof the kiss of peace was noted. No money composition
was ever expressly mentioned, although we can assume that a
payment often took place. The labourer Pons Gasin, killer of
AlasaciaBorgona, concluded a peace with her brother and two
sons; in a separateact made on the same day, the murderergave
the daughterof his cousin in marriageto one of the victim's sons,
adding a vineyard to the girl's dowry. The dotal act expressly
stated that the marriagewas made to seal the peace and avoid
future danger ( pro pacemhabendaet futurumpericulumezvitanda),
and the vineyardwas clearly part of the settlement.69
An exiled murderer, of course, could not be present when a
settlement was being arranged he only returned to approve
the pact and it was up to relatives and friends to arrangea
peace. Notarized peace settlementsdo not describe this process,
and we must turn to court records to see how it worked. Early
in the year 1353, for example, Lois Orlet had cut off the left
hand of Johan Robert during a fight.70On 2 September 1353,
JohanbroughtLois to court not to accuse him of the amputa-
tion, but instead to complain about his failure to fulfil certain
conditions of the peace accord that had terminatedthe dispute:
the peace had included a requirement that Lois pay for the
medical care of his victim.71The testimonyreveals that Lois had
sought sanctuaryin the monasteryof St Victor immediatelyfol-
lowing the fight;the peace had been arrangedby two city council-
lors, Guilhem Blanc and the nobleman Johan de Sant Jacme.
Lois's unnamedwife was also involved in makingpeace; she had
sent medicine to the wounded man, and offered him 100 pounds
by way of settlement.
Two casesof capitalimportanceshow that even when the court
seized the murdererbefore he could seek sanctuaryor make his
escape from the city, it treated incarcerationas exile. One case
from the year 1362 reveals that the butcher Anhellon Fabre, a
man of some standingand good connectionsin the community,

20r-2
69 A.D.B.R., 355E 290, fos. lr,4 Apr. 1355.
70 A.D.B.R., IIIB52) Sept. 1353.
fos. 12r-20r,2
71 Johan'scomplaintwasnot uncommon;we findsimilaraccusationslodgedin two
othercases:A.M., FF 518)fos. 106r-107V)
14Nov. 1340;A.M., FF 520o fos. 88r-102
11 July 1342.
 COMMON VIOLENCE 47

had been imprisoned immediately after he murdered his wife,

Dulciana.72Those working on his behalf successfully made a
peace with the agnates and cognates of his late wife, however,
and Anhellon was released from prison. In November, he had
the audacity to come before the court to complain that his late
wife's relatives were now harassinghim, despite the peace. In a
similarcase, from February1353, the cutler Nicolau Garnierwas
imprisonedfor the murder of a goldsmith, Antoni Jardin.73His
relatives went to some lengths to search out the three known
kinsmen of his victim, Guilhem Cauderie, Bernat Bonaut and
Jacme Bonaut, and made peace with them. None the less, the
court refused to release the murdereras he expected, becauseno
peace had been made with the victim's widow, Johaneta and
it was Johaneta'sresistancethat was keeping the man in prison.74
In both these cases, the courts treatedincarcerationas exile or
sanctuary.The practice may have been more common than the
number of cases suggests: we hear of these two only because
difficultiesarose during or after the process of arbitration.The
very existence of the practice,of the equivalencydrawnbetween
incarcerationand exile, reveals the degree to which the court of
inquisitionwas willing to forgo its jurisdictionover violent crime
in favour of the catharsisof the peace settlement. To judge by
this practice, the ability of a murdererto escape the jurisdiction
of the court, in Marseille or anywhere, should not be taken as
evidence for the inadequaciesof a medieval city's police force.
Instead, exile was part and parcel of an untidy but reasonably
eSective system for prosecuting and punishing homicide and
other casesof violent crime, cobbledtogetherfrom Roman-canon
law and from local legal traditionsand habits of peacemaking.
This system, it seems, had become so widely acceptedin mid-
fourteenth-centuryMarseillethat actual revenge killing, at least
among people of common status, was relatively rare. There are,
in any event, no clear and unambiguousexamples in the few
survivingcourt recordsinvolving homicidebetween commoners,

73r)27Nov. 1362.
72 A.D.B.R., IIIB64, fo.
196r-203r,
73 A.D.B.R., IIIB50, fos. 12Feb. 1353.
74 The involvementof wives in feuding,either indirectlythroughgoadingtheir
malerelativesto takerevenge,or directlyin vengeanceitself, is commonin societies
that practisethe feud: see, for example,Boehm, Blood Revenge, pp.55-6;Miller,
Bloodtakingand Peacemaking,pp.212-14; Wilson,Feuding, Conflict and Banditry in
Nineteenth-CenturyCorsica,pp.220-1.
48 PASTAND PRESENT NUMBER 151

although several cases hint at the possibility,75and the case of

Julian Marquet, discussed below, involves an assault motivated
by a desire for revenge. The feuding nobility was another
matter entirely; mid-fourteenth-centuryrecords reveal a series
of revenge killings involving two noble factions that stretches
back at least to 1309, and noble defendants, when prosecuted,
conspicuously used the logic of vengeance in defending their
actions.76Yet althoughcommonfolk victimizedby violence were
more likely to pursue a peace settlementthan were nobles, it was
the threat of hatred and retaliation that gave the assailant an
incentive to arbitrate.The evident potency of this threat shows
that the practiceof revengekillingwas not quite moribundamong
commoners.

IV
Delicate handling by the court may not have been everyone's
prerogative.And certainlygenuine exile was not availableto all.
It took resourcesto escape the city for the countryside:friends
or kin in the city willing to undertakelegal battles to preserve
the abandonedestate 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 benefit
from it.
In consideringwhat to do with those left behind, the inquisition
did not necessarilyincarceratemurderersand wait for a peace
settlement. It moved more vigorouslyin those cases where assail-
ants were kinless and friendless that is to say, without power.
The evidence, almost by definition, is poor: it took resourcesto
put up a fight that could be documented.Yet hints found in the
documents support the conclusion. On 15 December 1357,
GuilhemRobaut came before the judge of first appealsto retract
a confessionof homicide.77He declaredthat he had been coerced
into confessing to the murder of a court crier, Guilhem Telhet,
through fear of torture. Pleading for an adjournmentso that he
could preparehis case, the defendantexplainedthat he had been
unable to meet the originaldeadline"becauseof his poverty and
75 Notablythe case of the murderof Uguo Robert;see n. 34 above.
76For violence among the nobility, see Daniel Lord Smail, "Telling Tales in
AngevinCourts",French Hist. Studies, xx (1997-8n
forthcoming).
77 A.D.B.R., IIIB822n fos. 84r-85r)
15Dec. 1357.
 VIOLENCE
COMMON 49
1358, he
lack of kinfolk". One month later, on 15 January
his
declaredinnocent of murder a tribute to his legal acumen.
was
cobbler and city councillor, Jacme
In a second case, a wealthy
the city judges and the viguier for
Johan,had angrily denounced
named Boryaca or Buryata, while at the
having hanged a man
Maura, to
sametime allowing a notorious Catalanpirate, Peire
and he
gofree. For the insult, Jacme had been fined 10 pounds,
appealed against the sentence in September 1357.78The charge
in
againstBoryacawas not given, but the name is not Marseillais
indicating
origin(hence the notary'sdifficultyin transcribingit),
for the
thathe was a foreigner. This is the only known hanging as a
status
entireperiod between 1337 and 1362; the man's
foreigneralmost certainlyhelped determinehis fate.
man.79
In a third, the inquisition apparentlymisjudged their of
fishing village
Latein 1351, Uguo Jaume, originallyfrom the
brought before the
LaCiotat but then residing in Marseille,was
Jordan, a
palacejudge and charged with the murder of Martin
place in Calabria.
citizenof Marseille. The alleged murder took
to a room in the
Uguo, who denied the accusation, was led
to an the
basementof the royal palace and thence eculeum,
the presence of three
woodenhorse used for torture; there, in
his back and
judgesand a notary, his hands were bound behind
As he hung there he
thenraiseduntil he hung above the ground.
ask and require you, Uguo
calledout to the notary, "I ask, I
public instrument for me!"80
Berengierthe notary, to make a
down from
Immediatelythe judges ordered him to be brought
the prisoner was released. As in
the horse; an act was made; and
was compensated for by legal
the first case, powerlessness
of this case only because while Uguo
acumen.Tellingly, we know
to lodge a
was lying crippled in bed, his wife came into court
Uguo was not wholly bereft of
complaint against the judges.
support.
use of
These are cases in which the inquisition made free
we find
execution and torture (or the threat thereof). In others,
againstthem
that prisonerswho did not dispute the chargeslaid
settlement.
were imprisoned,and then releasedfollowing a peace adopt
shows that the court of inquisition could
The disparity the
status of
judicial postures that varied according to 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-
so PAST AND PRESENT NUMBER 151

murderer;the kinless, the foreigner,the immigrantwere treated

with greaterseverity than the well connectedor the native. That
assessmentof status was negotiable, and both family and friends
of defendantscrowded into the court during trials to assist the
defence. The press of bodies proved so burdensome that the
council issued a proclamationon 18 February 1351 restricting
those attending the defence of a case to lawyers and the male
kinfolk of the defendant fathers, brothers, uncles, nephews
and cousins.8l But in the outdoor booths where the courts of
medievalMarseillesat in justice, the abilityof the council to keep
friends and more distant kin at bay was surely limited. An
impressive show of solidarity could have had a considerable
influenceon the court.
Such may have been some of the circumstancessurrounding
the peace of Guilhem Bascul, the carpenter, killer of Guilhem
Turel.82There had been a melee, a rix. Turel had been wounded
and "killed outright" (totaliter interfectus). Bascul had been
arrestedfor the murder,banished,and then condemnedfor con-
tumacy ("delatus tunc de dicto homicidio et propter eo banitus
fuit et pro contumaciaper curia Massilie condempnatus")i a
procedure that introduced a new twist to the legal custom of
treating imprisonmentas exile, yet another imaginativeway of
fining murderersfor somethingother than murder. Bascul made
his act of contritionon Good Friday, in the Dominicans'church,
before a great congregation,under the watchful eye of the man
who mediatedthe peace, brotherGuilhemof Marseille,prior of
the Dominican convent. Bascul was on his knees. Humbly and
tearfully, he requestedpardon. He offered the kiss of peace and
was embracedby his victim's kinsmen:the butcherIsnartBayle,
Laurens Gartin, and unnamed others. He seems to have been
utterly alone and kinless.
So why was he treatedwith a measureof respect by the court?
Why wasn't he imprisoned and tortured, like Guilhem Robaut
or Uguo Jaume, or summarilyexecuted, like Boryaca?Like all
notarialacts, this one terminatedwith a list of witnesses, in this
case seven in number. Two were Dominicans.The other five
Uguo Esteve, Jacme Gili, Antoni Bonfilh, Peire Bonfilh and
Bernatde Soluiers are identifiedonly by name. Yet in searching
throughMarseille'sarchivesI 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.
 COMMON VIOLENCE 51

Bascul, were carpenters;what is more, they all lived on the same

street as Bascul, the Carpenters'Street. The kin group assembled
on behalf of Turel was more than matched by Bascul's friends
and neighbours,and their willingness to make a public stand in
his defence may have saved him from inquisitorial excesses,
allowing him to be banished and subsequently restored to his
community.
Having kith and kin was a sign of respectability,which in turn
was rewarded by more lenient treatment, by the inquisition's
delegationof authorityto the victim's kin and to the peacemaking
process. The scarcity of trials for homicide makes it impossible
to see the processat work in other cases. Yet other trialsinvolving
less serious violence, such as the first of the two discussedbelow,
illustrate how defendants sought to impress the court by the
extent of their social networks. In such cases, the defence
consisted as much in establishing one's reputation before the
uninformed judge as in challenging the inquisition's sequence
of events.

To judge by the survivingdocuments,exile was used exclusively

by those guilty of murder or of very serious woundings. The
more trivial the wound, the more likely it was that the assailant
would remain in town and risk arrest by the inquisition. In a
very curious and counterintuitive way, the judicial system of
fourteenth-centuryMarseille was primarilyresponsible for acts
of common and petty violence, leaving more serious cases to the
system of arbitrationand peacemaking.
Yet what was common, and what was serious?It was difficult
for foreign judgesto graspthe relationsof enmity that sometimes
lay behind acts of violence. It was difficultto predict whether an
assaultmight prickle the honour of the victim and give rise to a
lasting hatred. In practice, the court avoided the issue entirely.
To judge by the few inquisitionsthat have survivedin the appel-
late court records,the court preferredto proceedwith a mechan-
ical kind of justice in cases of violence. It counted the blows
given, but never inquired into motive, and rarely bothered to
establishthe chronologyof the events leadingup to the encounter.
This indifference to motive tended to trivialize violence; the
trivializationof violence createdgrievances;and many defendants
52 PAST AND PRESENT NUMBER151
chose to pursue those grievancesby means of an appeal. In these
appeals,we find defendantsstrugglingto restore some dignity to
their behaviourby establishinga chronologythat helped explain
their motives, sometimes using witnesses whose own probity
enhanced the value of their testimony. Two cases illustratethe
process particularlywell.
The first is an appeal made by the master shoemakerTomas
Dorlos againsta 10-poundfine levied for a severe beatinghe had
given to a journeymanshoemaker,Jacmede la Barre,a native of
France.83The fight took place in the late summeror earlyautumn
of 1342 in a part of the city called the Agudaria,in the vicinity
of the Scaria,a squarealongsidethe port where many shoemakers
formed a community.The inquisitionwas held immediatelyafter
the fight, and Tomas lodged an appeal a month or two later, on
29 October 1342. At the inquisition,84all the witnesses claimed
to have seen Jacme, severely wounded, first defending himself
against Tomas and then lying prostrateon the ground. The first
witness, Peire de Moustiers,reportedthat he had heardan uproar
(rumorem) from inside the house of the shoemaker Peire
Chamonet.Rushing out, he saw the victim bleedingin the street,
and Tomas striking him again with his sword. Asked who else
was present, the witness said many others whose names he did
not know.85This ignoranceof names suggests that Peire was not
a resident of the quarter;other documentsin fact suggest he was
a goldsmith or a labourer who lived some distance away. The
next witness, the brassworkerJohan Raynier, reported that he
had heard the uproarfrom his workshopon an adjoiningstreet;
coming to the scene, he saw the accused striking the victim
several times with a sword.86This witness saw the fight in its
earliest stage, did not mention that the victim had fallen to the
ground, and explained that he had returned to his workshop
almost immediately. He, too, knew none of the names of the
other bystanders. Both of the next two witnesses, Salvaire
Clemens,a residentof the quarter,and BernatSpitalier,probably
another brassworker,gave similar testimony: Salvaireseems to
have arrived on the scene just after the fight had broken out,

83 A. D. B.R., IIIB 808nfos. 184r-21or, 29 Oct. 1342.

84 Ibid., fos. 193r-205V.
85 Ibid., fos. 197V_198r.
86 Ibid-, fo. 198V.
 COMMON VIOLENCE 53

while Bernat witnessed events after the victim had fallen to the
ground.87
The testimony given by the witnesses at the inquisition was
thin. None of them appearsto have been among those who raised
the alarm. All of them had missed the beginning of the fight; all
reportedonly part of the events, in a curiouslydisjointedfashion.
The sequence of events is confused. It is not entirely clear, for
example, whether the wounds were inflicted before or after the
victim fell. With the possibleexception of SalvaireClemens,none
of the inquisition witnesses was a shoemaker,and although this
may reflect the unwillingness of the shoemakers to become
involved in an intraprofessionaldispute it is more likely that they
were prevented from testifying by the inquisition. When Tomas
himself gave evidence, all he was allowed to say was that Jacme
had once worked in his workshopand had struck him first.
This flattening of chronology, and this studied ignorance of
the context of the dispute, were typical of the inquisition'sstyle
in other cases that came to be heard on appeal. As a rule of
thumb, the inquisition had no interest in probing into the
sequence of events that had led to the dispute. Judges were not
interested in finding out whether defendants were in any way
justifiedin being angry;nor, as a rule, did they make any inquiry
into the social context of the dispute or the reputationsof the
parties involved. We cannot tell whether this inquisitorialhabit
was intentionalor not it may simply have been an incidental
result of the custom of prosecutingonly those caughtinflagrante.
Whatever the circumstancesin this case, Tomas was offended,
and in his appeal he tried to present the violence within the
context of a larger dispute, including the social context. He was
not above name-calling:at the inquisition, Jacme was called a
shoemaker, but at the appellate hearing Tomas described his
victim as a vagabond(homovagabundus)and referred to him by
the diminuitiveform of his name, Jacomin.But Tomas'sprimary
concern was to show how his actions were justified by the real
chronologyof events, revealedby the list of titles (tenortitulorum),
or legal arguments, that he presented to the judge and called
witnesses to prove:
( 1) Jacmeowed his ex-mastersome money. One day Jacmecame
to Tomas and asked to be paid his wages; Tomas responded
87 Ibid., fos. 198r-200r.
 PAST AND PRESENT
54 NUMBER 151
"Pay me what you owe me", whereupon Jacme
suddenly
raisedhis handand gave Tomasa greatslap (magnam
on the face. alapam)
(2) Jacme then took his cane and further
wounded Tomas.
(3) Jacme, assaultingTomas with one hand,
seized him by the
hair with the other and pulled him about. Seeing
that he
could not evade the blows, Tomas drew his sword
in self-
defence and wounded Jacme;Jacme then let go.
(4) Jacmewas strong, robust, and large-limbed
(habens extremit-
ates corporeas magnas),and was more capable of hurting
Tomas with a small knife than Tomas was of
hurting him
with a large one.
(5) Tomas was a peaceful man.88
The story seems realistic enough and includes
several points,
such as the debt and the initial aggressionby
Jacme, that were
not mentioned by the witnesses called by the
inquisition. To
confirmthis story) moreover, Tomas was able to
recruit two
othershoemakers,a currier, a next-door neighbour,
and a close
friend, the squire Tomas de Portu. These men
exemplified
Tomas'srespectablesocial network. At least three of
these wit-
nesseshad known him for some time and could thus
hewas a peaceful man.89All claimed to have confirm that
witnessed the fight
frombeginningto end, and for the most part the
testimony they
oSeredcorroboratedTomas's story well.
The transcriptends with the declarationthat
"[t]he case was
droppedby higher authority".90Yet it is doubtful that
this out-
comewas in any way guaranteed.Moreover,
Tomas may well
havespent more than 10 pounds on his appeal,
and there is
nothingto suggest that the crown was asked to pay
his costs.
Obviously,Tomas was motivatedby the convictionof a
riageof justice as much as anythingelse; and since miscar-
appealswere
heardin booths in the city's central square, it is
quite possible
thatthis highly public depiction of Tomas as a
reasonableman
wouldhave restored his credit whatever the
eventual verdict.
88 Ibid., loose leaf inserted
betweenfos. 186 and 187. These titles are too long to
transcribein full.
89 It is significantthat one
of these three, his
woman, for womenwere commonlyunderstoodbyneighbour AlasaciaViola, was a
the courtsto havea soundgrasp
of
neighbourhoodreputationsand frequentlyappearedas
Marseille. characterwitnessesin
90A.D.B.R., IIIB808, fo. 210r: Sopita est causa per summam.
 COMMON VIOLENCE 55

The public nature of justice in Marseille, although it may have

helped the inquisitionto trivializeviolence and to shame defend-
ants, also enabled wealthy defendants to restore their damaged
reputations.
A second case is that of JulianMarquetand Jacme Guilhem.9l
On a cloudy day in January 1342, Julian, a fishmonger from
Catalonia,and Jacme, a fisherman,had a runningfight along the
quay of the port, which led to blows being exchangedand blood
spilt. Witnesses testified that Julian had been walking along the
quay away from the church of St John when he was accostedby
Jacme, who (accordingto one witness) said to him "Leave this
place!" ("Avases loc!"). Knives were drawn;Julian turned and
fled back up the street and into Nicola Bonifilia'stavern,followed
by Jacme. Both men were yelling "Now is the time!" ("Ar es
ora!Ar es ora!"), and Nicola screamed"St Mary,help!" ("Sancta
Maria acorres!"). As the neighbours gathered, they saw Julian
deal Jacme a blow on the right arm, returned with interest by
Jacme,who struckJuliantwice on the head and once on the right
hand. One or two neighboursintervenedat this point, placing a
wooden bar between the combatants.Severalwitnessesfor Julian
claimed that as Jacme re-emerged from the tavern, his brother,
Peire Guilhem, challenged him in some way, saying (roughly),
"Go back and strike him againbecauseyou didn't finish the job"
("Torna lo ferir car tu non las ben ferit").
Medical evidence given at the original inquisition suggested
that both men were wounded to more or less the same degree;
both were up and about a day or so after the fight. Yet although
Julian received three blows and managed to deal only one, and
had not precipitated the fight, he was none the less fined 20
pounds by the inquisition,whereasJacmegot away with only 15.
During the inquisition, the court made no effort to put the
fight into any kind of context, confiningitself to the time it took
Julian to walk from the church of St John to the place where
Jacme was waiting and the few minutes of the fight itself. The
evidence from witnesses was fragmentary.No inquiry was made
about the defendants'kinfolk, not even about the suggestionthat
Jacme's brother Peire was involved in the fight. No inquiry was
made into whetherJacmehad plannedthe encounter.No inquiry
was made into whether Julian,as a fishmongerand a collector of
91 Ibid., fos. 32r-65r,5 Mar. 1342;the case is entitled Causa appellationis3'uliani
Marqueti, catalani peysoneriide Massilie contra curia.
56 PAST AND PRESENT NUMBER 151

taxes on fish sales, was involved in any professionaldispute with

the fishermanJacme. Some of these points, it is true, emerged
when the two men themselveswere allowed to testify at the end
of the original inquiry, but no effort was made to pursue these
points throughthe testimonyof corroboratingwitnesses.In short,
the court concentratedon a short span of time and on a very
limitedset of motives:very limitedindeed, for the courtexplained
Julian'sact of violence only by saying that he had been "moved
by the agency of the Devil" to strike Jacme the blow which had
causedblood to flow.92On this showing,Julianwas most probably
given the largerfine becausehe had been the first to draw blood,
thus escalating the conflict from one involving insults to one
involving weapons and bloodshed.
As in Tomas's case, Julian's appeal partly consisted in his
establishinga chronologythat highlightedhis opponent's role in
startingthe fight and cast his own behaviouras self-defence. But
the logic of his argument was informed in part by the logic of
vengeance. He sought to prove that he lived in the fishmongers'
quarter, some way from the scene of the fight, and was not
originally from Marseille but from Catalonia. His enemy, by
contrast, was from Marseilleand lived in front of the church of
St John, as did some of Jacme'sown relatives,namelyhis brother
and "many other agnates and cognates, affines and neighbours,
and friends".93Last, he was alone on the day of the battle. In
this version, Julian was deep in enemy territory,stripped of the
protective shield of kin. As it turned out, however, this hostile
array of relatives and friends dissolved, upon inspection, into
the solitary figure of his enemy's brother, Peire Guilhem.
Furthermore,we find that his enemy Jacme lived nowhere near
where the violence took place; all the witnesses agreed that he
lived in the Praepositura,an area of the city far to the north.
None the less, by heighteningthe sense of dangerit made a good
story and served to confirmthe reasonablenessof Julian'sact of
self-defence.
Notably absent from his story, however, was a rationalefor
Jacme's aggressive behaviour.In a remarkablerevelationin the
original dossier, Jacme himself explained to the judge of the
92 Ibid-, fo. 62r-
93 Ibid., fo. 34r-v.
The phraseusedto describeJacme'sassociatesis "attinentesdicti
Jacobiviz. fratersuus qui tunc fuit et erat presenset alii pluresagnaticognatiseu
affineset viciniet amiciJacobiGuillelmisupradicti. . .".
 VIOLENCE
COMMON 57

inquisitionthat he had been wounded by an unnamed brother-

year. The
in-lawof Julian's some time during the previous
implication is clear: his was a legitimateact of vengeanceagainst
made during
thekinsman of an earlier aggressor.No effort was and
originalinquisitionto inquire into this history, however,
the the
did not mention it on appeal.Julian's silence regarding
Julian folk,
that many ordinary
vendettais significant, for it shows
the inquisition
unlikeMarseille'snobility, were reluctantto tell
Jacme obviously felt no embar-
tostay out of their feuds (though
about doing so). One did better to employ the language
rassment
at bad blood, and leave the
ofself-defence, perhaps hinting
thinkingto the judge. in the
Tomas de Portu in the first case and the two antagonists
Tomas could
secondwere faced with very different situations. of ven-
notoffer an argument based on hatred or the prospect play
forced to
geance,because his victim was friendless. He was that
strategies
thecard of good reputation and self-defence In the
civil cases.
werecommon enough in other criminal and by his
the threat posed
secondcase, by contrast, Julian evoked
for justifiable vengeance.
antagonist'skin; Jacme, in turn, argued
hatreds were
Argumentsbased on the existence of mutual if less
common in cases involving violence between nobles;
they can be found in this
commonin those involving commoners,
was thought to be the prerogative
appealand in others. Hatred Whether
of the powerful, of those with kin, friends and allies. from
rhetoric removed acts of violence
intentionallyor not, court to make
the context of anger or hatred, and in doing so tended
explicable as
commonviolence exactly that: common and petty,
rather than of
the product of insanity or diabolical influence,
hatredin their
rationalthoughtprocesses.In contrast,by evoking petty acts
appeals, criminaldefendantswere able to make their
of violence seem more heroic.
those with
As with exile, the appellate process favoured cost
found in these records
resources.The least expensive appeal
but a few of the fines assessed,
6 pounds, alreadymore than all
to about 67
and the most expensive cost 42 florins (equivalent vine-
pounds), the price of a modest house or of a decent-sized
reach of all but the wealthiest citizens.94
yard, well beyond the
Costscouldvaryconsiderably, dependingon the quantityof writteninstruments
andassistants.For examples,see A.D.B.R., IIIB
94
neededandthe salaries for lawyers
822, fo. 75V,24 Nov. 1357 (6 pounds);IIIB 816, fo. 67r, 17 June 1353 (30 florins);
IIIB811, fo. 173V,11 Feb. 1352(42 florins).
58 PAST AND PRESENT NUMBER 151

As a result, appealswere not common.In the twenty-oneregisters

of Marseille'scourt of first appeals surviving between 1337 and
1362, only thirty cases are recordedinvolving violent confronta-
tions. The negotiable qualities of the system clearly favoured
those with money. Others had to suffer in silence. If legitimate
violence and the pursuit of vengeance came to be restricted to
members of the Europeanelite, this was not necessarilybecause
common folk were not honourable:they may simply have lost
the chance to tell us so.

VI
To judge by the example of Marseille,justice did not emerge in
medieval Europe fully formed, like Botticelli's Venus on the
waves of a turbulentpast. Nor was peace somethingthat figures
of authorityimposedon a lawlessand violentpopulation,although
the legacy of Hobbes encourages us to interpret the Christian
discourse of peace in this way. Habits of peacemaking were
ingrained in medieval society, along with those habits of
vengeance that gave the spur to peacemaking.Some lawcourts
recognizedthe utility of peace. Peace is fulfilling.It satisfies.And
in certain circumstances,the royal court of Angevin Marseille
was willing to allow the peace process to have its way, delegating
its authorityover homicideand other crimesof violence to ensure
that the processwould not be vitiatedby a hasty judgement.Both
the power vacuumand the continuingrealityof group vengeance
encouragedthis caution.
But a peace was effective only when the assailantand the victim
alike were part of a network of kin and friends, where both
parties possesseda certainsocial standing. This was a matter for
negotiation, not an object of common knowledge, especially to
judgeswho were foreign to the city, to its families,its neighbour-
hoods and its problems.So we see justicepractisedin a discretion-
ary, delicate way. We see people anxious to discovergroups that
would legitimate their claims to preferentialtreatment;and we
find many, like Guilhem Bascul and Tomas de Portu, calling
upon their friends when kin were in short supply. We see subtle
rhetoricalbattles takingplace in court, as inquisitionand defend-
ant alike sought to define the context in which acts of violence
took place. In these practices for handling violence, there was
room for negotiation and flexibility, judicial abuse and popular
 VIOLENCE
COMMON s9

It was a system without clear rules. It was a system

resistance.
This
the judges and the judgedmade up as they went along.
that
going, that
wasnot a legal system that knew where it was
accordingto an internal logic regardless of the ends
developed
it served, of the people who used it. It was a hybridizing
that
eventually
system,one in which the act of vengeance would
of revenge in the
merge into the art of litigation, leaving a taste
and knives of an
writsand pleas that supplanted the swords
earlier
era.95

University
Fordham DanielLordSmail

Kagan, "A Golden Age of

95Chiffoleau,ffustices du pape, p. 160; RichardL. and Settlements;Kuehn,Law,
Castile,1500-1700",
Litigation: in Bossy(ed.), Disputes
Family,and Women,pp. 80-2.

Past and Present Conference

on

THE MORALWORLD OF THE LAW

to be held at the Universityof Birmingham

12-13 July 1996

from The Past

forms,zvithfull details,are obtainable
Registration
Banbury Road, Oxford OX2 7AW, UK;
and PresentSociety,175
fax.
tel. 01865-512318; 01865-310080.