Early Medieval Law and the Reinvigoration of Roman Law

Perhaps the most influential vision of early medieval law is that of Patrick Wormald.^[306] He showed how law was effectively aspirational for rulers: law codes and edicts were ways to represent a particular form of power.

If the Anglo-Saxon state was particularly precocious in its ability to prosecute and control the use of legitimate violence, it nevertheless remains a conundrum for historians that theft was punished far more severely than physical violence.^[309] The penalties imposed by law for physical violence were, in fact, rarely those of execution.

For example, in Anglo-Saxon England, the victim's family would be paid a wergild, and their is lord would be paid a manbot - these sums represented a form of compensation. The figure with jurisdictional rights over the killer (perhaps the king) would be paid afihtwite. Superficially, this presents a contrast with Frankish sources, which seem either to limit royal involvement in the punishment of either theft or homicide, or to punish both by death. Closer inspection reveals, however, a similar logic, as Carolingian texts indicate that a killer was to be summoned into the royal presence for punishment only if he refused to pay, or the victim's family refused compensation. There was a further rationale to royal involvement in Anglo-Saxon law. Tom Lambert has shown that the principle underlying much of the legislation against violence was one of hospitality: rulers were analogous with hosts, who had a duty to protect their guests, and were entitled to compensation if any of those guests were harmed. The laws of Ine of Wessex, for example, make this point, describing penalties for fighting in different kinds of houses.^[310] The late Anglo­Saxon period saw a great expansion of the king's protection to include houses, roads and churches, and the reach of the king's intervention after acts of physical violence consequently stretched substantially.

These points might be nicely encapsulated by looking at the special case of church sanctuary. This probably derived in the early medieval period in England both from episocopal intercession on behalf of supplicants (an idea derived from Roman culture and Christian teaching about the importance of mercy and penance), and from the ideas of hospitality and shelter under­pinning legal developments.^[311] Church sanctuary then was a practice which engaged with the socially embedded nature of interpersonal violence and which acknowledged that the role of law was not straightforwardly coercive, but debateable and flexible: sanctuary was intertwined with the multiple discourses - religious, interpersonal and legal - surrounding violence.While recent historians have tended to emphasise the continued uptake of Roman law, particularly in southern Europe, even in the early Middle Ages, the rediscovery of the Digest in the late eleventh century was clearly a crucial moment.^{[312] [313]} The impetus given by this text was multi-faceted. On the one hand, it stimulated the intellectual study of law, with the University of Bologna being founded around the same time: law could become a specialist subject, with a distinctive jurisprudence emerging.11 On the other hand, it provided a model oflaw whereby its function was emphatically more than an agent in interpersonal negotiations: Roman law lay at the heart of the development of the ius commune.^[314] In Roman law paradigms, crime is seen as a public misdemeanour. Its implications reach beyond those involved in the conflict, to affect the community as a whole. If early medieval law was triangulated to consider the interests of the perpetrator, and the dual victim­hood of the wounded person and the analogous host, Roman law articulated more explicitly the public effects of the crime. Punishment was calibrated accordingly.

The distinction in perspective is nicely underlined in the idea of a shift from an accusatorial to an inquisitorial system in the fourteenth century.

Changes in procedure and the growth of an idea of ‘public crime' would seem to sustain the argument that developing mechanisms of legal prosecu­tion went hand-in-hand with the development of states. What is often labelled a Weberian narrative of a growing state monopoly of violence seems incipient at this point. However, there are various problems with such a straightforward schema. First, the mapping of law and polity can be tricky. European polities did not often develop distinctively ‘national' sets of laws, but law overlapped political boundaries in complex ways. Roman law is, by its very nature, international, and in many ways the localism of earlier medieval laws had to give way to a more cosmopolitan notion oflaw which could sit uneasily with the development of statecraft: equally, though, Roman law in many ways acted as a supplement to local laws and customs.^{[315] [316]} John Watts has pointed out the internationalism of the practice of writing up law: at a learned level at least, it was a cosmopolitan endeavour.1⁴ Even where we can identify explicit attempts to integrate law and jurisdiction into growing practices of statecraft, the success of those attempts is highly dubious, as is the idea that the goal itself was to create a homogeneous and hegemonic body oflaw. There are, of course, significant regional differences, and England must be acknowledged to be unusually centralised in its legal administration.

A growing sense of ‘public crime' must have affected the processes of legal categorisation and definition. Homicide would be re-read as a matter of utmost gravity, affecting the community as a whole, rather than just the victim and the king whose protection had been violated. However, this process of reinterpret­ing homicide was protracted and complex. Even by the fifteenth century, many were unwilling to recognise the implications of homicide as stretching beyond the parties involved. The prosecution of rape continued to be highly contin­gent upon deeply misogynist notions of women as property of their male guardians.^{[317] [318] [319]} The prosecution of domestic violence is particularly telling. Although its implications could become explicitly disruptive to the community when domestic quarrels and beatings emerged onto the street, there was a real unwillingness to accept the need for public law to interfere in abuse that remained within the boundaries of the home. Moreover, ambivalence about the extent to which husbands should actually be encouraged to ‘discipline' their wives continued, while concern grew about the public implications of exces­sive beating.1⁶ Where to draw the line between acceptable and excessive beating continued to be defined by legalists, as well as by moralists, as essentially a matter of ‘moderation', a highly subjective measure. The narrative of the increasingly ‘public' legal reading of violence and the appropriation of its use by the state can be examined by thinking about six strikingly problematic strands of this argument.

Public and Private Implications of Violence

The process oflaw was spectacularly public by the later Middle Ages. This is the first strand of developmental arguments regarding the public and state­centric implications oflaw. Courtrooms were highly ritualistic, and historians have drawn attention to the spectacular nature of public punishment.1⁷ The purpose of corporal punishment, it seems, was not simply retaliatory, but highly public in its deterrent effect: this was a dramatic spectacle, designed to reinforce structures of power.

However, law intertwined with power in significantly varied ways. For example, the governmental role in the prosecution of crime in Perugia and Bologna grew dramatically in both cities in the late thirteenth century: the implications of crime were deemed to be more public, and the punishment of crime became accordingly harsher.^[323] Punishments were explicitly calibrated to make points about political communities - magnates, or urban nobles, who killed non-magnates were liable to a fine four times as great as that to be paid by non-magnates who killed magnates; a foreigner who killed a Perugian was to be executed, a Perugian who killed a foreigner was to be fined 100 pounds. This calibration of penalty by person, place and time was a way to circumscribe a particular kind of political community, characterised by strong popolo reforms and an ideology of peace and justice.

Likewise, in Bologna, whereas thirteenth-century crimes had been prose­cuted based largely upon private accusation, by the late fourteenth century ‘a deterrent and public or community-oriented conception of crime and punish­ment' had expanded the role of government in the prosecution of crime, and punishments were more often corporal than compositions between individuals.^[324] But if this was increasingly the ideological position, the reality was more complex. Law enforcement continued to be dependent on the involvement of members of the community, and assaults continued most often to be prosecuted via a procedure initiated by a private accusation. Interestingly, members of the community seem to have distinguished between murders committed ‘furioso' or in hot blood, and other types of homicide with more obviously public implications for the community as a whole. Despite a lack of formal distinction in law, members of the commu­nity seem fairly readily to have sheltered those involved in crimes of passion or vendetta, thus challenging the reach of law and the public implications of these acts of violence. Blanshei concludes: ‘The distinctions between “public” and “private” spheres of criminal prosecution, between the procedures of accusation and inquisition, between vendetta control and deterrence of marginal criminality, thus reveal a basic ambivalence in the community's view of crime and criminality, between those crimes and criminals to be tolerated and those to be feared.'^[325]

Regarding punishment and pardon, the matter is further complicated by a growing flexibility of approach. The number of royal pardons grew expo­nentially over the course of the fourteenth century, with France providing an important case study. The growing use of remission, largely from the 1330s, was an effective way of reinforcing the role of royal power by underlining its unique ability to override judgements by inferior courts.²⁴ Remission, then, was an expression of public power. But it also arose from what might look like a contradictory tendency to pay closer attention to the individual conscience of the wrongdoer. Indeed, both these tendencies are apparent in Roman law itself, which stresses both the public implications of crime and the importance of individual intention. A Christianised approach, and the pre­rogatives of canon law, reiterated this. Courts were therefore keen to examine fact, and not just law. In other words, they looked at the precise unfolding of events, rather than simply pigeon-holing crimes into pre-cir­cumscribed categories. By the fourteenth century, the concept of equity had become increasingly prominent, underpinned and stimulated by theologians such as Thomas Aquinas.^[326] In continental Europe, notions of equity increas­ingly inflected the judgement of cases, and England saw the creation of a court of equity, the Chancery.^[327]

It is perhaps one of the most intriguing aspects of medieval law that insoluble conceptual contradictions could coexist. At the same time as courts were increasingly attentive to individual consciences and motivation, animal trials continued to provide strange spectacles.^[328] Even if these trials purported to represent communities, the hanging of pigs adhered to a notion of crime wherein intention played little role.

The Limited Impact of Roman Law

A second strand, then, of the argument about the ascendancy of Roman law needs nuancing. The impact of Roman law itself was in fact extremely limited. Most areas in Europe continued to run with a wide array of custom­ary, local and more centralised formulations. Although Joseph Strayer's representation of late thirteenth- and early fourteenth-century French state­craft has proved extremely enduring, and gave centre stage to the role of law in the development of the French state, more recent research has juxtaposed these genuinely impressive developments with the continued importance of customary law and powerful local or seigneurial jurisdictions.^[329] Germany was a case in point of multiple, often competing, legal frameworks: the law of the Landfrieden, the laws of towns, the normative structures of feuding, and the customs of fiefs and Lander.^[330]

Custom itself deserves fuller consideration. Ibbetson identifies three senses of custom or consuetudo in medieval law, all of which point to ways in which the narrative of the growing hegemony of law can be problematised. He describes ‘custom as normative practice, custom as unwritten law, and custom in opposition to law'.^[331] While state-builders may have quite logically felt customary law to be an undesirable impediment to legal developments, it was remarkably enduring.^[332] Many of these laws were oral: the German Weistumer and their Swiss and Netherlandish cousins were ‘locked in place by frequent repetition'.^[333] Over the course of the thirteenth century, we see an increasing drive to write down customary law. Philippe de Beaumanoir, the late thirteenth-century French jurist, is a remarkably articulate example. He was a legal official (a bailli), and his declared purpose was to ‘write down customs so that they can be preserved for the future'.^[334] Here is an acknowl­edgment that customary law was an integral element of French law, coupled with the impetus to regularise and take control of it to some extent. In fact, a kind of jurisprudence of custom emerged, articulated most clearly by the great jurist Bartolus of Sassoferrato - a custom had to be proved by writing or by witnesses, it had to be rational, and it could only be proved through law, as implicit acknowledgment of the continuing importance of custom.^[335] In France, Louis IX formalised the practice of enquete par turbe, a procedure to ensure that a given custom had the necessary authority of age. The Castilian Siete Partidas explains that a customary rule gains force through antiquity, but that it can only be valid through two judgements by judges.³⁵ Customary law was then both something that could be formalised through traditional channels of power, and something more subversive in the face of developing hegemonies.

The Monopolisation of Violence?

A third strand of teleological models of monopolisation of violence stresses the role of states: this is highly problematic because of the diffuse nature of many late medieval polities. Germany, with its patchwork of principalities, is paradigmatic in this respect. Italy and the Iberian peninsula could be described in similar terms. As Watts puts it, ‘Kleinstaaten in fact resembled the commonest pattern of territorial power in Europe: the patchwork of jurisdic­tions, operating under a (sometimes very light) co-ordinating authority.'^[336] Watts describes a spectrum of jurisdictional coordination, with the kingdom of Castile at one end, run with a clear distinction between the role of royal officers in reserved cases and that of municipal authorities who applied local laws.^[337] In the middle, one might situate France, where despite a crown claiming ultimate jurisdictional powers, a neat jurisdictional pyramid of appeals from lower jurisdictions to higher ones rarely operated in anything but theory.^[338] Jurisdictional rights were distributed territorially and geogra­phically (between powerful lords, royal officials and the church), as well as qualitatively by type of case. And finally, at the other extreme, lies Germany, where, despite the theoretically overarching feudal rights of the king or emperor, towns and princes vied with one another for the exercise of jurisdictional rights. Fourteenth-century Westphalia saw the development of the so-called Vehmic courts, which represented private jurisdictional franchises, and can be taken to indicate the rise of a new country gentry in the fourteenth century. Over the course of the fifteenth century, imperial efforts to master these private franchises had only limited success.^[339] The further east one travels, the greater becomes the jurisdictional autonomy of magnates, despite attempts, theoretical at least, to impose royal judicial authority. One might cite the Majestas Carolina in Bohemia (1355) and the Privilegium Maius in Austria (1358) as examples of law codes emanating from the royal power, which in practice were far more limited. Sometimes these impressive statements were in fact codifications of custom, witness the Swedish Eriksgata of 1335 or the law of the Bavarian Land of 1346.^[340] Ecclesiastical powers tended to benefit from substantial immunities, and regional land-courts usually represented local powers and ruled through custom.

One of the striking results of this diffusion of justice in the later Middle Ages is the rich archival trail of conflicts of jurisdiction which it generated. These generate a powerful set of statements about power rivalries (some­times caught up in armed hostilities, most famously in spiralling unrest leading up to the Hundred Years War, as some of Edward I's Gascon subjects exploited jurisdictional tensions by appealing against judgements of their immediate overlord, Edward, to his technical overlord, a receptive Philip IV of France’),^[341] but they also provide unusually detailed accounts of events, and often give a sense of the ways in which violent incidents are remembered collectively and individually. Typically, small-scale conflicts of jurisdiction would necessitate the gathering together of the oldest inhabitants of the locale to describe all cases they had seen prosecuted, and to provide evidence of precedent: events can be remembered over a period of over half a century, and the historian can gain unique insights into the ways in which dramatic violence impacted upon members of a community.^[342]