The Idea of Vengeance
Jurisdiction was something worth quarrelling over, not only because it was financially profitable but also because it was symbolically loaded. A fourth strand of complexity in accounts of the growing sense of the public implications of violence concerns the idea of vengeance.
Roman law condemns physical violence because it threatens the community as a whole: punishment apparently replaces the disorder of private vengeance. Nevertheless, the motivation of vengeance continued to underpin many legal responses to violence, and public punishment was still caught up in this logic. This ran alongside the on-going practice of private vengeance. Despite the rhetoric, in the later Middle Ages legal prosecution never entirely replaced the recourse to private violence and vengeance.[343] And as the logic of private vengeance continued, it proved virtually impossible to dissociate public punishment from its grasp. Indeed, one explanation for the relatively few cases of capital punishment for violent crime lies with the fear of violent retribution by the accused’s family.[344] In Philippe de Beaumanoir’s late thirteenth-century northern French custumal, he famously describes the role of law and punishment as ‘vengeance for misdeeds’.[345] Corporal and capital punishment were certainly spectacular and served an exemplary purpose: they were designed to reinforce the public demonstration of the power behind the law, to deter potential offenders, and to purify the community as a whole. But they were also explicitly a form of vengeance, and caught up in the same webs and cycles of retribution that one might assume they were designed to replace. In 1304 in Lens, one Jakemon Platel vengefully murdered the hangman.[346] The guilty party was still expected publicly to forgive his (and more rarely her) executioner into the sixteenth century, in Nuremberg for example: this was a necessary formula to release the accused's family from the obligation to avenge their executed relative.[347] In other words, vengeance was in many ways still the operative logic. If the application oflaw was about justice, this was justice conceived of distributively: the punishment should in some way match the crime and thus purify the community; it was to be decided upon via a logic of the latter-day law of retaliation (lex talionis).And the application of law itself was, of course, by our standards often extremely violent. Any narrative of growing centralisation quelling and controlling levels of physical violence must reckon with the sheer brutality of medieval law (and not just punishment). Modes of proof provide a case in point. Although judicial duels tend to be associated with the Germanic law of the early medieval period,[348] much of the law of later medieval Europe showed a good deal of ambivalence regarding the practice, with many compilations of customary law regulating it: the Livre de jostice et de plet sets out the precise circumstances in which a judicial duel represents the appropriate mode of action, and indicates what might invalidate it.[349] Philip IV of France attempted to forbid duels and private wars in the 1290s and 1300s, but he was eventually obliged to bow to pressure to allow duels in criminal and capital matters from 1306 onwards because ‘several malefactors get away with murder and other serious offences and excesses, because they have undertaken them secretly and so cannot be indicted by witnesses: therefore, if no other proof is available, we wish that they should be able to be called to a judicial duel'.[350]
If anything, the increasing recourse to Roman law intensified the physical pain associated with law. Not least, Roman law with its emphasis on inquisitorial procedure, reintroduced torture as a technique for gathering evidence. However, torture was almost always deemed highly problematic, with Louis IX of France (whose apparent interest in true justice surely played a role in his saintly reputation and subsequent canonisation in 1299) forbidding its use unless multiple witness statements were able to suggest its utility.[351] Ritual humiliations were associated with the punishment of violent crime.
It is of course telling that the most gruesome and meaning-laden punishments were reserved for crimes of lese-majeste, or crimes against the state. But very often, corporal punishment was commuted into some kind of monetary payment. In many ways, this is surprising given prevalent modern stereotypes of the brutality of the Middle Ages. Of course, the reason does not lie convincingly with any squeamishness regarding bloodshed. Rather it lies in the continued reluctance to categorise or even the straightforward impossibility of categorising violent offences as offences against the community as a whole, rather than as essentially interpersonal conflicts. The commutation to monetary payments effectively repositioned the original acts of violence within a framework of interpersonal relations which could be negotiated and pacified by a monetary payment - most often involving both a fine to the legal authority and a payment to the victim or (in the event of murder) to the victim's family. One pleasingly eccentric medieval practice was known as the ‘grace par manage subsequent'. If any bystander at an execution offered to marry the guilty party, the execution was abandoned, and the guilty would effectively have another chance at social life.[352] How widespread this practice indeed was is a moot point, but its continued existence once again points to an ambivalence regarding the role of capital punishment: it provided yet another opportunity to resituate the guilty party within a community, and to reintegrate and pacify. And indeed this continued to be in many ways the main role of the law. Maiming or killing the individual through corporal punishment could resolve the disruption caused by an act of violence, but more often legal mechanisms seemed to aim to restore communal harmony through reintegration, pacification or negotiation.Legal Process as an Instrument of Revenge
Law was messy, jurisdictions overlapped and conflicted, and ideas about vengeance and an insistence on the importance of interpersonal relationships continued to shape the logic underpinning law.
Despite popular narratives of the growing hegemony of the law, then, legal mechanisms did not replace interpersonal violence in the later Middle Ages. More than this, law was itself a strategy, and here lies the fifth strand of complexity. Even in relatively centralised areas like England, law and its courts provided opportunities not only for the quelling of interpersonal violence but for the pursuance of hostilities and quarrels. In the words of Hanawalt and Wallace: ‘The law was viewed as a tool of vendetta and revenge, not necessarily as a final arbitrator.'[353] While such a perspective has more analytical purchase when thinking about civil cases, it is nevertheless very striking that litigation was becoming an increasingly effective way to drag one's antagonist thoroughly through the dirt. It was becoming a form of interpersonal violence in itself. This highly antagonistic dimension of the legal process begins with the process of fama, on which Roman law was increasingly dependent. In line with the inquisitorial process, a case was to come to justice in the first place because of a common rumour or fama. What this indicates about the antagonistic and subversive potential of what one might call gossip is intriguing,[354] although the growth of Roman law meant the intensification of attempts by theorists to distinguish between mere rumour and gossip on the one hand and more evidence-based communal reports on the other.[355] It foregrounds the role of community hostilities even at the inception of legal cases. As cases developed, the public and formalised nature of courts provided parties with an opportunity to air grievances and often to exacerbate antagonisms.[356] This is not to say that law was never imposed from above - it could be both a top-down process and a tool sought out by conflicting parties.Channelling and Controlling Violence
In this sense, the sixth point, law was to some extent about channelling, containing and controlling violence, rather than replacing or usurping it.
This was no monopolisation of violence, nascent or otherwise. Looking backwards to the Peace and Truce of God movements instituted in the eleventh century, these pivotal moments in responses to violence were never about preventing or outlawing all violence.[357] Rather, their role was to control when, where and against whom violence was permitted. Later medieval law regarding violence often continued in this spirit, albeit with the spiritual prerogatives underpinning the Peace and Truce of God movements largely replaced by the prerogatives of political theory and attention to the common good. In fourteenth- and fifteenth-century Florence, vendetta continued to be seen as legitimate in both cultural and judicial terms.[358] What the law did, however, was to regulate feuds by stipulating which types of people were allowed to participate in feuding, and the open and public manner in which it was to be conducted. For example, a statute of 1325 was entitled ‘De puniendo qui fecerit vindictam nisi in principalem personam'.[359] Some feuding was deemed to be extremely dangerous and pernicious to the good of the community as a whole, witness the anti-magnate legislation which was underpinned by a sense that magnate violence was threatening the wellbeing of the commune. However, the role of law was never to ban it altogether, but to control it and to ensure that its effects shored up, rather than undermined, the structures of the community. In Germany, feuding continued to be tolerated in a rather different way, as one of a set of alternatives to law courts for settling disputes. Private war or Fehde was to a great extent normalised, and often spectacular, witness the Westphalian feud lasting from 1442 to 1447 fought between Dietrich von Mors, archbishop of Cologne, and the town of Soest.[360] Alongside this ran institutionalised forms of Schiedspruch or arbitration, often rooted in societies of nobles and kinghts such as that of St George in Swabia, with the ultimate sanction being, somewhat ironically, war against the offender who had failed to keep the terms of the arbitration. Landfriede or Public Peaces were ad hoc agreements to resolve disputes, again sustained through institutionalised and ad hoc legal machinery which did not deny the logic of the feud but tried to provide a way to minimise its perpetuation. In France, the private wars and feuds of powerful nobles were ostensibly limited by the growing pretensions of centralised power, but the extent to which these prohibitions worked in practice were limited, and even theoretically the prohibitions acknowledged the logic and necessity of many of these wars.[361] A case in point is the Foix-Armagnac feud lasting from the 1290s to the 1340s.Methodological Challenges
A far more complex picture emerges, then, than teleological narratives of the monopolisation of violence by the state and the public apprehension of interpersonal violence might suggest. Legal responses to violence were increasingly spectacular and ritualistic, sustaining and intensifying developing political structures, but interpersonal violence still was often read as being of more private than public import. Equally, legal responses were often still framed within a logic of interpersonal vengeance, and often acknowledged the legitimacy of feuds and private war. Most straightforwardly, a narrative of progression does not work because of the rich geographical variety of legal attitudes and frameworks over the course of the Middle Ages. One can even cite areas where any ‘progress' seems rather to be have been operating in reverse. Later medieval Ghent is a fascinating case in point, where by the fourteenth century ‘the “state” was retreating before the Germanic bloodfeud.[362] Violent offences were rarely brought to court, hindered by the persistence of self-help, the reluctance of plaintiffs to press charges, and the absence of a conception of violence as per se an offence against public order. Comital power had peaked in the city in the twelfth and early thirteenth centuries, but the count of Flanders was eventually obliged to acknowledge feud as a legitimate dispute mechanism, only attempting through law to regulate its perpetration. As comital power was forced to recede, feuding became subject to atonement payments which were sufficiently standardised and manageable as to amount to a form of taxation as much as a punishment. Towards the end of the fourteenth century, punishment was imposed on a man even if he had been reconciled with his victims, but the century as a whole represents a high point of the feud.
The more complex picture emerging leaves us with considerable challenges regarding the source material. These are challenges with which modern scholars, armed with the insights of the linguistic turn and thorough understandings of the mechanisms framing the construction of legal narratives, should be particularly well equipped to deal. Legal sources provide opportunities to discover details of social life which go beyond the specific crimes for which the subjects are indicted. However, they are often formulaic, and it is in the nature of law to categorise with pre-existing labels actions which may in practice have been more varied. And of course, the range of violence which appears in legal records rarely reflects the range of violence in practice. There are numerous reasons why court records would not faithfully mimic social practice. As Watts points out, ‘if an accusation that one had been wronged “with force and arms” enabled one to get justice in a higher and more powerful court, there were good reasons to make that accusation, whatever the realities of the situation'.[363] The labels and the presentations of ‘facts' were constrained by the strictures and expectations of law, and manipulated by canny litigants. Some of the most illuminating legal sources available are the appeals reproduced in letters of pardon and remission, and petitions of the later Middle Ages. While these documents tend to provide a rich body of detail concerning a particular case, they are naturally shaped by the desire to achieve a particular result. A murderer applying for a pardon would need to present the case in a particular way in order to elicit the sympathy of his audience, and these narratives were necessarily shaped by legal norms.[364] For example, if ‘hot anger' was legally deemed to be a mitigating factor, then such a narrative would be likely to portray the act of violence as one undertaken in fury. If legal frameworks suggested that selfdefence was a mitigating factor, then such narratives would try to show that any violence was provoked and defensive. If legal frameworks provided ways of demonising the victim and suggesting that he or she deserved the abuse (in the case of domestic violence, for example), then such a narrative would be likely to try to show the victim to have provoked the perpetrator unreasonably. These narratives were constructs: they referred to real events, but were shaped and constrained by structural imperatives in ways that literary scholars have shown to shape fiction.