Crime in Medieval Europe

1200-1550

Trevor Dean

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317881773
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire du monde

What is the difference between a stabbing in a tavern in London and one in a hostelry in the South of France? What happens when a spinster living in Paris finds knight in her bedroom wanting to marry her? Why was there a crime wave following the Black Death? From Aberdeen to Cracow and from Stockholm to Sardinia, Trevor Dean ranges widely throughout medieval Europe in this exiting and innovative history of lawlessness and criminal justice. Drawing on the real-life stories of ordinary men and women who often found themselves at the sharp end of the law, he shows how it was often one rule for the rich and another for the poor in a tangled web of judicial corruption.

chapter 1

COURTS, CRIMES AND CAUSES

On a Saturday night in December 1352, a group of seven men, Gascons and Catalans, were returning from the market in Toulouse, the major city of the Languedoc region of southern France. Some forty miles from Toulouse, they stopped at an inn in the village of Mireval. After dinner, two of the men had an argument about a sum of money that one claimed the other owed him. A dagger was drawn. None of the others present saw the fatal blow, but they heard the victim cry out ‘He’s killed me, the traitor’, and they saw the blood gushing from his belly. The victim survived for a few days, and then died. Physicians were called in from the nearby town of Castelnaudary to certify that he had died of the knife-wound. By this stage legal proceedings were in train. The suspect claimed to have acted in self-defence. Witnesses agreed that the victim had started the quarrel earlier in the day. However, the suspect had previous convictions for murder and theft, and was tortured by the judges. Consequently he confessed to the crime. Though his fate is not recorded, a confession of this sort would have been sufficient to incur the death penalty.¹

In December 1421, Arnald van Harsill was indicted before the sheriffs and coroner of London for killing John Bene, a London armourer, some six months previously. He had stabbed him with a knife, ‘in the left part of the breast … the wound being two inches long, one inch wide and in depth to the heart’. John Bene had died immediately. Arnald pleaded not guilty and accepted trial by jury. A jury was summoned, but instead of giving a simple verdict, the jurors declared on oath

that the said Arnald and John were sitting together on a seat in a tavern called ‘The Moyses’, when abusive words, begun by John, arose between them concerning John’s concubine, and that John drew a dagger and attacked Arnald, who did his best to flee, whereupon John pursued him to a wall behind the inn-door, and threw him down and fell on him, repeatedly striking at him with his dagger, and that Arnald, being in great danger of death and unable to escape unless he defended himself, drew a knife and struck John in the left part of the breast, of which John died.

Asked specifically if Arnald could have escaped in any other way, the jurors said not. So Arnald was sent back to prison to await the king’s pardon: in effect he had pleaded the excuse of self-defence, and the jury accepted this.²

From London we return to the south of France. In 1353 a woman of Mireval and two of her female neighbours were washing their clothes in the stream. She left a cloak to dry on a frame. When she returned to fetch it, it had gone. A few days later a shepherd reported that a vagabond had been seen in a village carrying the cloak. The woman’s husband went to the village, entered the tavern and saw a young man with the cloak next to him on a stool. The husband had the youth arrested and summoned to the court in Mireval. The suspect was 15, but this was not, as he admitted, his first time in court for theft. However, he maintained that on this occasion he was innocent. He said that he had bought the cloak on the road from two poor travellers, and he insisted that he had arrived in Mireval on the day after the theft. Asked where he got his boots from, he said that he had won them gambling. The court did not accept his statements, and banished him from Mireval for three months.³

Back once more in London, in January 1417 ‘Edmund ate Chapell’ of Finsbury was indicted before the sheriffs and coroner of robbing John Stowe of Norwich at the end of December of a white horse, four bolts of cloth, a knife, a fur and other goods. He pleaded not guilty, and opted for jury trial. A jury was summoned and was sworn in. They said on oath that Edmund was guilty, so he was sentenced to death by hanging.⁴

Rural France is obviously a very different place from urban England: its social, economic, political and administrative structures are entirely dissimilar. A big city that was a port and a capital had a range of activities and functions that was completely alien to the limited world of a village and its peasants. Mireval was in the Lauragais area of the Haut Languedoc in what is now the département of Aude. This was a strongly agrarian area, producing wine, grain and, already by the early fifteenth century, the pastel dyestuffs that later attracted merchants from both Toulouse and over the border from Spain. In the mid-fourteenth century, the village population was probably to be numbered in a few hundreds, but today it is too small a place even to warrant a presence on most commercial maps and has been administratively fused with the nearby village of Laurabuc. To judge from the wills made in the Lauragais in the later Middle Ages, it was a poor area: a high proportion of will-makers left bequests to the poor; a very low proportion could afford anniversary masses or funeral meals. Although Mireval was part of the domain of the county of Toulouse, in effect part of the royal domain, criminal justice was administered not by royal officials, but by local ‘consuls’.⁵ London, by contrast, was ‘a vigorous, crowded capital city’ of some 40,000 inhabitants, one of the larger cities of northern Europe.⁶ Both port and capital, London fused many functions together, with a separate abbey and royal palace at Westminster, with busy wharves lined with ships, with shops and taverns along crowded streets, with dozens of guilds and a strong service economy ranging from wholesale trading to brewing and brothel-keeping, with a population of alien merchants and artisans from Germany, Italy and Flanders, with wide disparities of wealth and status, from the royal court and the houses of the nobility and mercantile elite, to the mass of poor servants and casual workers.

London and Mireval thus offer an extreme contrast of social and institutional context, the one a large, wealthy, successful city, the other a small, obscure village. As we shall also see, the criminal laws and procedures applied were very different. And yet the criminality seems qualitatively very similar. Can this be true? This problem of the possible regional variation in criminality will occupy us later in this chapter (pp. 23–5). Other features of these cases will also recur in this and later chapters: crime as a gendered activity committed predominantly by men, with women more frequently victims than perpetrators (p. 23, and Chapter 4); the common practice of carrying knives (pp. 20, 22); the use of torture (pp. 15–16); and the association of ‘vagabonds’ with crime (pp. 50–2). This handful of cases also shows some of the typical contexts within which crimes of violence arose: arguments between men over money or women set off confrontations, often in taverns, that led to bloody injury and death. Yet the way that courts in the various parts of Europe dealt with these conflicts varied. In England a jury of local men simply gave a verdict, apparently without much in the way of hearing evidence or witnesses, and the judge issued the sentence which, in the case of felonies such as homicide, could only be death. In many parts of continental Europe, the judge did interrogate the suspect, and question the witnesses. Where the witnesses’ statements strongly incriminated the suspect but were inconclusive, as in the first case from Mireval, the judge could use torture to discover the truth. However, an immediate question is whether these different judicial methods led to different outcomes.

Some English contemporaries certainly thought so. In the 1460s, Sir John Fortescue, a former chief justice of England then in exile in France, wrote a short work ‘in praise of the laws of England’. In the course of this, he sought to establish the excellence of English trial procedures by contrasting them to those of France. The damning feature of French criminal justice, according to Fortescue, was the ease with which the innocent could be condemned to punishment. On the one hand, what might be called the ‘two-witnesses-and-you’re-out’ rule meant that any two men, motivated by fear, favour or greed, could secure the conviction of innocent people by privately agreeing a story in advance and then by perjuring themselves in court. On the other hand, the use by judges of cruel torture induced the innocent to confess to any crime and led the guilty to make false accusations against others. The first of these features was condemned by Fortescue as ‘wicked’ and the latter as ‘a pathway to hell’.

In contrast, he presents the English system of trial by jury as a guarantor of impartiality and truth. Jurors cannot easily be corrupted, he argues, because they are local property-holders, not greedy paupers. Suspects can object to individual jurors, who will then be replaced, thus ensuring impartiality. The fact that witnesses have to deliver their statements before a jury of twelve neighbours, who know them and their credibility, ensures that false charges cannot easily be sustained. ‘Now, is not this procedure for revealing the truth better and more effective?’, Fortescue asks: a question that supposes only one answer. The use of neighbours, ‘sound in repute and fair-minded’, is thus contrasted to the use of suborned witnesses, ‘unreliable hirelings, paupers, vagrants’. ‘Who then in England can die unjustly for a crime, when he can have so many aids in favour of his life, and none save his neighbours … can condemn him?’⁷

Fortescue thus describes English and French trial procedures in terms of opposites: on the one hand, we have the corruption of witnesses and the use of torture; on the other, judgment by fair-minded neighbours. Such conclusions, that English jury trials are ‘fair’ while foreign judge-led trials are ‘unfair’, persist in the modern world, surfacing whenever a British citizen is accused of serious crime in a foreign court. Despite the many changes since Fortescue’s day, his sense of the innate superiority of this island’s institutions remains with us today. In England, we are frequently told, everyone is ‘innocent until proven guilty’; on the continent, by contrast, a suspect has to prove his innocence. The adversarial and inquisitorial systems, it has recently been observed, differ in their fundamental assumptions on the best way of going about things. The one puts its faith in ‘the dialectical process of persuasion involved in courtroom procedure’, while the other trusts the state and its officials to pursue truth ‘unprompted by partisan pressures or individual self-interest’.⁸ Yet popular participation in justice through the jury and the presumption of innocence are not historically unique to England. In the late medieval kingdom of Mallorca, for example, courts were composed of royal judges accompanied by local ‘goodmen’ (prohombres) who were present at inquests and participated in sentencing. In some parts of Italy, judges were assisted in framing sentences by groups of local men, elected for the purpose, or chosen at random from prepared lists. In Sweden, too, local juries of twelve free men were the ‘dominant form of proof’.⁹ The principles of due process, such as the presumption of innocence, were an important part of continental learned law in the later Middle Ages, and the tag ‘better to leave one criminal unpunished than to condemn an innocent man’ in fact came from classical Roman-law texts and was recycled by medieval Roman lawyers.¹⁰ The presumption of innocence was not a part of the rhetoric of English law before Fortescue. So when he claimed that it was better to free one guilty felon than to hang a hundred innocent men, he was appropriating, as an exclusive feature of English law, a principle of medieval continental law.

However, English law was clearly distinct from much continental law in many ways. From the twelfth century onwards, English criminal law and procedure had diverged from much of continental Europe. The resulting common-law system appears to continental lawyers as an ‘erratic block, different, unexpected, strange’.¹¹ The key difference lies in the reception and influence of Roman law: without this as an anchor and inspiration, English law developed its own categories and methods, which vested much more influence in judges and custom, and much less in codified legislation or learned lawyers. However, this divergence, though it made real differences, also conceals a broader convergence of general development. In general terms the late twelfth and thirteenth centuries in Europe saw two movements of change, one relating to trial and proof, the other to punishment. Until that point, crimes had come to court mainly through private accusation, and the parties were adversaries. The right to bring the accusation belonged to the victim or his family, and the trial took the form of a debate: both parties had to be present, the accuser stated his case, and the defendant responded. The court appointed what it regarded as an appropriate method of proof, either compurgation (the defendant and his ‘oath-helpers’ swore to his innocence) or an ordeal of fire, water or combat. Settlement was in the form of composition, or compensatory payments fixed by a detailed local tariff of injuries. As Mario Sbriccoli has put it, there were essentially three parties to such trials: plaintiff, defendant and judge. The initiative lay with the plaintiff and the defendant; the judge listened, mediated, settled.¹²

In the late twelfth and thirteenth centuries, three general developments disturbed this method of seeking redress for wrongs. First, there was a general retreat from the ordeal, as university-trained lawyers promoted ‘a procedure based on evidence and argument’, which supplanted the appeal to God by the ordeal. This was made authoritative in 1215 by the 4th Lateran Council of the Catholic Church, which prohibited the participation of clerics in ordeals. This forced secular courts to turn to other means of proof, generally inquest or testimony.¹³ Alongside this, the growth of royal power led to the emergence of denunciation as a means of prosecuting criminals: now the victim reported the crime, but the state took over the prosecution. Lastly, inquisitorial procedure was added to the judicial armoury, with its distinctive features of torture and prosecution ex officio. The latter allowed judges to prosecute suspects without having received a specific complaint from the victim, and merely on the basis of the notoriety of the crime. The three parties to a trial were thus reduced to two, the accused and the judge; and the judge not only made inquiries but also acted as inquisitor.

England both shares in and stands slightly outside this general trend: even before the late twelfth century, English law had moved away from treating serious crimes as wrongs to be settled by payment of compensation, and was using juries to denounce (‘present’) serious criminals. Subsequently, it rapidly substituted jury verdicts for the ordeal, extending the role of juries from denunciation to trial, but it stopped short of adopting inquisitorial methods (except in some special courts). In lesser crimes the initiative was left to the injured party to bring a complaint to the royal court in an action for ‘trespass’. (Trespass was much broader than the modern ‘entering without consent’, and encompassed a range of crimes against the person and against property. The Latin term for ‘trespass’ was transgress...