Daniel Lord Smail, Professor of History at Harvard University, spoke at a lecture at the University of Toronto’s Centre of Medieval Studies on January 14, 2009. Medievalists.net was on hand for the lecture, and we present our report and notes on it:
Professor Smail began by noting the growing scholarly interest in the study of violence in the Middle Ages. Traditionally, historians have seen the medieval period as one of great violence and lawlessness, which resulted in the rise of kings and states, starting in the twelfth century, as a way to deter this violence and bring it under their control.
Legal sources and other medieval works often note that punishments for violent offences and other crimes were to be very harsh: being broken on the wheel, buried alive, or having your hands and ears cut off are all mentioned as possible penalties. Smail remarks that other historians viewed this as “a system of justice centred on the body and its pain.”
This traditional view has been criticized and undermined in the last generation, as historians have shown that medieval justice was not so irrational and unsophisticated (Smail says the old view was that “people needed a good spanking for 500 years before they could be civilized.”) Scholars such as Chris Wickham and Robert Bartlett have revealed that violence in the medieval world was often a complex topic and their was a certain logic in how it was used and controlled.
They have also found that while the Later Middle Ages (1250-1500) saw an emerging state monopoly on violence, they were also finding in their sources the practices of violence and the “persistent expectations of violence.”
Smail makes use of sources found in the Mediterranean cities of Marseilles and Lucca to examine how their courts and society dealt with violence, including cases of assault and murder. He suggests that courts in these cities, and elsewhere around medieval Europe, were not set up to suppress violence, nor did they typically use the practice the use of harsh punishments on the body as a form of justice.
One of the areas Professor Smail focused on was the practice of Predation, where if an accused person had fled and could not be tried, the courts would send their serjeants to seize or restrain their goods and property. Smail calls this practice, which can be found throughout Europe, “a form of violence by the government, made available to creditors for a small fee.”
He goes on to detail how predation was done, focusing in on the Italian city of Lucca, which during the 14th century had a population of around 20 000. From their archival records, Smail was able to find that during the 1330s, there were on average 1773 cases of seizure on annual basis – 1 in 10 households would have their goods seized each year. The use of predation was so popular, in fact, that several different courts within the city offered this service.
When courts issued a ruling of predation against an offender, their would be a three day period before serjeants would be sent to recover these goods – this waiting period may have been done to allow negotiations between the two parties, or to allow the accused to remove their most personal or valuable property.
When the serjeants did come to the house, it was often with some fanfare, with trumpets being used to announce their arrival. The serjeants would then go into the house where they would remove the moveable assets, such as clothing, rings, personal goods (if they were taking goods from homes in the countryside, they would often take food or supplies), but not larger goods like furniture. The courts also seem to have been very aware if the accused had taken his goods to a pawnbroker, and would take the goods from there too.
These goods would then be taken to auction and sold off, with most of the proceeds going to the victim, with the courts taking a small percentage for themselves.
Smail notes that there were cases were the people losing their property would confront the sergeants, verbally and physically. It is perhaps not surprising that most of the men hired to be sergeants for the courts were from outside of Lucca.
Smail also explains that honour played an important role in predation – in these cultures, it would have been very shameful for one to lose their goods in such a public fashion, and to have them auctioned off. It was probably just as a significant factor in the punishment as the actual material loss of their goods was.
The lecture also discussed the issue of contumacy – fines levied against people who were accused of serious crimes, such as murder, and had fled the city. Smail describes how common it was more people in medieval Europe to flee a city or take sanctuary in a church if they were suspected of a violent crime. In other cases they would be banished from the city for not appearing in court – during a six month period in 1337, the city of Lucca banished 191 men and 4 women. Smail found that at least 67 of these 195 exiles had returned within five years.
Having so many people being forced from the city was an important issue for the demographics of Lucca, and there were periodic amnesties were fines for contumacy were reduced. In other cases, it is clear that the assailant had returned to the city only after making some kind of peace with his victim or the victim’s family.
Historians have typically seen contumacy as the failure of medieval justice – that courts and their officials were unable to catch the accused. Smail suggests that courts actually were not interested in apprehending the accused – and had good reasons not too. If the accused person fled, the court could then condemn them on the circumstantial evidence of their flight, and not have to worry about carrying out a trial, which would take time and often be complex. Smail illustrates a case where the court issued a summons against one accused person, sent a crier to his house, who found him, and instead of arresting him, simply told him to appear the next day for his trial. Unsurprisingly, the accused did not show up as asked.
Instead, the courts levied a contumacy fine against the accused, which they would need to pay if they ever hoped to return to their homes. Because few people had enough cash on hand to pay these kind of fines, “offenders were transformed into debtors” who needed the support of family or moneylenders. In short, this allowed the larger community to decide if the person was deserving of getting his money back.
In his conclusion, Smail explains that the “regulation of debt was the major preoccupation of courts.” Court officials spent far more time on debt recovery than catching criminals, which was in their self-interest too, as these officials would get a fixed share of the goods recovered.
But when dealing with the very poor, or with foreigners, these courts showed they could act swiftly to apprehend these people and convict them. Most executions in Lucca were for poor people convicted of theft.
The lecture ended with a series of questions from the audience, which was 75 persons in all, where several issues were dealt with, including about the specifics of these systems and how they operated in day-to-day practice.