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Criminal Justice in Medieval Perugia and Bologna

Published online by Cambridge University Press:  28 October 2011

Sarah R. Blanshei
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Extract

During the past twenty years historical investigations of crime and criminal justice have increased considerably. This new subfield has been hailed enthusiastically by many of its practitioners: Douglas Hay considers it one that offers a key to ‘unlocking the meanings of eighteenth century social history.’ John Styles and John Brewer view the study of crime and law as a ‘point d'appui for a social history approach that embraces both the history of society and the issues of power and authority, an approach, in other words, that resolves the “crisis of social history.”’ Moreover, Marzio Romani describes this research as one that utilizes crime as a 'symptom,’ as a link between ‘conjuncture’ and ‘structure.’

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Law and History Review , Volume 1 , Issue 2 , Fall 1983 , pp. 251 - 275
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Copyright © the American Society for Legal History, Inc. 1983

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References

1. Hay, Douglas, ‘Property, Authority and the Criminal Law,’ in Hay, Douglas, Linebaugh, Peter and Thompson, E.P., eds., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (New York, 1975) 13Google Scholar; Brewer, John and Styles, John, eds., An Ungovernable People: The English and their law in the seventeenth and eighteenth centuries (New Brunswick, NJ, 1980) 11Google Scholar; Romani, Marzio A., ‘Criminalità e giustizia nel Ducato di Mantova alla fine del Cinquecento,’ Rivista storica italiana xcii (1980)Google Scholar. For critical evaluations of these claims, see Styles, John, ‘Criminal Records,’ The Historical Journal xxx (1979) 977–81Google Scholar, Cockburn's, J.S. review in Criminal Justice History: An International Review ii (1981) 167–72Google Scholar and editorial comments in Quaderni Storici xlix (1982) 215–16Google Scholar.

2. Examples of the approach for the eighteenth century include Beattie, John, ‘The pattern of crime in England, 1600–1800,’ Past and Present 62 (1974)Google Scholar and Cockburn, J.S., ‘The nature and incidence of Crime in England, 1559–1625: A Preliminary Survey,’ in Cockburn, , ed., Crime in England 1550–1800 (London, 1977) 49–71Google Scholar.

3. For Italy one finds historians applying a statistical approach to the study of crime much earlier, with Verga, Ettore, ‘Le sentenze criminali dei podestá milanesi, 1385–1429. Appunti per la storia della giustizia punitiva in Milano,’ Archivio storico lombardo xxviii (1901) 96–142Google Scholar; Dorini, Umberto, Il diritto penale e la delinquenza in Firenze nel se. XIII (Lucca, 1923)Google Scholar but written in 1916. For a fuller bibliography, see my ‘Criminal Law and Politics in Medieval Bologna,’ Criminal Justice History. An International Annual ii (1981) 1–30Google Scholar. There is very little attempt in those works to place criminality in an historical context. However, recent articles by Dosio, Georgetta Bonfiglio, ‘Criminalità ed emarginazione a Brescia nel primo Quattrocento,’ Archivio storico italiano cxxxvi (1978) 113–64Google Scholar and Simonetta Schioppa, ‘Le fonti giudiziarie per una ricerca sulla criminalità Perugia nel Duecento,’ Annali della Facoltà di Scienze Politiche della Università di Perugia (1981) are very much a part of this approach. For the late Middle Ages there are two major works of this type: Given, James Buchanan, Society and Homicide in Thirteenth-century England (Stanford, 1977)Google Scholar and Hanawalt, Barbara, Crime and Conflict in English Communities 1300–1348 (Cambridge, MA, 1979)Google Scholar. There are major problems with this approach, with serious doubts as to whether these data do indeed reflect behavior patterns, doubts that extend, particularly for the preindustrial period, well beyond the well-known ‘dark figure’ controversies. Soman, Alfred, ‘Deviance and Criminal Justice in Western Europe, 1300–1800: An Essay in Structure,’ Criminal Justice History: An International Annual i (1980) 1–28Google Scholar; Parker, Geoffrey and Lenman, Bruce, ‘The State, the Community and the Criminal Law in Early Modern Europe,’ in Gatrell, A.C., Lenman, Bruce and Parker, Geoffrey, eds., Crime and the Law: The Social History of Crime in Western Europe Since 1500 (London, 1980) 11–48Google Scholar.

4. Hay, ‘Property, Authority and the Criminal Law,’ supra note 1, 13.

5. The best-known works in this area for early modern England, in addition to Hay's, include Thompson, E.P., Whigs and Hunters (London, 1975)Google Scholar and ‘Patrician Society, Plebian Culture,’ Journal of Social History vii (1974) 382–405Google Scholar; Wrightson, Keith, ‘Two concepts of order: justices, constables and jurymen in seventeenth-century England’ in Brewer, and Styles, , eds., An Ungovernable People, supra note 1; Wrightson and Levine, Poverty and Piety in an English Village: Terling, 1525–1700 (New York, 1979) especially 110–41Google Scholar, 176–85; Wrightson, , English Society, 1580–1680 (London, 1982) especially 149–82Google Scholar. For a general description of the criminal justice perspective within the context of United States history, see Monkkonen, Eric H., ‘Systematic Criminal Justice History: Some Suggestions,’ Journal of Interdisciplinary History ix (1979) 465–71Google Scholar.

6. See the citations in footnote 3.

7. Antonio Pertile, Storia del diritto italiano dalla caduta dell' Impero romano alla codificazione, 6 vols., 2d. ed. (1892–1902). Gatti, Tancredi, L'imputabilità, i moventi del reato e la prevenzione criminale negli statuti dei sec. XII–XVI (Padova, 1933)Google Scholar. Certain traditional historians of crime and criminal law did attempt to link their subject to political developments, such as Dahm, Georg, Untersuchungen zur Verfassung and Strafrechtsgeschichte der italienischen Stadt in Mittelalter (Hamburg, 1941)Google Scholar.

8. Ruggiero, Guido, Violence in Early Renaissance Venice (New Brunswick, NJ, 1980)Google Scholar; Chojnacki, Stanley, ‘Crime, Punishment, and the Trecento State,’ in Martines, Lauro, ed., Violence and Civil Disorder in Italian Cities, 1200–1500 (Berkeley, 1972) 184–228Google Scholar; Becker, Marvin B., ‘Changing Patterns of Violence and Justice in Fourteenth and Fifteenth-Century Florence,’ Comparative Studies in Society and History xviii (1976) 281–320CrossRefGoogle Scholar; Cohn, Samuel Kline Jr., The Laboring Classes in Renaissance Florence (New York, 1980)Google Scholar and his ‘Criminality and the State in Renaissance Florence, 1344–1466,’ Journal of Social History xiv (1981) 211–33Google Scholar. My own work uses this perspective: Blanshei, ‘Criminal Law and Politics in Medieval Bologna,’ supra note 3, and ‘Crime and Law Enforcement in Medieval Bologna,’ Journal of Social History (September, 1982).

9. For a discussion of the Perugian court records, see Simonetta Schioppa, ‘“Il Fondo Giudiziario” del Comune di Perugia dal 1258 ad 1280,’ tesi di laurea, Università degli Studi di Perugia, Facoltà di lettere e filosofia, anno accademico 1976–1977. For the Bolognese records, see the forthcoming catalogue being prepared under the direction of Dr. Giorgio Tamba.

10. For an analysis of the ratio of accusation to inquisitio in Bologna, see my ‘Crime and Law Enforcement in Medieval Bologna,’ supra note 8. For a similar study of Perugian procedures, see Simonetta Schioppa, ‘Le fonti giudiziarie per una ricerca sulla criminalità a Perugia nel Duecento,’ 37–38 of unpublished typescript. I wish to thank Dr. Schioppa for making that article available to me prior to publication.

11. For trial by combat at Perugia, see Archivio di Stato di Perugia (hereafter ASP), Podesta 12667/67, 255v–56r. In that case one of three persons accused of assault and murder declared himself innocent and ready to prove his innocence with weapons. Ibid. 357r. For another example, see ibid. 265r. The Perugian statutes specify that crimes at night, homicide and theft can be defended per pugnam. ASP, Statuti No. 1 (1279) Rub. 310, 45r. Trial by combat is mentioned twice in the Bolognese Statutes of 1250, which specify the right to trial by combat in cases of forgery; that clause, however, is dropped in the 1288 statutes. Sella, Gina Fasoli-Pietro, Statuti di Bologna dell'anno 1288, 2 vols. (Vatican City, 1937) I, 213Google Scholar, Bk. IV, Rub. LI, ‘De pena falsorum testium et faciendum instrumenta falsa et eum vel ea producentium.’ The commune paid for the trial by combat if the fine was less than 100 pounds. Provision is made for pugiles sive campion in Luigi Frati, Statuti di Bologna dall'anno 1245 all'anno 1267 Bologna, 3 vols. (1869–1877) III, 304–5, (Statutes of 1259) Rub. LII, ‘De vindicta facienda vulneris in persona antianorum vel consulum.’

12. See Blanshei, ‘Crime and Law Enforcement in Medieval Bologna,’ supra note 8, and footnotes 51–53 of that article for documentation.

13. Wrightson, ‘Two concepts of order,’ supra note 5, 41–43.

14. See Blanshei, ‘Crime and Law Enforcement in Medieval Bologna,’ supra note 8.

15. Schioppa, ‘Le fonti giudiziarie,’ supra note 10, footnote 8 of typescript. Donatella Vanghi, ‘Il “Liber bannitorum communis Bononie” per il primo semestre del 1234,’ tesi di laurea, Università degli Studi Bologna (1976–1977) 2, 3.

16. For Perugia, ASP, Statuti No. I, Rub. 11, 2v–3v, ‘De Officio pot. et suorum jud. et not.’ (The 1279 statutes do not give information on the capitano del popolo 's judges and notaries, since that information would have been included in the separate statutes of the popolo, which have not surivived.) Azzi, Giustiniano degli, Statuti di Perugia dell'anno MCCCXLII (Rome, 1913–1916), Bk. I, Rub. 25Google Scholar, ‘Quagle essere deggano le podestade e ‘l capetanio. E del loro salario e famegla.’ Ibid. Bk. I, Rub. 13, ‘De la divisione de gl'ofitie de gl'ofitagle de la posestade del capentanio.’ ASP, Capitano 1342–43 (Nos. 271–73) Reg. 2, 1343, 9v. Vanghi, “Il Liber bannitorum communis Bononie,” supra note 15; Frati, Statuti di Bologna, 1245–1265, supra note 11, 1, 73, Bk. I, Rub. 3.

17. Fasoli-Sella, Statuti di Bologna, supra note 11, I, 581, Bk. V, Rub. LCIII, ‘[Ordinamenta facta sub anno Domini millesimo ducentesimo nonagesimo quinto].’ Pini, Antonio-Ivan, ‘Un aspetto dei rapporti tra città e territorio nel Medioevo; la politica demografia “ad elastico” di Bologna fra il XII e il XIV secolo,’ Studi in memoria di Frederico Melis (Florence, 1978) I, 365–608Google Scholar.

18. Green, Thomas A., ‘The Jury and the English Law of Homicide, 1200–1600,’ The Michigan Law Review 74 (1976) 413–27CrossRefGoogle Scholar, esp. 415, shows that Angevin reforms of the criminal laws and the growth of royal jurisdiction in the twelfth century over all felonies ‘… blurred the former distinctions among felonies. No longer were there botless and emendable felonies; all were capital.’ Evelyn S. Procter, ‘The Judicial use of Pesquita (Inquisition) in Leon and Castille, 1159–1369,’ The English Historical Review Supplement 2, vi (London, 1966)Google Scholar and her Curia and Cortes in Leon and Castile, 1072–1295 (London and New York, 1980)Google Scholar shows that in the Spanish Kingdoms inquisition procedure was associated with corporal penalties and private accusations with pecuniary penalties. For France see Esmein, A., A History of Continental Criminal Procedure (New York, 1968Google Scholar; reprint of 1913 edition) 78–144.

19. Nicholas, David M., ‘Crime and punishment in fourteenth-century Ghent,’ Revue belge de philologie et d'histoire xlviii, pt. 1 (1970) 289–334CrossRefGoogle Scholar, 1143–76.

20. Homicide is defined in the Perugian statutes of 1279 as slaying other than in self-defense, war or ludus armatorum (the armed games). ASP, Statuti No. 1, Rub. 281, 42r. In Bologna the definition of homicide was slaying except in certain circumstances: if the accused were fourteen years or younger, if the slaying were by casu fortuitu or if the victim had been under decree of criminal banishment. Frati, Statuti di Bologna, 1245–1267, supra note 11, III, 234–35, Bk. X, Rub. CVII, ‘Hec sunt Ordinamenta populi.’ The Bolognese statutes of 1288 add to these exemptions vel a furioso. FasoliSella, Statuti di Bologna, supra note 11, I, 204, Bk. IV, Rub. XXXVIII, ‘De pena homicide vel homicidium fieri facientis.’ In addition, if the slaying were an act of revenge by the victim against his or her offender, the act was exempt. Frati, Statuti di Bologna, supra note 11, 1, 226, Bk. II, Rub. XIV, ‘De pena fatiendis vindictam preter qui fecerit vindictam vel fieri fecerit in alium preter quam in offendentem.’

21. ASP, Podesta, 1266 (Busta 4) 85v, 87r, 135r, and 164r for the earliest examples of five-year periods of expulsion in Perugian homicide bans. At Perugia the five-year period applied to those in custody as well as to those contumacious, in addition to fines. The five-year period (ten years for homicide committed at night) is also prescribed in the earliest surviving Perugian statutes, those of 1279. ASP, Statuti No. 1, Rub. 281, 42r. The statutes specify a hierarchy of monetary penalties, but the fines in the bandi and sentenze of the thirteenth century are always given as 500 pounds for homicide by day and 1,000 at night. In both cities bans for homicide were regularly cancelled: ASP, Podesta, 1243–1262 (Busta 9) 200v (1243): Johannes Albertucij was under ban for the homicide of his sister (he had struck her with a knife, and she died from the wound). The fine was 500 pounds, and ban was cancelled on May 9, 1246; Ibid. 222r for a homicide ban of 1262, with a fine of 500 pounds that was cancelled on September 25 of the same year. For cancellations in the 1234–1235 bandi in Bologna, see Blanshei, ‘Criminal Law and Politics,’ supra note 3, 6.

22. Frati, Statuti di Bologna, 1245–1267, supra note 11,1, 260–61, Bk. II, Rub. VII (1250): ‘De eo qui pretio vel pretibus aliquem vulneraverit.’ The ban in such a case was perpetual, and all property was confiscated. At Perugia someone charged with ordering a homicide had the option of paying the fine and thereby avoiding corporal punishment. He or she faced capital punishment only if the fine could not be paid. This was still the practice of 1262, when a woman who had ordered a homicide was placed under a 1,000-pound ban, and the penalty if she were captured and unable to pay the fine was immolation. ASP, Podesta, 1243–1262 (Busta I) 279v (1262).

23. A law to this effect is included in the Statutes of 1279, but was apparently being applied earlier, at least by 1247. The bandi records of that year include one such case in the victim's home: Venturella Rainaldi had killed Nicholecta, wife of Bonaventure Clare, in her home at night. The language of the ban carefully ascertained that Nicholecta was indeed killed in her home ‘owned by Balglonis Oddonis and located next to the market in the parish of S. Maria del Mercato,’ and consequently imposed a perpetual ban upon the accused, confiscated his properties and specified decapitation if he were ever captured. ASP, Statuti No. I (1279) Rub. 282, ‘Qualiter qui hociderit aliquem in domo sua vel in villa quam habitaret puniatur,’ 42v (this rubric calls for perpetual ban of accused if he were not captured, with all his properties to be confiscated). Also Langeli, Attilio Bartoli and Corbucci, Maria Paola, ‘I “libri dei banditi” del commune di Perugia (1246–1262),’ Bollettino della Depulazione di storia patria per l'Umbria 75 (1978) 151Google Scholar, Case No. 31. Venturella also stole some goods from Nicholecta's home, and those goods were subsequently discovered in Venturella's rented lodgings.

24. For the statute concerning a vagabond or foreigner, ASP, Statuti No. 1 (1279) Rub. 282, 43v, ‘Qualiter inculpatus de homicidio si non erit confessus vel testibus convictur se posse defendere;’ for a parricide or matricide, ibid. Rub. 294, 44r, ‘Qualiter puniatur qui patrem interfecerit vel matrem vel verberaverit, et qualiter malefitia commissa inter consanquineos non puniantur;’ for killing one's lord, ibid. Rub. 284, ‘Qualiter puniatur famulus hocidens hominum suum;’ for hired assassins, ibid. Rub. 281, 42r, ‘Qualiter puniatur qui fecerit homicidium.’ The same law provides for the composition of homicide by monetary penalty: if the homicide were committed by day, the fine was 500 pounds; if by night, the fine was doubled. If the accused could not pay those sums, he or she was required to pay 100 or 200 pounds or more (depending upon whether the crime had been committed by day or by night and upon the accused's ability to pay). In addition to the fines, the penalty included banishment, five years for homicide by day, ten years by night. If the 100 and 200-pound minimum fines could not be paid, the accused was to have his or her right hand amputated and was to pay 50 pounds (if by day) or 100 pounds (if by night) and was to have the period of banishment extended to twenty years. Finally, if even the 50 or 100-pound minimum fines could not be paid, then the condemned suffered decapitation. Two-thirds of the fine went to the commune, one-third went to the heirs of the victim and all property (towers, homes, vineyards, trees) was destroyed. These laws from the Statutes of 1279 were probably in effect much earlier than that year. For example, from 1277 there is a case of a servant killing his lord and receiving a perpetual banishment, with decapitation if ever captured, as his sentence. ASP, Podesta 1277/6, 119v and 120r. See also, Schioppa, ‘Le fonti giudiziarie,’ supra note 10, 37 and footnotes 129 and 130 of typescript.

25. ASP, Statuti No. 1 (1279) Rub. 285, 43r, ‘Qualiter puniatur qui commiserit homicidium in locis determinatis.’ The communal piazza was the first ‘special place’ to be protected by a double penalty against homicide. The earliest such case I have found is that of Venturella Boruncii who murdered Bos the blacksmith with a knife in the communal piazza, and who, since he was contumacious, was banished with a fine of 1,000 pounds and had his properties destroyed; Langeli-Corbucci, ‘I “libri dei banditi,”’ supra note 23, 164, Case No. 85. Doubling of homicide fines in other ‘special places’ such as one of the five major thoroughfares must have been recent additions to the 1279 statutes since as late as 1275, a homicide committed in such a place still carried only a 525-pound penalty (500 pounds for the homicide and an additional 25 pounds for carrying weapons in the city streets). ASP, Podesta, 1262–1275 (Busta 5) 126r (1275).

26. The fines for assault were also doubled in ‘special places.’ ASP, Statuti No. 1, (1279) Rub. 287, ‘Qualiter puniatur percutiens aliquem cum armis.’ Fines were also increased for all crimes, including homicide, committed during, or eight days before or after, the Festival of S. Ercolano in February (S. Ercolano was the patron saint of Perugia). ASP, Podesta 1280–1285 (1284, Reg. 1) 4v. For similar double penalties for crimes committed on feast days in Florence, see Richard Trexler, ‘Ritual Behavior in Renaissance Florence: The Setting,’ Medievalia et Humanistica, n.s., iv (1973) 138. The saint would be ‘dishonored … if a supplicant were severely wounded or murdered while publicizing his devotion.’

27. ASP, Statuti No. 12, Statuta comunis et populi Perusii (1308–1318) Bk. IV, Rub. 83. The law is difficult to date but seems to be part of a series from the 1290s. That the law was in effect by 1296 is indicated by a case of that year concerning a homicide committed in the cathedral of S. Lorenzo, a church that was located near the communal piazza. Paulucius domini Trebaldi Fortis and Cola Avultroni ordered Bernarducius Fomasii to kill Bonaspene Jannis, and Bernarducius carried out the slaying in the cathedral. The case was considered to be an opus mali exempli, and punishment of the culprits was to be an exemplum to bridle such audacity. Both Paulucius and Cola were in custody and were sentenced to the penalties specified in the statutes for those ordering homicide, that is, double fines. The person who actually committed the homicide, Bernarducius, was contumacious and therefore banned, and his sentence called for his decapitation if he were ever captured. All of his property was confiscated. ASP, Podesta, 1297/8, Reg. 1 (1295–1296) 103rv–107r (April, 1296).

28. For double fines for recidivists, magnates and those ordering a homicide, ASP, Statuti No. 12, Bk. IV, Rub. 82. For contadini, see ibid. Rub. 63. The new statutes also included capital punishment for cases that were not included in the 1279 statues: Ibid. Rub. 237 calls for capital punishment in the killing of the podesta, his judge or notary. Communal officials may have had such protection much earlier, however, as is indicated by a case in 1286, in which Ognabenus qui dicitur tronca longa, once a scutifer of the podestà, killed another scutifer, Niger de Brixia, in the communal piazza and therefore was banished perpetually with decapitation if ever captured. (ASP, Podesta 1286–1288, 83v.) The law assigning double fines to those ordering a homicide is dated 1294, but this law was also in effect earlier since there were such cases in 1287: in that year Armanuccius Jacobi and Georgius de Asisio, who lived in the Perugian contado, in the village of Casa Castalde, were hired by three other men of their village, Johanellus Jacobi, his brother Vilanus and Masinellus filius Egidij to kill, for 100 pounds, Junctollus Inhani, who lived in the city. Both Armanuccius and Georgius were banished perpetually as manumondolos et assasinos with decapitation their penalty if ever captured. The three men who hired them were banished with a penalty of 1,000 pounds each, doubled because they had ordered the crime. ASP, Podesta 1286–1288/1287, Reg. 1, 59rff. Fora similar case a year earlier, see Podesta 1286–1288, 118rv and 124rv.

29. ASP, Statuti No. 12, Bk. IV, Rub. 85.

30. ASP, Statuti No. 12, Bk. IV, Rub. 86. In May 1296 Cecholus Acursoli, parish of S. Marie Nove, P. Solis, killed Petrucius de Monte Falso, a forensis, was contumacious and therefore banished with a fine of 100 pounds, with an additional one-quarter penalty for his contumacy. ASP, Podesta, 1297–1298, 1296, Reg. 1, 109r–110r. In 1305 Blasius Jacobi, parish of S. Marie de Uliveto, Porta Eburnea, killed Jacobus de Passolinis, but because Jacobus was a civem romanum the slayer, who was in custody and who confessed to the crime, only received a penalty of 100 pounds. After he posted securities for that amount to the massarius comunis, he was released from custody. ASP, Podesta, 1304–1305, Reg. 2, 1305, 3rv. The addition of a contumacy penalty at Perugia, set at one-quarter of the original fine, dates from 1281. The court records of 1282 refer to the additional penalty as ‘according to the form of the new statutes against those contumacious,’ made by the consules et rectores artium on November 26 of the previous year. ASP, Podesta, 1280–1285, Reg. 1 (1282) 2r.

31. The new penalties appear for the first time in the court records in 1343, which is as would be expected since the 1342 statutes went into effect in April 1343, according to the modern editor of the statutes. The statutes of 1342 remained the law until 1389. Azzi, Statuti di Perugia, supra note 16, I, xii. Thus in January 1343, Angelusius Petri de Casalina, a domicellus and familia of the abbot of the monastery of S. Pietro, was banned for homicide; his 500-pound fine was doubled because the crime was committed within six paces of one of the vie regalie, then doubled again because this was a case of a contadino attacking a cives (which brought the fine to 2,000 pounds), and to this sum was added an additional one-quarter penalty for contumacy for a total penalty of 2,500 pounds. If ever captured, Angelusius, if unable to pay the minimum of 1,500 pounds, or as much of that as he could according to his resources, would be decapitated. Angelusius's ban was finally cancelled in 1353, when he paid twenty florins. His fine was thus calculated on a base of 500 pounds for homicide by day, which was the fine called for in the 1308–1318 statutes. Only after April 1343 do the new, higher fines appear in the sentences and banishment records. Thus, a banishment penalty for homicide in 1344, doubled because it occurred within eight days after the Festival of S. Ercolano, and doubled again because committed at night, came to 2,400 pounds: the basic fine was 600 pounds, as called for in the Statutes of 1342. ASP, Capitano, 1343–1344 (Nos. 275–78) Reg. 5, No. 278 (1344) 71rv.

32. Azzi, Statuti di Perugia, supra note 16, II, Bk. III, Rub. 63. Alternative penalties also were increased; those who could not pay the full amount of the fine faced higher minimum fines, which ranged from 200 pounds in 1318 to 400 pounds in 1342 for homicide by day and from 400 to 800 pounds for homicide by night. The five and ten-year periods of expulsion that accompanied partial payments in 1318 were also increased to ten and twenty years respectively, although if the accused were able to obtain a formal peace agreement with the heirs of the victim, the periods of expulsion were reduced to five and ten years.

33. Frati, Statuti di Bologna, 1245–1267, supra note 11, III, 234–35, Bk. X, Rub. CVII, ‘Hec sunt Ordinamenta populi.’

34. Ibid. III, 235, Bk. X, Rub. CVII (1248), ‘Hec sunt Ordinamenta populi,’ and III, 278–279, Bk. XI Rub. VIII (1259–1262). ‘De hiis qui non possunt exigere de banno pace vel concordia vel alio modo.’ Fasoli-Sella, Statuti di Bologna, supra note 11, 1, 306–8 (1288) Bk. V, Rub. XIIII, ‘De banitis qui perpetuo non possunt eximi de banno et penis cancellantium eos et consulentium et petitiones recipientium in contrarium.’

35. Both laws appear in 1282 and 1284 popolo ordinances and in the 1288 version of the statutes that included both the popolo and the communal statutes, but by 1288 the homicide rubric had been incorporated into the communal statutes. Although originally promulgated in 1248, the popolo ordinances concerning the pax in homicide cases seem only to have been enforced during the 1280s. See Blanshei, ‘Crime and Law Enforcement in Medieval Bologna,’ supra note 8.

36. Frati, Statuti di Bologna, 1245–1267, supra note II, I, (Statutes of 1250) Bk. II, Rub. LI, ‘De rapina facta de homine vel muliere.’

37. Fasoli-Sella, Statuti di Bologna, supra note 11, 1, 197, Bk. IV, Rub. XXXII, ‘De pena rappientis hominem vel mulierem.’

38. Ibid. 195, Bk. IV, Rub. XXX, ‘De pena adulterium et strupum vel incestum committentis tam in masculo quam in feminis.’ Male rape carried a penalty of immolation. If the victim consented, he was also immolated.

39. Banishment sentences sometimes called for a capital penalty in rape cases if the accused were ever captured; Archivio di Stato di Bologna, Accusationes No. 4, Reg. 12, 5v, 6v, 7v (1283 II); Ibid. Reg. 28 (1285 II) 21v, 23v–24r. For cases of banishment for rape with a 1,000-pound penalty, Ibid. Inquisitiones 1285, Mazzo I, Reg. 2, 153r–160r.

40. ASP, Statuti No. 12 (1308–1318) Bk. IV, Rub. 96 (with addition dated 1306).

41. Fasoli-Sella, Statuti di Bologna, supra note 11, 1, 197–201, Bk. IV, Rub. XXXIII,‘De Lenonibus et meretricibus et eorum recipientium.’

42. ASP, Statuti No. 12 (1308–1318) Rub. 122. For an example from the court cases, ASP, Podesta, 1297–1298, Reg. 1, 1296, 119r, where a person keeping a bordello in the burgo of Porta San Pietro was fined 50 pounds, half of which went to the commune, half to his accuser.

43. For example, Pertile, Storia del diritto italiano, supra note 7, V, especially 524–84, 598–600; Calisse, Carlo, A History of Italian Law (Boston and New York, 1928 and 1969Google Scholar, condensation and translation of his Storia del Diritto italiano, 2d ed., Florence, 1903) 173–76, 393–94, 403–13Google Scholar. There were notable exceptions, such as Gino Arias, who briefly noted certain of the juridical changes of the thirteenth century and was very suspicious of the usual ascription of those changes to the influence of Roman law. Arias's Marxist interpretation closely tied criminal justice to economic development. Arias, I sistema della costiuzione economica e sociale italiana nell' età dei comuni (Rome, 1970, rpt.: Turin, 1905) 353–61Google Scholar, and his Istitutioni giuridiche medievali nella ‘Divina Commedia’ (Florence, 1901)Google Scholar. Dahm, Untersuchungen zur Verfassung und Strafrechtsgeschichte der italienischen Stadt in Mittelalter, supra note 7, was one of the first to recognize the importance of political developments, especially the rise of the popolo, in law reform.

44. Kantorowicz, Hermann, Albertus Gandinus und das Strafrecht (Leipzig, 1926) IIGoogle Scholar, ‘De transactione et pace in maleficiis faciendis,’ especially 194.

45. On the ease with which one can overstress the importance of the fiscal motive, see Caenegem, R.C. Van, The Birth of the English Common Law (London, 1973) 102–4Google Scholar.

46. See Blanshei, ‘Criminal Law in Medieval Bologna,’ supra note 3.

47. One of the first historians to link criminal justice reform and the popolo movement was Lodovico Zdekauer. See his ‘Statuti criminali del foro ecclesiastico Senese,’ Bullettino Senese di Storia Patria vii (1900) 231–59Google Scholar, which refers to increasing severity in Siena's criminal laws under the popolo regime of 1269–1298. Also Mondolfo, Ugo, II Populus a Siena nella vita della città e nel governo del commune fino alla riforma antimagnatizia del 1277 (Genoa, 1911) 25–42Google Scholar, 82–83; and Dahm, Untersuchungen zur Verfassung und Strafrechtsgeschichte der italienischen Stadt in Mittelalter, supra note 7, 47–48, 71 cited and further developed by Pazzaglini, Peter Raymond, The Criminal Ban of the Sienese Commune, 1225–1310. Quaderni di ‘Studi Senesi’, xlv (Milan, 1979)Google Scholar. Of course the popolo was not the only popular movement to influence the criminal law. Religious movements that sought harsher penalties for moral sins such as sodomy and prostitution also played a role. See Blanshei, ‘Criminal Law and Politics in Medieval Bologna,’ supra note 3.

48. Ansidei, V., Regestum reformationum Comunis Perusii ab anno MCCLVI ad annum MCCC (Perugia, 1935) I, 162–66Google Scholar. The text of Ordinamenta is also edited in Grundman, John Paul, ‘The Popolo at Perugia (1139–1309)’ (unpublished Ph.D. dissertation, Washington University, 1974) II, app. 3, 510–13Google Scholar.

49. For constitutional changes and parallel reforms in taxation, grain policy and criminal law, see Blanshei, , ‘Perugia, 1260–1340: Conflict and Change in a Medieval Italian Urban Society,’ Transactions of the American Philosophical Society (Philadelphia, 1976) 53–66Google Scholar. For a much more detailed narrative of Perugian political developments in the thirteenth century (which does not, however, treat anti-magnate legislation), see Grundman, ‘The Popolo at Perugia,’ supra note 48.

50. The 1248 legislation is edited in Frati, Statuti di Bologna, 1245–1267, supra note 11, 111, 234–35, Bk. X, Rub. CVII, ‘Hec sunt Ordinamenta populi.’ For the 1292 legislation, Fasoli-Sella, Statuti di Bologna, supra note 11, 1, 356–404; also xxiv and Fasoli, Gina, ‘La legislazione antimagnatizia a Bologna fino al 1292,’ Rivista di storia del diritto italiano xi (1933) 377–83Google Scholar. For political developments in Bologna, see Hessel, Alfred, Storia della città di Bologna dal 1116 al 1280 (Bologna, 1975)Google Scholar; original title: Geschichte der Stadt Bologna von 1106 bis 1280 (Berlin, 1910)Google Scholar; Vitale, Vito, Il dominio della parte guelfa in Bologna, 1280–1327 (Bologna, 1901)Google Scholar; Gorreta, Alma, La lotta fra il comune bolognese e la signoria (Bologna, 1906 and 1975)Google Scholar; Palmieri, Arturo, Rolandino Passaggeri (Bologna, 1933)Google Scholar and his La Montagna bolognese nel medio evo (Bologna, 1929 and 1977)Google Scholar.

51. The socioeconomic composition of the popolo and the relationship of social structure and ideology is a long-debated historiographical issue, but there is a general acknowledgement at present that the popolo-magnate struggle was more than the conflict of indistinguishable groups pursuing narrow self-interests and that popolo ideology was more than ‘empty rhetoric’ For an example of current historiography, see the most recent general history of the period: Larner, John, Italy in the Age of Dante and Petrarch 1216–1380 (London and New York, 1980) especially 122–24Google Scholar. The popolo party wished to impose new standards of behavior upon society as a whole. Not the poor, but the rich—the ‘great’ men of society—were to conform to the new standards. Most of the new laws—the so-called ‘anti-magnate laws’ —were specifically aimed toward certain members of the elite. In the eighteenth century, in contrast, reforms were directed consciously and exclusively against the poor. Wrightson and Levine, Poverty and Piety in an English Village, supra note 5, 140, 179–81.

52. Public prosecution of crime was directed first of all against hired assassins and thieves, who were viewed as ‘marginals,’ as people outside society. Such people, who usually were foreigners, did comprise the majority of people actually captured and punished during the period of the enforcement of popolo laws. See Blanshei, ‘Crime and Law Enforcement in Medieval Bologna,’ supra note 3.

53. Frati, Statuti di Bologna, 1245–1267, supra note II, III, 328–29, Bk. XI, Rub. LXXCIII (1259–1262) ‘De penis trahentium ad rixam vel adunanciam vel rumorum tam civium quam comitatinorum et aliorum forensium.’

54. ASP, Statuti No. 12 (1308–1318) Rub. 202–37. Popolo-oriented motivation behind increasingly severe penal legislation can also be seen in a 1314 revision of the Perugian homicide laws that established capital punishment as the penalty for homicide committed in the home of the victim. The new addition extended such protection to an artisan struck or killed in his place of work. Ibid. Rub. 38. Another example is the provision in the Perugian Ordinamenta Artium of 1315 that the penalty for carrying a banner or insignia into the communal piazza or forum or into any other public place was decapitation and confiscation of property. Ibid. Bk. VIII, ch. 9.

55. Fasoli-Sella, Statuti di Bologna, supra note 11, 1, 285–90, Bk. V, Rub. II, ‘De processu faciendo contra magnates et ecclesiasticas personas offendentes homines societatus populi Bononie, et de penis offendentium ipsos de populo et eorum qui darent ipsis malefactoribus consilium vel favorem, et privilegio ipsorum popularium contra magnatas et alios qui non sunt de societatibus.’

56. Montorsi, William, Statuti Farrariae anno MCCLXXXVII (Ferrara, 1955) Ixxix–xcl, 264Google Scholar–65.

57. For the interweaving of anti-magnate and anti-Lambertazzi goals, see the discussion of Book V of the 1288 statutes (the popolo ordinances) by Cavalca, Desiderio, Il bando nella prassi e nella dottrina giuridica medievale (Milan, 1978) 104–8Google Scholar. The interlocking of party and faction made the anti-magnate laws at Bologna more onerous than those at Perugia. At Bologna, but not at Perugia, the magnates had to post 1,000-pound securities to guarantee their good behavior. Fasoli-Sella, Statuti di Bologna, supra note 11, 1, 308–312, Bk. V, Rub. XVI, ‘De Satisdatione prestanda ab infrascriptis nobilibus civitatis vel districtus Bononie, et de pennis eorum qui non darent dictam satisdationem et de fidantia eis danda ratione predicta.”

58. ASP, Statuti No. 12 (1308–1318) Rub. 202.

59. ASB, Curia del Capitano del Popolo.

60. The pertinent rubric in the monthly inquisitions calls for reporting anyone from the Geremei party who made any tie or relationship with anyone from the Lambertazzi party. ASB, Inquisitiones, 1289, 11, Reg. 1.

61. Fasoli-Sella, Statuti di Bologna, supra note 11, I, 367–69, Bk. V, Rub. LXXI, ‘De reformationibus impositis facientibus parentelam vel aliquid alium cum bannitis pro parte Lambertaciorum vel aliis quibusdam.’

62. Ibid. I, 196, Bk. IV, Rub. XXXII ‘De pena rappientis hominem vel mulierem.’

63. The fines were 1,00 pounds for a miles, or noble, 500 pounds for a popularis, as in ibid, and in the anti-Lambertazzi rubric in Ibid. I, 367–69, Bk. IV, Rub. LXXI, ‘De reformationibus impositis facientibus parentelam vel aliquid aliud cum bannitis pro parte Lambertaciorum vel aliis quibusdam.’

64. Cf. Koenig, J.C., ‘The Popolo of Northern Italy (1196–1274): A Political Analysis’ (unpublished Ph.D. dissertation, University of California, Los Angeles, 1977)Google Scholar.

65. In the mid-90s the less intransigent Geremei faction, which favored reconciliation with the Lambertazzi, had the support of the guilds and armed societies. Thus the popolo at that point was supporting a group that favored readmission of banniti, and since readmission of Lambertazzi banniti was very tightly linked with the readmission of criminal banniti, the moderate-Geremei/popolo faction was no longer opposed to the use of the pax, and thus no longer supportive of that key aspect of the popolo reform movement. Vitale, Il dominio in Bologna, supra note 50, 83–88.

66. Grundman, ‘The Popolo at Perugia,’ supra note 48, 1, 294–95.

67. Langbein, John H., ‘Albion's Fatal Flaws,’ Past and Present 98 (1983) 96–120CrossRefGoogle Scholar.

68. The importance of the legal profession in communal life has been recognized by scholars, but as yet little research has been done on this subject. For a general survey, see Sbriccoli, Mario, L'interpretazione dello statuto. Contributo allo studio delta funzione dei giuristi nell' età comunale (Milan, 1969) especially 49–81Google Scholar, and the brief overview by Fasoli, Gina, ‘Giuristi, giudici e notai nell’ ordinamento comunale e nella vita cittadina,’ Atti del convegno internazionale di studi accursiani. Bologna, 1963 (Milan, 1968) 27–39Google Scholar. (Rpt.: Bocchi, F., Carile, A., Pini, A.I., eds., Scritti di storia medievale, Bologna, 1974, 609–22Google Scholar.) Manlio Bellomo has written a study of one family of jurists in thirteenth and fourteenth-century Bologna: ‘Una famiglia di giuristi: i Saliceto di Bologna,’ Studi Senesi lxxxi (1969) 387–417Google Scholar. Bellomo's study shows how deeply involved in political life such a family could be.

69. A number of thirteenth-century consilia have been published, and on the basis of those edited in the Chartularium Studii Bononiensis, 13 vols. (Bologna, 1909–1939) for example, I, 156–57, 127–28, 136–37, 271Google Scholar, Guido Rossi hypothesized that the factual or informational type consilium predominated in the second half of that century. Rossi, , Consilium sapientis iudicale, Studi e ricerche per la storia del processo romano-canonico, I (secoli XII–XIII) (Milano, 1958) 263Google Scholar. Rossi did not examine unpublished consilia, but my own archival research, which includes all extant records of the Bolognese courts of both the captain and the podestà, confirms Rossi's thesis: the consilia concern procedural matters, the status of the individuals, the efficacy of peace agreements, and opinions on whether banishment decrees had been properly promulgated. ASB, Inquisitiones 128, Mazzo II, Reg. 4, 125r. Although the doctrine of ‘interpretation’ (described by Sbriccoli as the process of extending the meaning of the law by using Roman law as the ius commune) was being developed in the late thirteenth and early fourteenth century, the extant Bolognese consilia of that period give no evidence of serving that function. Sbriccoli, L'interpretazione dello Statuto, supra note 68, 437.

70. Blanshei, ‘Perugia, 1260–1340,’ supra note 49, 56; Judges and notaries were classified with the milites, or knights, in the Ordinamenta Populi of 1260 and therefore were excluded from membership in the popolo party. Grundman, ‘The Popolo at Perugia,’ supra note 48, II, App. iii, 512.

71. Gaudenzi, Agostino, ed., Statuti delle società delle armi del popolo di Bologna, I (Rome, 1889) 322Google Scholar, 267. ASB, Riformagioni No. 2, April 14 and 16, 1293, 168v–169v; Gaudenzi, , ed., Statuti delle società del popolo di Bologna (Rome, 1896) II, 535Google Scholar.

72. In 1303 Dominus Ubaldinus de Galluciis became a doctor legum and also a miles, or belted knight. ASB, Provvigioni … minori consigli, No. 3, 108rv. For the particular Bolognese families, see Sarti, Mauro and Fattorini, Mauro, De claris Archigymnasii bononiensis professoribus a saecolo XI usque ad saeculum XIV (2d. ed. by Foroliviensis, Caesar Albicinius and Ravennas, Carlus Malagola) (Bologna, 1888–1896) II, 216–17Google Scholar. Other doctors of law from prominent families included Dominus Acharixius de Baxacomatribus, (ASB, Libri venticinque, Busta 15) and Dominus Egidius Malavoltis, doctor legum, (Ibid. Busta 17, 1307). The prominence of the jurists and judges at the centers of power can be demonstrated by analysis of the sapientes who formed an ‘advisory group’ for the executive body in 1303. In that year the sapientes frequently included six jurists: Dominus Ubaldinus de Mallavolitis, Dominus Bonicentus de hospitali, Dominus Pax de Pacibus, Dominus Jullianius Cambij (who had helped revise the statutes in 1288), and Dominus Jacobus de Ugnano. ASB, Provvigioni … con. minori, No. 3, 79r. Also see Sorbelli's list from the 1317 matricula. Sorbelli, Albano, Il'Liber secretus iuris caesari' del' università di Bologna I (Bologna, 1938) cviGoogle Scholar.

73. Thus in 1292 families with a miles were exempt from the necessity to post securities if the family had belonged to the merchants' or bankers' guilds prior to the past fifteen years. Fasoli-Sella, Statuti di Bologna, supra note 11, 1, 356–58, Bk. V, Rub. LXVI, ‘De penis impositis contra magnates et alios committentes malefitium vel fieri facientes in personas alicuius de societatibus populi Bononie vel in quosdam de civitate Bononie, et de securitate prestanda per ipsos magnates.’

74. ASB, Matricula, Busta 2. Other families who counted a miles among their members who were enrolled in the bankers' and merchants' guilds included the Foscarii, the Bazalerii, the Lambertinis, and the Hoxilitis. Dominus Rolandus de Foscariis was expelled from the notaries' guild in 1274 because he was the brother of a miles. ASB, Matricula, Busta 1.

75. ASB, Matricula (1294) Busta 2. The ambiguous social position of such families who were enrolled in popular guilds yet had a miles within the family had a parallel in the Lambertazzi families who were readmitted into Bologna in 1287 and were designated as confiniti de garnata. They could be forced to leave the city immediately for preassigned places of banishment at the order of the captain. Such families were excluded from all guilds except those of the bankers, merchants and judges, although they were not permitted to hold the office of anziano or be a member of the Council of the People. Vitale, Il dominio in Bologna, supra note 50, 60–64; Fasoli-Sella, Statuti di Bologna, supra note 11, I, 505, Bk. V, Rub. CXXXXVI, ‘Quomodo et qualiter confinati de garnata possint redire a confinibus dum iverint.’

76. Heywood, William, A History of Perugia (London, 1910) 151Google Scholar.

77. Ferrara, Roberto, ‘“Licentia exercendi” ed esame di notariato a Bologna nel secolo XIII,’ Notariato medievale bolognese II. Atti di un convegno (February, 1976) (Rome, 1977) 91–92Google Scholar, 115–17.

78. The court records show that Bolognese filled positions on the court of the mallificiorum novorum, which heard most contado cases until 1294. For examples, ASB, Ace. 4, Reg. 14 (1284, I); Inquistiones 1286, Mazzo I, Registers 6–8, 13 and 16.

79. Bini, Vincenzo, Memorie istoriche della Perugina universiià (Perugia, 1816) I, 36–38Google Scholar; Storia del diritto romano nel medio evoper F. Carlo de' Savigny, trans, by Bollati, Emmanuele (Turin, 1854) I, 627Google Scholar. According to the Perugian statutes of 1342, university professors had to be foreigners, except for the teacher of notarial art. There were, however, famous exceptions to this law, such as the Ubaldi brothers. Ermini, Giuseppe, Storia della Università di Perugia (Bologna, 1974)Google Scholar; Sheedy, Anna T., Bartolus on Social Conditions in the Fourteenth Century (New York, 1942) 12, 22–24Google Scholar.

80. Blanshei, ‘Criminal Law and Politics in Medieval Bologna,’ supra note 3, 7, 15–17.