Public Justice and the Criminal Trial in Late Medieval Italy Reggio Emilia
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Public Justice and the Criminal Trial in Late Medieval Italy Medieval Law and Its Practice Edited by John Hudson (St. Andrews) Editorial Board Paul Brand (All Souls College, Oxford) Emanuele Conte (Università Roma Tre/ehess, Paris) Dirk Heirbaut (University of Ghent) Richard Helmholz (University of Chicago) Caroline Humfress (Birkbeck, London) Magnus Ryan (Peterhouse, Cambridge) Robin Chapman Stacey (University of Washington) Volume 20 The titles published in this series are listed at brill.com/mlip Public Justice and the Criminal Trial in Late Medieval Italy Reggio Emilia in the Visconti Age By Joanna Carraway Vitiello LEIDEN | BOSTON This is an open access title distributed under the terms of the Creative Commons Attribution-Noncommercial 3.0 Unported (CC-BY-NC-ND 3.0) License, which permits any non-commercial use, distribution, and reproduction in any medium, provided no alterations are made and the original author(s) and source are credited. Cover illustration: Detail of an historiated initial ‘I’(udex) of a judge. Royal 6 E VII f. 345. ©The British Library. Library of Congress Cataloging-in-Publication Data Names: Vitiello, Joanna Carraway, author. Title: Public justice and the criminal trial in late medieval Italy : Reggio Emilia in the Visconti age / By Joanna Carraway Vitiello. Description: Leiden : Brill, 2016. | Series: Medieval law and its practice | Includes bibliographical references and index. | Description based on print version record and CIP data provided by publisher; resource not viewed. Identifiers: LCCN 2015045347 (print) | LCCN 2015044781 (ebook) | ISBN 9789004311350 (E-book) | ISBN 9789004307452 (hardback : alk. paper) Subjects: LCSH: Criminal procedure—Italy—Reggio Emilia—History. | Criminal justice, Administration of—Italy—Reggio Emilia—History. Classification: LCC KKH9860.R453 (print) | LCC KKH9860.R453 V58 2016 (ebook) | DDC 345.454/30509024—dc23 LC record available at http://lccn.loc.gov/2015045347 Want or need Open Access? Brill Open offers you the choice to make your research freely accessible online in exchange for a publication charge. Review your various options on brill.com/brill-open. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1873-8176 isbn 978-90-04-30745-2 (hardback) isbn 978-90-04-31135-0 (e-book) Copyright 2016 by the Author. This work is published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. 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To Jill and Deb ∵ Contents Acknowledgements ix Abbreviations xi Introduction Justice, Power, and Context 1 Inquisition, Authority, and Adaptation 2 Local Variations in Criminal Procedures 6 Late Medieval Justice: A Case Study 9 1 Power, Jurisdiction, and Criminal Investigation 13 The Signore and the Law at Reggio Emilia 22 Municipal Statutes 23 Foreign Rectors 25 1 Office of the Podestà at Reggio Emilia 26 2 The Criminal Judge 31 3 Notaries of the Criminal Court 35 4 Other Foreign Officials 36 The Lords of the Contado and the Question of Jurisdiction 37 Criminal Jurisdiction and the Reporting of Crime 42 Apprehension of Malefactors 50 2 The Formation of a Criminal Inquisition 54 The Use of Private Accusatio Procedure at Reggio 55 Inquisitions ex officio 56 Public Officials and the Initiation of Inquisition Trials 65 Inquisitions Initiated by Private Parties 66 Features of the Inquisitio ex querela 67 The Narrative of the Crime 82 Citation 84 The Trial Process 85 3 Fama, Notoriety, and the Due Process of Law 88 Fama, Public Knowledge, and Proof 89 Semel malus, semper malus? The Presumption of Innocence and Mala Fama 96 Ordinem iudiciarium non servare, est iuris ordinem servare: Notoriety and Due Process 104 viii contents 4 Proofs, Defenses, and the Determination of Guilt or Innocence 114 Full and Certain Proof: Confession and the Problem of Torture 115 Testimony and Witnesses 123 Medical Evidence and Expert Testimony 127 Protections in Municipal Law and the Right to a Defense 133 Responses: Confessions, Denials, and Exceptions 135 Fama and the Defense 136 5 Resolutions: Conviction, Absolution, and Mitigation 147 The Weighing of the Evidence: Statutory Proofs vs. Judicial Discretion 149 Contumacy, Conviction in absentia, and the Criminal Ban 151 Judicial Discretion in Punishment 157 Pecuniary Punishments 163 Shaming Punishments, Corporal Punishments and Capital Punishments 164 Incarceration 167 Capital Punishments 173 Mitigation and Instrumenta Pacis 177 Signorial Participation in the Administration of Justice: Instruction, Cancellations, and Pardons 192 Gratia and the Cancellation of Proceedings 197 Conclusion 202 Bibliography 205 Index of Names 216 Index of Places 217 Index of Subjects 218 Acknowledgments Many thanks are due to Sarah Rubin Blanshei, who first advised me to consider Reggio Emilia as a case study. This project owes much to her generous advice, and I am especially grateful for her careful reading of the full manuscript. I am also very grateful to the anonymous reader of Brill for the valuable advice and the careful reading of the manuscript. I would like to thank Marcella Mulder for her patience and help. This project began life as a doctoral dissertation in the Centre for Medieval Studies at the University of Toronto. I am grateful to Mark Meyerson and Lawrin Armstrong for their guidance and advice when this project was in the disserta- tion stage, and to Nicholas Terpstra, Giulio Silano, and Laura Ikins Stern, for their valuable feedback on that early version of this project. Dr. Gino Badini, director of the Archivio di Stato di Reggio Emilia (now emeritus), kindly gave me permission to keep a great many sources in the sala di studio for consultation during my research visits to Reggio Emilia. Without this privilege, the present study quite literally would have been impossible. The kindness of all the staff of the Archive made my time there not only productive but also a great pleasure. Many thanks are due to the staff of the Greenlease Library at Rockhurst University, especially Ellie Kohler, for her tireless assis- tance finding and accessing materials. My supportive colleagues in the History Department at Rockhurst University were instrumental in drawing this work to completion. This study has been supported by grants from the Medieval Academy of America and the American Philosophical Society, as well as the Rockhurst University Presidential Grant, and the Center for Catholic Studies at Rockhurst University. There have been many starts and stops along the way, and I am deeply grate- ful to the friends who supported me as this work drew to completion: Natasha Bartels, Faith Childress, Jamie Smith Houghton, Neal Lewis, Aparna Lhila, Trisha Madl, Jaime Malic, Linda Mitchell, Connell Monette, Megan Bishop Moore, Melissa Moore, Marjan Niknam, Andy and Marie Pickard, Joan Marie Stelman, and Shona Kelly Wray (†2012). My gentle friend Carla Valleri (†2015) made me a home in Bologna. I will never walk in the Via Santo Stefano without seeing her there. She will be deeply missed. My greatest thanks is for my family: my mothers, Jill Carraway and Debora Horning, who encouraged my education, and who were simply always there; my wonderful and supportive sister, Debbie Carraway, and sister-in-law, Kara x acknowledgments Stinnett; my aunt and dear friend, Barbara Carraway (†2010); my brother, Eric Miller; my cousin, Julia Harrell; Antonia’s godmother, Tina Baceski; and my dear parents-in-law, Clara Alfano and Catello Vitiello. My father, Byrle Macon Carraway (†1999), left this world far too soon, long before this project began, but he has been with me every step of the way. My daughter Antonia, the joy of my life, has brightened every day. And finally, for his continuous support and encouragement, there are not enough words to thank my beloved husband Massimiliano, sine quo non. Abbreviations ASB Archivio di Stato di Bologna ASRe Archivio di Stato di Reggio Emilia ASRe, Comune ASRe, Archivio del Comune ASRe, Comune, Registri ASRe, Comune, Registri dei decreti e delle lettere ASRe, Giudiziario ASR e, Archivi giudiziari, Curie della città ASRe, Giudiziario, Libri delle denunzie ASRe, Giudiziari, Libri delle denunzie e querele, delle inquisizioni, degli indizi, dei costituti, delle difese e d’altri atti criminali ASRe, Giudiziario, Sentenze e condanne ASRe, Giudiziario, Podestà, Giudici, Governatore. Sentenze e condanne corporali e pecuniarie BSR La Biblioteca del Senato della Repubblica n.d. No date. RIS Rerum Italicarum Scriptores, L.A. Muratori, ed. (Milan: 1723–1751) RIS II Rerum Italicarum Scriptores, L.A. Muratori, ed.; revised and cor- rected by G. Carducci and V. Fiorini (Città di Castello: S. Lapi, 1900–1917) A Note on the Latin Transcriptions Throughout this study, I chose to transcribe in the notes the Latin text that my interpretations rest upon. I did this because the vast majority of sources used in this study are unpublished documents that would