Gruesome Penalties and Merciful Pardons: Bologna, 1250–1454
The traditional pictures of criminal justice in late medieval and Renaissance Italy was one of penal brutality combined with a general weakness in governmental enforcement of the law. It stressed cruel punishments, torture, and the growth of inquisitio procedure and summary justice as key elements in state formation, and the use of private arbitration and peace accords as a sign of failure in criminal prosecution. Moreover, it viewed the development of a more effective system in stages, beginning with the triumph in the 13th century of 'public' inquisitorial procedure over 'private' accusatorial procedure (in which the complainant took responsibility for prosecution of the alleged crime). In recent decades, however, revisionist historians have emphasized conflict resolution and not punishment as the primary goal of the criminal courts, as well as the continued vitality of accusation procedure, a minimal use of torture and the amelioration of physical penalties as characteristics of the period. In this paper I use the copious criminal court records of Bologna to analyze the typologies of capital punishment and the use of torture and peace accords from the 13th through the 15th centuries. Was there a progressive development from corporal to monetary penalties as Trevor Dean has postulated, or did penalties become more severe, as Raffaella Pini and Valentina Vestrucci have argued? I show how and why the continued use of torture and gruesome penalties for major crimes coexisted with an increased use of the peace accord to mitigate penalties for minor crimes. I argue that changes and fluctuations in criminal justice procedures and practices during this period correlate with powerful and continuous challenges of war and factional strife and not to a linear process that resulted in the emergence of a stronger state in the 16th century.
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